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Guest Article

Deloitte logo

(From the October 24, 2011 issue of Deloitte's Washington Bulletin, a periodic update of legal and regulatory developments relating to Employee Benefits.)

IRS Releases Guidance: Federal Income Tax Returns for Registered Domestic Partners in Community Property States


The IRS released a set of Questions and Answers to supplement Publication 555 Community Property regarding the preparation of Federal income tax returns for same-sex spouses in California and registered domestic partners in California, Nevada and Washington. The Q&As address various topics, including head of household status, claiming children as dependents and claiming adoption credits.

Referring to both same-sex spouses and registered domestic partners as "registered domestic partners" in the Q&A, the release clarifies among other things:

  • Gross Income—Registered domestic partners must each report half the combined community property income earned by the partners. A partner who has income that is not community income must also report that separate income. Q&A-1.
  • Head of Household—If registered domestic partners pay all of the costs of maintaining the household from community funds, each partner is considered to have incurred half the cost and neither can qualify as head of household. However, if one of the partners pays more than half by contributing separate funds, that partner may qualify as head-of-household. Q&A-3.
  • Social Security Benefits—Since state law generally determines property rights, if Social Security benefits are community income under state law then they are community income for Federal income tax purposes. Q&A-9.
  • Itemized Deductions—A registered domestic partner may itemize or claim the standard deduction regardless of whether his or her partner itemizes or claims the standard deduction. Q&A-10.
  • Adoption Credit—If two registered domestic partners adopt a child, each may qualify to claim the adoption credit on the amount of the qualified adoption expenses paid or incurred for the adoption. However, the partners may not both claim credit for the same qualified adoption expenses, and neither partner may claim more than the amount of expenses that he or she paid or incurred. The adoption credit is limited to $13,170 per child in 2010 ($13,360 per child in 2011). Therefore, if in 2010 two registered domestic partners each paid qualified adoption expenses to adopt the same child, and the total of those expenses exceeds $13,170, the maximum credit available is $13,170, which may be allocated between the partners in any way they agree as long as the amount allocated to a partner is not more than the expenses he or she paid or incurred. Q&A-16.
  • Adoption of Partner's Child—If a registered domestic partner adopts the child of his or her partner as a second parent or co-parent, the adopting partner may claim an adoption credit to the extent permitted under Code § 36C. (Code § 36C does not allow an adoption credit for expenses incurred in adopting the child of a spouse, but the prohibition does not apply to registered domestic partners because they are not spouses under Federal law.) Q&A-17.

No Obligation to File Amended Returns for Tax Years Beginning Before 2010

Are registered domestic partners who filed their Federal income tax returns without regard to community property laws required to file amended returns? The Q&As state that "registered domestic partners who reported community income without regard to community property laws for a taxable year beginning before 2010 are generally not required to amend those returns to report half of the community income."

The release goes on to note that in California registered domestic partners received full community property rights in 2007 and, therefore, they may but are not required to amend their returns for taxable years beginning in 2007, 2008 and 2009. Similarly, in Nevada the community property laws apply to registered domestic partners as of October 1, 2009, so they may but are not required to amend their returns for taxable years beginning in 2009 (to report half of the community income for the period October 1, 2009 to the last day of the partner's tax year). In Washington community property laws apply as of June 12, 2008, so they may but are not required to amend their returns for taxable years beginning in 2009 and in 2008 (to report half of the community income for the period June 12, 2008 to the last day of the partner's tax year).

The Q&As point out that, in any case, if one partner amends his or her return to report one half of the community income the other partner must report the other half. Q&A-19.


Deloitte logoThe information in this Washington Bulletin is general in nature only and not intended to provide advice or guidance for specific situations.

If you have any questions or need additional information about articles appearing in this or previous versions of Washington Bulletin, please contact:

Robert Davis 202.879.3094, Elizabeth Drigotas 202.879.4985, Mary Jones 202.378.5067, Stephen LaGarde 202.879-5608, Erinn Madden 202.220.2692, Bart Massey 202.220.2104, Tom Pevarnik 202.879.5314, Sandra Rolitsky 202.220.2025, Deborah Walker 202.879.4955.

Copyright 2011, Deloitte.


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