How often do you get to read the work of “a leading critical tax theorist” who offers a “subversive” reading of an IRS Revenue Ruling? At JOTWELL, Lily Kahng describes a new piece by Anthony Infanti:
Gay marriage opponents love to fear monger about the slippery slope of extending marriage beyond the legal union between one man and one woman. They prophesy that if we allow marriage between two men or two women, we will descend into a Gomorrah of incest, adultery, polygamy, and animal love. In his essay, Big (Gay) Love: Has the IRS Legalized Polygamy?, Anthony Infanti makes subversive use of this repugnant meme to advance his view that tax results should not depend on marriage in the first place.
Infanti’s argument focuses on an analysis of Revenue Ruling 2013-17 (the Ruling), which recognizes same-sex marriages for federal tax purposes. Issued in 2013, after the U.S. Supreme Court invalidated section three of the federal Defense of Marriage Act, the Ruling announces the IRS’s adoption of a general interpretive rule that “for Federal tax purposes … recognizes the validity of a same-sex marriage that was valid in the state where it was entered into, regardless of the married couple’s place of domicile.” Infanti interprets the Ruling to apply to a limited subset of same-sex marriages, in contrast to what he calls the “alternative interpretation” of the Ruling, which reads the Ruling more expansively to cover a larger number of same-sex marriages. Infanti claims that under alternative interpretation of the Ruling, the IRS would also have to recognize the validity of plural marriages.
In the underlying article, Infanti disagrees with the interpretation of the Ruling I offered in this post. (I’m cited as one of the proponents of the “alternative interpretation” given above.)
Infanti’s piece is thorough and interesting and it is quite possible that his reading is ultimately the better one. As I noted previously, the IRS’s position on questions of choice of law and marriage has sometimes surprised or confused me.
That said, it seems to me that Infanti’s reading of the IRS Revenue Ruling also would require plural marriages to be recognized in some circumstances. Consider the facts of JB v. HB, which I discuss in my article on DOMA and federal choice of state law:
They lived in Massachusetts and married there in 2006, then relocated to Texas two years later. Alas, J.B. then sought a divorce from his spouse in Texas divorce court. The trial court took jurisdiction over the case, but the state of Texas intervened and got a writ of mandamus from the Texas Court of Appeals. The Texas appeals court held that a same-sex couple could not be treated as married in Texas, and hence could not divorce. The court simply observed that the “Texas Constitution provides that ‘[m]arriage in this state shall consist only of the union of one man and one woman,”’ and that the “rule contains no exceptions for marriages performed in other jurisdictions.” Any same-sex marriage must be abandoned at the Texas border. And yet–though the Texas court did not dwell on this fact–the couple’s marriage almost certainly remained valid back in Massachusetts, and the couple “likely . . . continue[d] to accrue rights and responsibilities vis-à-vis each other by virtue of their status as spouses.” Thanks to the conflict between Texas and Massachusetts, J.B. and H.B. had two marital statuses simultaneously.
At least as Texas law stands now, J.B. and H.B. would apparently be able to marry (people of the opposite sex) in Texas, because Texas does not recognize them as married. And even under Infanti’s view of the revenue ruling, both marriages, the original Massachusetts marriage and the hypothetical new Texas marriage, would be valid.
Now I doubt that scenario is going to be common, but I also doubt the scenario in Infanti’s piece is going to be common. And as I say, it may well be that Infanti’s reading is ultimately the better one. But it looks to me as if both his reading and the conventional one could result in plural marriage being recognized in some circumstances.