First Time Home Buyer-Married vs. Union

[Kimokeo]

The First Time Home Buyer:

"S4. If husband and wife wanted to sell the home that the wife owned when they got married, and the husband had not owned a home within the past three years, could he qualify as a first-time homebuyer for the credit even though the wife would not qualify?

A. No. The purchase date determines whether a taxpayer is a first-time homebuyer. Since the wife had ownership interest in a principal residence within the prior three years, neither taxpayer may take the first-time homebuyer credit. Section 36(c)(1) of the Internal Revenue Code requires that the taxpayer and the taxpayer's spouse not have an ownership interest in a principal residence within the prior three years from the date of purchase. The husband may not take the credit even if he filed on a separate return."

source: http://www.irs.gov/newsroom/article/0,, ... 94,00.html

Since the Federal Gov't doesn't recognize civil unions, would this mean one person could own a home and the other could buy their first and get the credit because their marriage isn't recognized?

[Arthur Rubin]

The First Time Home Buyer:

"S4. If husband and wife wanted to sell the home that the wife owned when they got married, and the husband had not owned a home within the past three years, could he qualify as a first-time homebuyer for the credit even though the wife would not qualify?

A. No. The purchase date determines whether a taxpayer is a first-time homebuyer. Since the wife had ownership interest in a principal residence within the prior three years, neither taxpayer may take the first-time homebuyer credit. Section 36(c)(1) of the Internal Revenue Code requires that the taxpayer and the taxpayer's spouse not have an ownership interest in a principal residence within the prior three years from the date of purchase. The husband may not take the credit even if he filed on a separate return."

source: http://www.irs.gov/newsroom/article/0,, ... 94,00.html

Since the Federal Gov't doesn't recognize civil unions, would this mean one person could own a home and the other could buy their first and get the credit because their marriage isn't recognized?

Yes, definitely. Quasi-community-property laws might cloud the issue by assigning an ownership interest to the other "spouse", however.

[DoingHomework]

Warning: What follows is unadulterated personal opinion...

I am not a lawyer but I cannot for the life of me understand why the intelligent lawyers and judges in this country can tolerate the byzzantine situation that has developed with respect to civil unions and same sex marriages that are legal in some states. Why does the "full faith and credit clause" Article IV? of teh constitution not apply? (Yes I know about the Defense of Marriage Act, but why is that also not unconstitutional?)

I am a heterosexual man married to one heterosexual woman, not that that matters. But this ridiculuous situation where people can be legally married is a homosexual partner in one state, legally married to another other-sex partner in another state (because the first marriage isn't recognized) and have different property interests and tax liabilities/status in the various states and to the IRS is just plain ridiculous! A sane judge would say it tortures reason.

Yet the supposedly learned and upstanding ladies and gentlemen of our judiciary, legislative, and executive branch sit around with their heads in the sand ignoring teh stupidity of the issue and pontificating about legal theories involved.

Ok, I'll step off my soap box...

But seriously, this is the epitome of silliness. The only reason the issue comes up is because of shortsightedness and bigotry,yet real people are deprived of their rights - life, liberty, and teh pursuit of happiness..

[Quixote]

Yes, definitely. Quasi-community-property laws might cloud the issue by assigning an ownership interest to the other "spouse", however.

That apparently wouldn't effect the credit. As I read the statement below, if A & B, who are not married, bought a home and A is eligible for the credit, but B is not, the only "reasonable method" of allocating the credit would be to allocate it all to A, regardless of the actual ownership interests.

Part II Credit
Line 1. If two or more unmarried individuals buy a main home, they can allocate the credit among the individual owners using any reasonable method. The total amount allocated cannot exceed the smaller of $7,500 ($8,000 if you purchased your home in 2009) or 10% of the
purchase price. See Purchase price on page 3.
Note. A reasonable method is any method that does not allocate all or a part of the credit to a co-owner who is not eligible to claim that part of the credit.

Form 5405, First Time Homebuyer Credit

[Nikki]

This is for DoingHomework - your answer lies outside the arena of law, and runs smack dab into religious and moral beliefs.

