SPRINGFIELD - Illinois couples in state-approved civil unions are running into a confusion when filing their federal returns. Because neither civil unions nor same sex marriages are acknowledged at the federal level, the Illinois Department of Revenue seems to "suggests" same-sex couples file "as-if-married" on federal returns.
The instructions get even more confusing because the Illinois civil union law does not require couples to denote whether they are same sex when filing for civil union licenses. However, the Illinois tax form and instructions explicitly refer to same-sex couples civil unions and denotes other, special instructions for opposite sex civil unions.
From 2012 Form IL- 1040, Page 1 - "D. Check if same-sex civil union return (see instructions)."
The Illinois Department of Revenue provides the following instructions for "same-sex" civil unions:
Under the Illinois Religious Freedom Protection and Civil Union Act, partners in a civil union must file joint Illinois Income Tax returns as married couples beginning in January. Because partners in a same-sex civil union cannot file joint federal returns, they will have to take special steps this year to file their Illinois returns. Those steps are outlined below.
Note: If you and your partner are treated as spouses for federal income tax purposes (such as an opposite-sex civil union), you should follow the instructions for married couples, without considering any of these special instructions for civil unions.
If you were in a same-sex civil union as of December 31, 2011, you must file Form IL-1040 using either the “married filing jointly” or “married filing separately” filing status. However, since a same-sex civil union couple may not file a federal return using a married filing status,
- if you and your same-sex partner choose to file a joint Illinois return, you must complete a federal “as-if-married-filing-jointly” return, for Illinois purposes only.
- if you and your same-sex partner choose to file separate Illinois returns, you must complete federal “as-if-married filing separately” returns, for Illinois purposes only.
Complete your federal “as-if-married” return(s), including all schedules and attachments, applying all the federal rules for the married filing status you choose (see a list of special situations below). Enter the federal “as-if-married” return information where Illinois requires federal information. Do not file your federal “as-if-married” return(s) with the Internal Revenue Service (IRS).
Special situations you may encounter while completing your federal “as-if-married” return:
Note: This list contains examples and is not an all-inclusive list. We will continue to update the list as situations arise.
- You must follow all of the federal instructions for the filing status you choose. Some federal adjustments and credits may be limited according to your filing status. For example, if you complete a federal “as-if-married-filing-jointly” return, you must compute your federal earned income credit using the income of both partners. If you elect to complete a federal “as-if-married-filing-separately” return, you cannot claim an earned income credit and federal deductions for student loan interest and higher education tuition.
- In order to complete your federal “as-if-married” return as if you and your partner were spouses under federal law, you may need to make some adjustments that are not covered by the federal instructions. For example, if your employer-provided health insurance covers your partner, the premiums you paid for your partner’s coverage would not be included in your taxable wages shown on your W-2 form if federal law treated you as spouses, but they will be included in your taxable wages if you are in a same-sex civil union. You should exclude the cost of these premiums from your taxable wages when completing your federal “as-if-married” return. Contact your employer to determine the amounts needed to make this adjustment. You must keep this information in your records and send it to us if we request it. Note: If excluding these premiums from your income causes you to have too much tax withheld by your employer, you may file a new Form IL-W-4, Employee’s Illinois Withholding Allowance Certificate and Instructions, with your employer claiming additional allowances in Step 2.
- If you have a net capital loss this year or a net capital loss carryover to this year and offset it against your partner’s capital gain on a recomputed joint return, you may not carry your capital loss over to any other year, even if you file separately in that year or file a joint return with a different spouse.
- If you have a federal net operating loss this year or a federal net operating loss carryback or carryover to this year and you use that loss to offset income of your partner on a recomputed joint return, you may not carry that loss to any other year, even if you file separately in that year or file a joint return with a different spouse.