Revisiting a History of Marriage in the Tax Code, Part 7

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Back in 2014 and into 2015, I posted a multi-part series of posts about the history of marriage in the tax code. In 2016 I was asked to condense that series into a CPE presentation. Here are excerpts from that presentation. This series of posts will cover a lot of the same ground as was covered three years ago, but hopefully with a little bit fresher perspective.


After Poe v. Seaborn, proposals to equalize the tax treatment of married couples were floated in 1933, 1934, 1937 and 1941, but none of the proposals were adopted.

The closest Congress came to making changes to the tax system came in 1941, when the House Ways and Means Committee proposed a mandatory joint return, with married couples being taxed on their combined income without the option to file separate returns or apply community property laws. This would have resulted in a tax increase on all two-income married couples. As Boris Bittker explains:

(T)wo unmarried taxpayers with separate sources of income would have to pay a heavier tax if they got married than if they lived together without benefit of clergy, and many married couples would be able to reduce their tax burden by getting divorced. Quite naturally, therefore, opponents of the proposal assailed it as “a tax on morality.”

From: “Federal Income Taxation and the Family” (1975). Faculty Scholarship Series. Paper 2291.

The proposal was never enacted, and then the U.S. entered World War II and no further proposals were put forth.

Some common-law states began taking matters into their own hands. Oklahoma led the way, enacting community property provisions in 1939. Hawaii, Michigan, Nebraska, Oregon and Pennsylvania would follow Oklahoma’s lead.

(NOTE: these states have all repealed their community property laws and are now considered common-law states again.)

Proposals to enact community property law were also debated in Massachusetts and New York, but were not passed.

Finally in 1948, Congress acted. For the first time, filing statuses were created. More about that in Part 8.