Today, large chunks of the country believe that a marriage is only between a hetero male and a hetero female and anybody who is not hetero is a blasphemy and abomination before GOD, and not worthy of the holy sacrement of marriage. Americans, by and large for our entire history, have tended to be prudish, moralistic and Biblically strict regarding sex and what is "normal." And that is another discussion for another evening.

Personally, I think it is all a bunch of horse manure. I think non-hetero couples should have the same options at joy and misery that hetero couples have. Also, from a strictly economic and tax point of view, non-hetero couples really get screwed - right in the ol' wallet/purse.

You omitted the qualifiers "in public and when the lights are on"

Behind their closed doors, Americans are just as kinky and sexually open-minded as are bonobo apes.

[DoingHomework]

>>your answer lies outside the arena of law, and runs smack dab into religious and moral beliefs.

Yes...but what is moral about denying your fellow citizens the same kind of right to free expression that your forebearers founded this country on?

But I fear I have already strayed too far out on that limb.

What gets me is the legal aspect of it. If we want to ban bonobo apes rom doing whatever they do then that's fine. But if Arizona tried to ban Massachussetts bonobos from their kinkiness the courts would not stand for it yet that is exactly the situation we have. Two bonobos that do something entirely legal and acceptable in one place are legally punished in another state. And the courts are too gutless to do the right thing.

There are so many situations that can arise here: a same sex couple is married in MA, adopts a child (could be the natural child of one of them). Their employer transfers them to Arizona and suddenly the child and spouse are denied healthcare an suffer other damages. Perhaps the employer is responsible for taking an action that caused damage. Things liek this used to come up with child custody until the courts said "enough." We have moved backwards. It is time for the Supreme Court to step in and act like grown-ups.

I really don't care what people think and believe people have a right to their own opinion. I do not necessarily support (or object to gay marriage). But this situation is ridiculous and is an embarrasment to any intelligent person that thinks it through rationally. I one state chooses to allow same-sex marriages then those contracts should be honored in all states just like any other contract is.

These legal arguments about property ownership under civil unions etc are fine but they are only necessary because of defects in our court system that make it fail to uphold a clear article of the constitution.

Oops how did that soap box get back under my feet?

[Arthur Rubin]

There are so many situations that can arise here: a same sex couple is married in MA, adopts a child (could be the natural child of one of them). Their employer transfers them to Arizona and suddenly the child and spouse are denied healthcare an suffer other damages. Perhaps the employer is responsible for taking an action that caused damage.

This has to do with state regulation of health insurance. That being said, my (most recent) employer recognizes civil unions for the purpose of spousal insurance (adoption is protected by the full-faith-and-credit clause, even adoption by a group that the new state doesn't recognize as a family) even if the employment and residence states do not. (It is headquartered in MA, but that doesn't effect insurance.) The insurance isn't deductable nor excludable for Federal tax purposes, and the company and individuals may run afoul of the rule that you can't purchase insurance for someone you don't have a legal connection to, but the company does do it.

[DoingHomework]

Well, I know this is off topic and I should drop it. But what about this situation:

A and B marry in Massachussetts. They are the same sex. Later they adopt a child in Mass. Let's say the same judge issues the marriage order and the adoption order just for kicks.

The family moves to Arizona. Arizona does not recognize the marriage yet is obligated to recognize the adoption order under FFaC. The only reason Arizona can ignore the Mass order is because of teh sex of the parties. We have two court orders from the same judge and the same court yet one is ignored because the pro-family people want to break up this family.

It seems to me that Congress has given states the right to selectively ignore part of the constitution yet Congress does not have that authority. Only an amendment can do that.

I'm sure there is some legal argument to justify this. And I am not a constitutional scholar. But the bottom line is that the constitution is an elegant and simple document. It is very easy to understand. Yet it has been twisted by politicians in this case to justify discrimination. And in 15 years no judge has had the guts to strike the Defense of Marriage Act for being unconstitutional.

[DoingHomework]

adoption is protected by the full-faith-and-credit clause, even adoption by a group that the new state doesn't recognize as a family).

The Arizona legislature is attempting and end-run on this as well. A new law does not recognize the adopted children of a marriage that is not recognized as dependents for benefits purposes for State employees.

There is obviously a lot more to it. This law was signed only a week or two ago and the AG's opinion on how to enact it is still not out.

