T.C. Memo. 2009-166
UNITED STATES TAX COURT
CHARLES MERRILL, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
CHARLES E. MERRILL, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 22608-07, 3058-08. Filed July 13, 2009.
Charles E. Merrill, pro se.
Kathleen A. Tagni, for respondent.
MEMORANDUM OPINION
KROUPA, Judge: These cases are before the Court on
respondent’s motions for partial summary judgment under Rule
121.1 Respondent determined an $807,330 deficiency in
1
All section references are to the Internal Revenue Code in
effect for the years at issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure, unless otherwise
indicated.
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petitioner’s Federal income tax for 2004 and a $28,974 deficiency
for 2005. Respondent also determined additions to tax for
failure to file a timely return under section 6651(a)(1), failure
to pay tax timely under section 6651(a)(2), and failure to pay
estimated tax under section 6654(a) for 2004 and 2005 (the years
at issue). Petitioner concedes all respondent’s determinations
in the deficiency notices except the correct filing status of
petitioner. We must decide whether petitioner, who was unmarried
but in a committed relationship with another man during the years
at issue, is entitled to married filing joint status. We hold
that he is not. Accordingly, we shall grant respondent’s motions
for partial summary judgment and, because petitioner has conceded
all other issues, we shall enter decisions for respondent.
Background
The facts we recite are undisputed facts included in the
stipulation of facts and accompanying exhibits and matters
admitted in the pleadings or motions or presented in the parties’
oral arguments.
Petitioner is a well-known gay rights activist and artist
and a millionaire. He is the cousin of the founder of Merrill
Lynch and was married, for 23 years, to the late Evangeline
Johnson Merrill, an heiress to the Johnson & Johnson Company.
Petitioner began a relationship with Kevin Boyle shortly after
petitioner’s wife passed away. He and Mr. Boyle have been
together for more than 18 years. Petitioner and Mr. Boyle lived
in North Carolina during the years at issue. They participated
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in a commitment ceremony in 2004, but North Carolina did not
recognize same-sex marriages. Petitioner and Mr. Boyle were
legally married in 2008 after moving to California.
Petitioner failed to file a tax return for either of the
years at issue. Respondent contacted petitioner about filing
income tax returns. Petitioner responded with a letter stating
that he was not evading taxes, but refused to pay taxes as an act
of civil disobedience advocating same-sex marriage equality.
Respondent prepared substitutes for returns for the years at
issue and issued deficiency notices to petitioner. In the
substitutes for returns, respondent determined petitioner’s
filing status to be single.
Petitioner resided in North Carolina when he filed the first
petition regarding his return for 2004, and he resided in
California when he filed the second petition regarding his return
for 2005. In both petitions, petitioner argued that he must be
accorded married filing joint status, rather than single status,
because of his long-term domestic partnership with Mr. Boyle.
Respondent filed motions for partial summary judgment on
whether petitioner is entitled to married filing joint status for
the years at issue. Respondent argues that petitioner is not
entitled to this status because he was not married in the years
at issue and he did not file a joint return for those years. We
agree and discuss each of respondent’s arguments in turn.
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Discussion
We must decide whether petitioner is entitled to married
filing joint status for the years at issue. Petitioner was not
married during the years at issue. He was not married under the
laws of the State of his domicile, North Carolina, nor in any
other State. Moreover, petitioner did not file a return for the
years at issue and, therefore, is not entitled to married filing
joint status.
We turn now to married filing joint status. Every married
individual (as defined in section 7703) who makes a single return
jointly with his spouse under section 6013 is subject to married
filing joint return status. Sec. 1(a)(1). The determination of
whether an individual is married shall be made as of the close of
the taxable year. Sec. 7703(a)(1). Whether a taxpayer is
married for Federal income tax purposes is determined by
reference to the laws of the State of the taxpayer’s marital
domicile. See Sullivan v. Commissioner, 256 F.2d 664 (4th Cir.
1958), affg. 29 T.C. 71 (1957); Dunn v. Commissioner, 70 T.C.
361, 366 (1978), affd. without published opinion 601 F.2d 599 (3d
Cir. 1979); Lee v. Commissioner, 64 T.C. 552, 556-559 (1975),
affd. 550 F.2d 1201 (9th Cir. 1977). Petitioner admits he was
not legally married for either of the years at issue but argues,
nonetheless, that he should be allowed to file joint returns
because he was in a long-term committed relationship with his gay
partner and North Carolina did not recognize same-sex marriage.
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Despite petitioner’s argument, a taxpayer must file a joint
return with his or her spouse and it must be signed by both
spouses to claim the married filing joint status. See secs.
1(a)(1), 6013(a); sec. 1.6013-1(a)(2), Income Tax Regs. This is
true even in the case of a delinquent return. See Columbus v.
Commissioner, T.C. Memo. 1998-60, affd. without published opinion
162 F.3d 1172 (10th Cir. 1998). We have held that where a
taxpayer did not file a return and a substitute for return was
prepared using single filing status, the taxpayer may claim
married filing joint status only by subsequently filing a return.
See Millsap v. Commissioner, 91 T.C. 926, 937 (1988). Here,
petitioner never filed a return for the years at issue.
Accordingly, he is not eligible for married filing joint status
with respect to these years.
Petitioner further argues that the Internal Revenue Code
discriminates against same-sex couples in a manner that violates
their constitutional rights by not allowing them to file joint
tax returns.2 We need not address his constitutional claims.3
2
Petitioner also challenges the constitutionality of the
Defense of Marriage Act (DOMA), Pub. L. 104-199, 110 Stat. 2419.
DOMA has no bearing on petitioner’s filing status, and its
constitutionality is irrelevant to our holding. See Mueller v.
Commissioner, 39 Fed. Appx. 437 (7th Cir. 2002), affg. T.C. Memo.
2001-274.
3
Similar constitutional challenges brought by same-sex
couples, married persons, and single persons have been
consistently denied. See Mueller v. Commissioner, 39 Fed. Appx.
437 (7th Cir. 2002) (same-sex couple), affg. T.C. Memo. 2001-274;
Druker v. Commissioner, 697 F.2d 46 (2d Cir. 1982) (married
persons), affg. in part and revg. in part 77 T.C. 867 (1981);
Demars v. Commissioner, 79 T.C. 247 (1982) (married persons);
(continued...)
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We conclude that respondent properly determined single
filing status for petitioner. Accordingly, we hold that
petitioner is not entitled to married filing joint status for the
years at issue.
In reaching our holding, we have considered all arguments
made, and to the extent not mentioned, we consider them
irrelevant, moot, or without merit.
To reflect the foregoing,
Decisions will be entered
under Rule 155.
3
(...continued)
Kellems v. Commissioner, 58 T.C. 556 (1972) (single person),
affd. 474 F.2d 1399 (2d Cir. 1973); Mueller v. Commissioner, T.C.
Memo. 2000-132 (same-sex couple), affd. without published opinion
87 AFTR 2d 2001-2052, 2001-1 USTC par. 50,391 (7th Cir. 2001);
Brady v. Commissioner, T.C. Memo. 1983-163 (single person), affd.
without published opinion 729 F.2d 1445 (3d Cir. 1984); see also
Mapes v. United States, 217 Ct. Cl. 115 (1978); Jansen v. United
States, 567 F.2d 828 (8th Cir. 1977); Barter v. United States,
550 F.2d 1239 (7th Cir. 1977); Johnson v. United States, 422 F.
Supp. 958, 967 (N.D. Ind. 1976), affd. sub nom. Barter v. United
States, 550 F.2d 1239 (7th Cir. 1977).