Before 2010, the IRS treated Registered Domestic Partners (RDPs) who reside in community property states like Washington as single people. For tax year 2010, the IRS has changed its policy and now treats RDPs more like married couples. Attorney Elaine G. DuCharme wrote an article for the April 2011 King County Bar Bulletin called, “New IRS Rules for Registered Domestic Partners,” which points out the changes in the tax code and what they mean for RDPs. This is an overview of that article for people who are in a Washington RDP or are considering registering.
The Old Rule.
Before 2010, people who were in a Registered Domestic Partnership would each file a separate federal tax return, report only their income, and only be entitled to claim their credits and deductions. Basically, the IRS treated RDPs like single people. This was despite Washington’s Registered Domestic Partnership Act which extended community property rights to RDP’s as of June 11, 2008.
The New Rule.
The IRS has changed their rules for RDPs in Washington effective with the 2010 tax returns. People who are in an RDP still file individually, but now each person reports half of the combined income of the RDP and takes half of the combined total credits for income tax withholding. “Income” includes both wages and income from community-property assets. These rule changes also allow taxpayers to amend tax returns filed in 2008 and 2009, though they do not require amendment. If one taxpayer amends, the other must do so as well.
What is or isn’t community property is still being sorted out and is likely to change as the IRS refines their new rules. According to Ms. DuCharme’s article, withdrawals from IRAs and Coverdell Education Savings Accounts are treated as separate income, but withdrawals from pensions (including military retirement, civil service retirement and FERS retirement plans) could be treated as community property. Income from a community business is community income, but the self-employment taxes are only imposed on the partner who is carrying on the business. If the property was acquired before the couple was registered or before June 11, 2008 (whichever was later) it will be considered separate property unless it was clearly converted to community property via a quit claim deed or agreement.
Effect of New Rules.
There is bound to be a good deal of confusion about how these new rules affect you and your partner. If you are registered, should you stay registered? If you aren’t registered, should you take that step? What does the IRS consider to be separate property and what is community property? Should you and your partner enter into an agreement stating that property is or isn’t community property? Is the new rule going to save you and your partner money or end up with you paying more taxes? Do you and your partner need to amend your tax returns? If so, how far back do you need to go? These are all very good questions and should be answered by a tax professional and attorney who are fluent in the new IRS rules as well as the RDP Act.