08-09-07 A-3904-06T1
The transitional issue presented in this appeal is whether
the Division of Taxation ("the Division") is compelled by Lewis
v. Harris, 188 N.J. 415 (2006), and the subsequent enactment of
New Jersey's civil union act, L. 2006, c. 103 ("the Civil Union
Act"), to permit a same-sex couple, married in another
jurisdiction before that statute's February 19, 2007 effective
date, to file a joint New Jersey gross income tax return for
income they earned in calendar year 2006.
Appellants, who are New Jersey residents, were united in a
same-sex marriage in Canada in 2003. Guided by the Attorney
General's Formal Opinion No. 3-2007 (regarding New Jersey's
recognition of same-sex unions from other jurisdictions), the
Acting Director of the Division denied appellants' request to
file a joint New Jersey tax return for their 2006 earnings.
Although appellants are entitled to declaratory relief
concerning future tax years, we hold that the Division is not
required to treat appellants' 2006 income as joint income. We
are satisfied that the Division may utilize a reasonable
transition period to conform its forms and procedures to the
constitutional and statutory principles espoused in Lewis v.
Harris, supra, and in the Civil Union Act. We also note that
the Acting Director's determination comports with established
administrative practices of looking to the familial status of
wage earners, for taxation purposes, during the calendar year
that their income was earned.
Judge Stern has filed a concurring opinion. The
concurrence expresses reservations about denying appellants, as
partners in a legally-recognized civil union, the right to file
a joint tax return after February 19, 2007, but defers to the
Supreme Court's remedial prerogatives.
