Marriage and taxes: a deduction to be taken with a grain of SALT

REUTERS/Chip East

January 11, 2023 - The institution of marriage has been around long before the Internal Revenue Code (the "IRC") was legislated into existence. In fact, the state and local tax ("SALT") deduction was first enacted by President Abraham Lincoln and the Republican Congress during the Civil War as a temporary federal income tax to fund the Union army. Lowry, P.A. (2022) "History of the SALT Deduction." Chamberlain Hrdlicka, Feb. 11, 2022 (accessed: Dec. 5, 2022).

Notably now, and unpredictable at the time of its enactment, the SALT deduction is one of political relevance and has evolved into a marriage penalty.

The SALT deduction has gone through a number of metamorphoses. The IRC first recognized a full deduction for all payments made by taxpayers to the state, including sales, property, and excise taxes, in addition to certain state income taxes, and even federal taxes. However, in 1913, and ever since, there has been an unending effort to minimize, if not completely eliminate, the SALT deduction. For example, the Tax Reform Act of 1986 eliminated the sales tax from the SALT deduction. However, in 2004, the sales tax deduction was partially restored, and taxpayers were forced to choose between either deducting sales tax or state and local income taxes.

In 2017, the SALT deduction again was the subject of partial elimination. This time, as part of the legislation's attempt to engage in legislative tax simplification, the SALT deduction was limited in amount to $10,000 per income tax return. The stated justification for this limitation was that the Act increased the standard deduction, significantly reducing the number of taxpayers who claim the SALT deduction. See, Grant A. Dreissen, "The Salt Cap Overview and Analysis," Congressional Research Service (March 6, 2020).

Simply put, the $10,000 amount applies to both single and jointly filed returns. Without even noticing, the SALT deduction penalizes married couples that file jointly in that they may only deduct up to $10,000 on one return.

The inequitable result can be gleaned by comparing the amount of the SALT deduction that a married couple would be able to deduct on their jointly filed return, versus the amount that each partner would be able to take on their individual returns, if they were still single. As single individuals, the husband and wife would each be able to deduct up to $10,000 on each of their own returns, totaling $20,000 between the two of them; however, if they were to file one joint return as a married couple, they would only be able to deduct up to $10,000 between the two of them.

The discrimination against married couples cuts even deeper than this. Should a married couple elect to file as married filing separately; each married taxpayer would be entitled to deduct only $5,000 as a SALT deduction. Id. This tax inequity goes against deep rooted American beliefs and values to advance or perpetuate the advancement of the family unit. In other words, the road to tax inequity was paved with good intentions.

There have been numerous attempts to either modify or repeal the limitations on the SALT deduction. For example, legislation introduced in the 116th Congress attempted to modify the SALT cap, "including proposals that would (1) repeal the SALT cap entirely; (2) increase the SALT cap's value to all taxpayers; [and] (3) increase the SALT cap's value to some taxpayers…." Id. at p. 11. However, none of these proposed modifications have been successful. Furthermore, none of these modifications addressed the fact that the SALT cap discriminates against married couples.

As we begin the new year, our country is once again in the hands of a divided government. This presents both parties with the opportunity to work together to repair the inequities in our tax system. Everyone, regardless of their political party, agrees that marriage should not be deterred, but encouraged. Our Supreme Court has already established that the right to marry should not only apply to certain people, but to everyone. Obergefell v. Hodges, 576 U.S. 644 (2015). To ensure that this right to marry remains inviolate, the Congress, with overwhelming bipartisan support, recently enacted the Respect for Marriage Act, Public Law No. 117-228. The President signed this bill into law on Dec. 13, 2022.

The right to marry therefore is enshrined now in our Constitution and by federal statute. We respectfully submit that it is illogical to promote marriage and extend its constitutional protections but continue to punish those who actually get married. Simply put, basic fairness requires that the SALT deduction should apply to both single taxpayers and married taxpayers in the same manner. By extending the full SALT deduction to married couples, and allowing each party to take the full $10,000, totaling $20,000 per married couple, both political parties may claim victory. After all, wedding bells should usher in years of joy, not bad tax policy!

Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias. Westlaw Today is owned by Thomson Reuters and operates independently of Reuters News.

James J. Mahon is a shareholder in Becker & Poliakoff. He can be reached at jmahon@beckerlawyers.com.

Samantha A. Lesser is an attorney in Becker & Poliakoff's civil and criminal tax controversy practice in New York. She can be reached at salesser@beckerlawyers.com.