Discussion:Local Law
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Revision as of 16:01, 20 January 2009 HAPPY TAX (Talk | contribs) (Jeannec, you bri) Next diff → |
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| + | {{ForumReplyPost|UserID=HAPPY TAX|Date=20 January 2009|Text=Jeannec, you bring up an excellent point that probably wasn't an issue when the archaic statute was written. Under Supreme Court decisions in recent years, same sex couples have more rights and freedom than heterosexual couples. That's another reason most people consider the statute not only unenforced but unenforceable. The problem is that it hasn't been tested so it remains sitting there in Pub 17, and I feel more stupid every year when I have to mention it to clients. }} | ||
Revision as of 16:01, 20 January 2009
Discussion Forum Index --> Basic Tax Questions --> Local Law
Discussion Forum Index --> Tax Questions --> Local Law
| 18 January 2009 | |
| The IRS still has the caveat about a dependent unless it voliates local law. Well, Florida is still one of the states that has an anti-cohabitation law. Have there been any recent court tests of the regulation or is it code? I doubt that anyone has been prosecuted or dependency denied for a couple of generations based on co-habitation.
I usually show the client the information in Pub 17 and tell them to contact the ACLU. However, I don't have access to a good search tool to see if a Tax Court has taken a position that being in voliation of an unforced law does not fall under the local law exception. My search of TA found on only a suggestion by Kevin back in 2007 that it may not be enforceable. | |
| 18 January 2009 | |
| Florida - of all states - still prohibits cohabitation? All of those Seniors not wanting to lose their Social Security by re-marrying and living in sin!!!!????? Oh come now. What a backwards legislature to not take their blinders off and see reality! | |
| 19 January 2009 | |
| Lots of case law on this. Yes, the Tax Court takes the position that local law controls. In fact, one poor soul from Indiana lost a dependency exemption for his ex-wife because of Indiana's cohabitation rule.
To change this rule, one of 2 things must occur: 1) An Act of Congress; or 2) The cohabitation law must be declared unconstitutional or invalid. | |
| 19 January 2009 | |
| I agree wiht Riley2, inforced or not the law is the law until it is no longer the law. taxea | |
| 19 January 2009 | |
| Reality. I would take the position to first advise the client of the possibility that the IRS would deny the exemption, and I am not a lawyer who could interpret whether their specific situation violates the local law. So I would not make a presumption that it does. (I can't speak for other areas other where I practice, which may have very excrutiating concrete wording about cohabitation.)
And I would only start worrying if unmarried couples started being taken away in handcuffs. In fact who knows, kissing your donkey with a straw hat at high noon in town square could also be against the law. | |
| 19 January 2009 | |
| Kirthe, playing “house” in Florida results in the loss of the dependency exemption. See Sheral Jackson Martin v. Commissioner, TC Memo 1973-136. | |
| 19 January 2009 | |
| Minnesota is in the same boat. They have a statute that reads something like ... A man having sexual intercourse with an unmarried woman shall be considered a misdemeanor. Can't find the statute right now but it reads something like that.
Point is, there is no law against cohabitation .. you may live together you just can't have sex. So are you going to ask a person if they had sex with each other. I don't. | |
| 19 January 2009 | |
| That fine. In Massachusetts, there isn't a law against cohabitation with unmarried persons, but there is against fornication with such. I don't ask about the sex activity of my clients.
I guess I'll 'believe' everyone is waiting for that special authorized moment. | |
| 19 January 2009 | |
| Tax Court shifts the burden of proof in cohabitation cases to the taxpayer. Thus, in Florida, it is up to the taxpayer to establish that he was merely sharing costs with the alleged cohabitant, or that their relationship is merely Platonic. This is typical of the guilty until proven innocent attitude of the IRS and the Tax Court. | |
| 19 January 2009 | |
| Find an attorney who wants fame and challenge this with a test case, assuming the IRS even had the stomach to challenge it under the incoming administration. It is extremely unlikely the local law provision of the Code would hold up under current US Supreme Court jurisprudence in the area of privacy. The Court has greatly reduced the scope of a state's authority to dictate private behavior, and this doctrine is the foundation of both Tax Court and appellate cases upholding this provision. | |
| 19 January 2009 | |
| Riley ... Thanks for the information regarding the Tax Courts ... so no recent cases overturning.