But it is just another example of how real people are being harmed and denied rights while judges try to parse the constitution to avoid polically unpopular decisions. I know this has always happened but, as a lay person who does not even feel strongly one way or the other about the underlying issue of same-sex marriage, The situation is idiotic and an embarrassment to logic and our entire judiciary.

[jg]

But it is just another example of how real people are being harmed and denied rights while judges try to parse the constitution to avoid polically (sic) unpopular decisions.

What rights are being denied?
Are you saying there is a right to be married?
A right to adopt?

In regard to the recognition of another state's laws does that always mean that every state has to agree to allow whatever the other state has deemed legal? That does not seem to allow for a state to be able to enforce their own more restrictive laws. (Admittedly, I have not studied the decisions of the Supreme Court on this issue; so cite(s) would be appreciated.)

Just my curiosity at work here, thanks.

[DoingHomework]

There is a right to equal protection. My understanding is that this all started with a Hawaii court ruling that the same-sex marriage issue was subject to "strict scrutiny." This apparently scared the bejeezus (I'll put my own sic this time) out of a certain crowd so we got the Defense of Marriage Act. Strict scrutiny would likely have required proof that there is a compelling government interest in a ban on same-sex marriage and that the ban was the least restrictive way to achieve goal. Strict scrutiny would be a hard test to pass when you can't make the "because god commanded it" argument.

Perhaps "right" was not the correct word to use. State employees in Arizona are entitled to certain benefits including insurance for spouses and dependents. My state is now denying hundreds of employees that entitlement solely on the basis that the court order granting them a marriage was entered into in another state and does not fit the definition of a marriage in Arizona. Change "marriage" to "adoption" in the preceding sentence and that action would be precluded by Article 4. As far as I am aware the constitution does not give Congress the authority to pick and choose which court orders states are compelled to respect from other states. If Ohio declared that granting custody to fathers was against the wishes of its citizens or undermined the moral fabric of Ohio, it would still lack the authority to refuse to honor Colorado custody orders granting custody to a father.

You don't need a law degree to see the silliness here. But you do have to resort to technical arguments to defend the current state of affairs. I'd guess the same arguments were made to keep blacks and women from voting.

[DoingHomework]

In regard to the recognition of another state's laws does that always mean that every state has to agree to allow whatever the other state has deemed legal? That does not seem to allow for a state to be able to enforce their own more restrictive laws.

Clearly a state can have and enfore more restrictive laws than another state. But the full faith and credit clause requires it to respect the court decisions, contracts, etc. of other states. This was apparently true with respect to marriage since Congress acted uncharacteristically quickly when there was the suggestion that it be applied to marriage. If I get married in Arizona, Massachussets does not have the right to treat my marriage any differently than if I had gotten married in that state.

[DoingHomework]

And I have to add the important qualifier to my previous post that I am a man married to a woman. Were our sexes different we would not enjoy equal protection.

[jg]

Apparently at least one law professor agrees that the Defense of Marriage Act will be ruled unconstitutional.
The article at http://www.frc.org/get.cfm?i=BC04D03 ends with:

Either through a Full Faith and Credit decision or through a substantive due process decision, it is all but certain the Supreme Court will legalize same-sex "marriage". It is highly unlikely that the Supreme Court will allow a federal statute such as doma to interfere with this newfound fundamental "right to engage in homosexual conduct." Thus, the sole remaining recourse against such runaway judicial activism is through an amendment to the Constitution of the United States. We delay at our peril.

Gerard V. Bradley is Professor of Law at the University of Notre Dame School of Law. William Saunders is Senior Fellow at the Family Research Council.

I am still trying to find any basis for "this newfound fundamental "right to engage in homosexual conduct" " other than hedonistic self indulgent meism (sic).

Just one man's opinion, yours may vary significantly.

[DoingHomework]

It's so nice when the opposition makes your point for you.

I believe the "newfound fundamental right to engage in homosexual conduct" is a reference to the striking, over the last 20 years or so, of numerous states' laws banning such and similar acts. I am not familiar with the arguments in those cases but I believe the basis is in the fundamental right to privacy.

The right to marry is also included among the fundamental rights so any law restricting marriage to a mixed sex couple would undoubtedly require a strict scrutiny test.