Relitigating Seaborn: Taxing the Community Income of California Registered Domestic Partners

Abstract

In this article, professor Cain asserts: The California Domestic Partners Rights and Responsibilities Act (AB 205), passed in 2003, extended significant spousal rights and liabilities to registered domestic partners. All of those rights and liabilities became effective January 1, 2005. Most domestic partners are same-sex couples who do not have the right to marry in California. At least three other states (Massachusetts, Vermont, and Connecticut) similarly recognize either marriages or marital-like relationships between same-sex partners. California is unique, however, as it is the only community property state to grant spousal-like status to same-sex partners. As of January 1, 2005, registered domestic partners are subject to the same community property regime that covers California spouses. In 1930 the Supreme Court ruled in Poe v. Seaborn that community earnings were to be split for federal income tax purposes. There is a serious debate in the tax community about whether or not Seaborn should be applied to California registered domestic partners. The IRS recently opined in a chief counsel advisory that Seaborn does not apply. Prof. Cain disagrees with the IRS and takes the position that, whether or not Seaborn is good tax policy, it is a solid 75-year-old precedent that should be applied to registered domestic partners. She further predicts that California taxpayers will likely have to litigate the issue to establish the correct tax reporting rule.