As a tax preparer, I am not very worried about a client lossing a dependency but rather me being slapped with a Cir 230 sanction. § 10.22(a) In general. A practitioner must exercise due diligence — (1) In preparing or assisting in the preparation of, approving, and filing tax returns .... They are living together and have children ... not much due dilegence necessary! Also, some should look up the definition of Cohabit: 1. to live together as husband and wife, usually without legal or religious sanction. 2. to live together in an intimate relationship. 3. to dwell with another or share the same place, as different species of animals. link Cohabit | |
Death&Taxes (talk|edits) said: | 19 January 2009 |
| What is ironic here is that state courts may not set legal precedents for claiming exemptions through divorce agreements. In these cases, IRS wants their 8332 form, or the like, in order for the non-custodial parent to be able to claim the exemption. And as one presenter at a seminar put it, the 8332 calls for an unconditional release of the exemption, while most court ordered agreements give the non-custodial parent the exemption in return for the payment of support. | |
| 19 January 2009 | |
| Just for the record the MN. statute reads ... (609.34) "When any man and single woman have sexual intercourse with each other, each is guilty of fornication, which is a misdemeanor."
As I indicated before, I'm not about to ask a client if they are having sex with someone. | |
| 19 January 2009 | |
| Didn't President Clinton start the 'Don't Ask, Don't Tell' policy? | |
| 19 January 2009 | |
| Wikipedia states that it was Colin Powell who wrote the policy. | |
Southparkcpa (talk|edits) said: | 19 January 2009 |
| Interesting topic.
Is it not possible to claim the dependency deduction by meeting ALL tests even if they live together. Example, taxpayer allows friend to live in home, rent free, friend has NO income etc.... I don't see this in my practice and seems elementary. How does a "cohabitant" get caught? My assumption is they fail the 1/2 support test? What am I missing? | |
Southparkcpa (talk|edits) said: | 19 January 2009 |
| Forget it, I see my flaw in logic. Imagine, I opened a book! | |
| 19 January 2009 | |
| I am sure the rest of the world would be shocked to see what a mess we make of the first 3 inches or so of the 1040. It's really a prime example of everything that's wrong with the system.
I wonder about that Scutter family, or whatever family it is on TLC, with like 16 children. He's probably got a heck of an AMT problem; I am thinking of the Tax Court case with the lawyer with 11 kids. | |
Death&Taxes (talk|edits) said: | 19 January 2009 |
| On audit 15 years ago, I lost the exemption for the 'boy toy' who lived with this woman, not because of local law and not because of support, but because that year the client spent most of her time teaching in Pittsburgh while her plaything lived in her house in Philly. To meet dependency, they had to reside in the same house. Had I had to file for him, I would have listed his occupation as 'gigolo.' | |
| 20 January 2009 | |
| Snowbird, Florida's cohabitation statute is a little more descriptive. I don't think you really need to read the statute since they have children from the relationship. However, many states recognize common-law marriages -- even those that were created in different states. | |
| 20 January 2009 | |
| Florida Statutes (Full Volume 1993)
CHAPTER 798: ADULTERY; COHABITATION 798.01 Living in open adultery. --- Whoever lives in an open state of adultery shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Where either of the parties living in an open state of adultery is married, both parties so living shall be deemed to be guilty of the offense provided for in this section. History: s. 1, ch. 1986, 1874; RS 2595; GS 3518; RGS 5406; CGL 7549; s. 772, ch. 71-136. 798.02 Lewd and lascivious behavior. --- If any man and woman, not being married to each other, lewdly and lasciviously associate and cohabit together, or if any man or woman, married or unmarried, engages in open and gross lewdness and lascivious behavior, they shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. History: s. 6, ch. 1637, 1868; RS 2596; GS 3519; RGS 5407; CGL 7550; s. 773, ch. 71-136.
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| 20 January 2009 | |
| "If any man and woman, not being married to each other..."
what if they are both male??? | |
| 20 January 2009 | |
| Jeannec, you bring up an excellent point that probably wasn't an issue when the archaic statute was written. Under Supreme Court decisions in recent years, same sex couples have more rights and freedom than heterosexual couples. That's another reason most people consider the statute not only unenforced but unenforceable. The problem is that it hasn't been tested so it remains sitting there in Pub 17, and I feel more stupid every year when I have to mention it to clients. | |
