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February 6, 2002 State of New Jersey (609) 588-3675 Fax RE: Filing Status of Civil Union spouses and the New Jersey Gross Income Tax Dear Ms. Wooley, I would like to thank you for the informative informal administrative hearing that initiates the appeal process of George DeCarlo versus Division of Taxation, Department of the Treasury of the State of New Jersey. The issue involves the fact that civil unioned persons are not single and deserve the right to file separately or jointly as they so choose and deserve. Same-sex couples who are civil unioned by virtue of the contract established in the State of Vermont deserve and demand to be treated equally under the laws of the State of New Jersey and under provisions in the United States Constitution. It may be understandable that the Conference and Appeals Branch within the Division of Taxation may only develop policies and procedures from regulations determined by laws passed by the New Jersey legislature or decisions made by the New Jersey Supreme Court, but this poses an ethical dilemma, much less a legal one, for the Branch. Integration of sexual orientations other than heterosexual into full and complete citizenship needs the necessary step of same-sex couples having this contractual union recognized and honored by the State of New Jersey. Otherwise, same-sex couples of gays, lesbians and bisexuals in civil unions are denied basic constitutional rights. The Branch must be on the side of the law derived from sections of the U.S. Constitution such as the Full Faith and Credit Clause when in opposition to an unjust or contrary policy or law. Additionally, the State of New Jersey passed a Law Against Discrimination that was amended in 1992 adding "affectional or sexual orientation" as a category to the law. The current filing status structure of the state’s Gross Income Tax violates, at the very least, the spirit of such public policy legislation. The intent of such law is to provide full and equal rights under the law regarding areas such as "sex" (gender) and "affectional or sexual orientation" among others. Again, policies and procedures developed from regulations originating from civil rights law need to focus on the greatest breadth and extent possible of inclusion and integration of its populace into the franchise of citizenship. The following questions are not in any particular order and do not represent all possible inquiries or challenges regarding this matter as may be brought up in future venues. 1. Has the Conference and Appeals Branch ever determined that a law or regulation in the New Jersey statutes was unjust, unethical, discriminatory or unconstitutional and took steps to have it changed for the Division of Taxation, Department of the Treasury? And, were there any circumstances involving sex (gender) or affectional or sexual orientation? 2. Has the Conference and Appeals Branch or Division of Taxation ever denied opposite-sex couples in a contract of civil marriage from another state equal protection of the law or refused to recognize their status in opposition to the Full Faith and Credit Clause of the U.S. Constitution? Or, has the Branch or Division denied any other provision under the U.S. Constitution having to do with the contract of civil marriage for opposite-sex couples? 3. Is the Division of Taxation aware of contracts of civil union reserved for same-sex couples in the State of Vermont? 4. Are there any contracts between opposite-sex couples that the Division of Taxation does not recognize for the State of New Jersey? And, are there any joinings between opposite-sex couples that the Division of Taxation does not recognize for the State of New Jersey? 5. Does the Division of Taxation recognize all opposite-sex weddings from other nations. If so, which ones and why. 6. Does the Division of Taxation recognize all civil marriages from other nations? 7. Does the Division of Taxation recognize common law marriage of opposite-sex couples from other states? And, is common law marriage licensed and/or certified by any state? 8. Does the Division of Taxation recognize same-sex or opposite-sex partners with or without domestic partnership benefits from other states? And, are these partners able to register their joining within any jurisdiction of New Jersey effecting their tax status? 9. Has the Law Against Discrimination been an issue for the Conference and Appeals Branch and the Division of Taxation for cases involving opposite-sex or same-sex couples in civil marriage or civil union, respectfully? 10. Prior to my hearing had a decision been made as to a judgment in my case? 11. Would the Branch please give citations, explanations and copies of cases mentioned such as Koch and Jenkins, and the statutes involving filing a different status between federal and state tax returns when members of civil married couples reside in different states, and New Jersey’s agreement with Pennsylvania extended by the courts through a credit for those working in other states regarding income tax while a resident of New Jersey. Thank you for your aid in this matter, and I look forward to the response from the Conference and Appeals Branch. Sincerely, George DeCarlo |