One is the loneliest number: The single taxpayer in a joint return world

Hastings Law Journal

Volumn 61, Issue 3, 2010, Pages 651-686

  Kahng, Lily ^a  

^a SEATTLE UNIVERSITY   (United States)

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EID: 77950846660     PISSN: 00178322     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (324)

1. See Sam Roberts, 51 % of Women Are Now Living Without Spouse, N.Y. TIMES, Jan. 16, 2007, at Al (quoting William H. Frey, a demographer with the Brooking Institution).
2. The story of how we came to adopt the joint return is well known, though it never ceases to engage and entertain tax students and scholars. See generally Boris I. Bittker, Federal Income Taxation and the Family, 27 STAN. L. REV. 1389, 1399-1414 (1975);
3. Carolyn C Jones, Split Income and Separate Spheres: Tax Law and Gender Roles in the 1940s, 6 LAW A HIST. REV. 259 (1988);
4. see also Lily Kahng, Fiction in Tax, in TAXING AMERICA 25,26-32 (Karen B. Brown & Mary Louise Fellows eds., 1996).
5. -282 U.S. 101 (1930).
6. -4.281 U.S. 111 (1930)
7. -282 U.S. at 118.
8. Id. at 117-118
9. -281 U.S. at 114-115
10. Id.
11. See Kahng, supra note 2, at 27-28.
12. See Revenue Act of 1948, Pub. L. No.471, §§301-305, 62 Stat. 110, 114 (codified as amended in scattered sections of 26 U.S.C).
13. For detailed accounts of the politics and legislative activity following the 1948 adoption of the joint return, see generally Toni Robinson & Mary Moers Wenig, Marry in Haste, Repent at Tax Time: Marital Status as a Tax Determinant, 8 VA. TAX REV. 773, 776-87 (1989);
14. Lawrence Zelenak, Doing Something About Marriage Penalties: A Guide for the Perplexed, 54 TAX L. REV. I, 33-39 (2000);
15. and Dennis J. Ventry, Jr., The Politics and Economics of Gender Norms and Competing Family Forms Under the U.S. Federal Income Tax, 1969-2006, at 1-70 (unpublished manuscript, on file with the Hastings Law Journal).
16. See Robinson & Wenig, supra note 11,at 781.
17. Revenue Act of 1951, Pub. L. No.183, §301, 65 Stat. 452, 480 (codified at 26 U.S.C §1(b) (2006)).
18. See Robinson & Wenig, supra note 11, at 783. The singles penalty is sometimes characterized as a marriage bonus, from the perspective of a married couple who pays less in tax than a single person with the same amount of income. The use of the terms "singles penalty," "marriage bonus," and "marriage penalty" can be confusing and imprecise. The Article attempts to clarify below.
19. See infra Parts I.B, I.C.
20. Tax Reform Act of 1969, Pub. L. No.91-172, 83 Stat. 487 (codified as amended in scattered sections of 26 U.S.C).
21. See Bittker, supra note 2, at 1429-1431
22. The relative mix of penalties and bonuses has varied over the years, but in recent years there has been a marked reduction in the marriage penalties, through a widening of the bracket amounts for married couples. See MAXIM SHVEDOV, CRS REPORT FOR CONGRESS: STATUTORY INDIVIDUAL INCOME TAX RATES AND OTHER ELEMENTS OF THE TAX SYSTEM: 1988 THROUGH 2008, at 6-7 (2008), available at http://assets.opencrs.com/rpts/RL34498-20080521.pdf.
23. See Edward J. McCaffery, Where's the Sex in Fiscal Sociology? Taxation and Gender in Comparative Perspective 6-7 (Univ. S. Cal. Law Sch. Law & Econ. Working Paper Series, Paper No. 70, 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1020360.
24. CONG, OF THE U.S., CONG. BUDGET OFFICE, FOR BETTER OR FOR WORSE: MARRIAGE AND THE FEDERAL INCOME TAX 59 (1997) [hereinafter CBO, FOR BETTER OR WORSE], available at http://www.cbo.gov/ftpdocs/oxx/doc7/marriage.pdf (indicating that in 1993, nineteen out of twentyseven OECD countries taxed husbands and wives separately);
25. ORG. FOR ECON. COOPERATION A DEV., FUNDAMENTAL REFORM OF THE PERSONAL INCOME TAX 54-56 (2006);
26. Joseph A. Pechman & Gary V. Englehardt, The Income Tax Treatment of the Family: An International Perspective, 43 NAT'L TAX J. I, 7-10 (1990) (identifying a "world-wide trend" toward individual filing and away from joint filing). Many countries appear to have moved to individual filing to capture the labor efficiency gains of taxing married women at lower marginal rates.
27. See McCaffery, supra note 18, at 6-7. Efficiency is often a popular and forceful rationale for changing tax laws in the United States (witness recent rounds of tax cuts on high incomes and capital gains and dividends).
28. See William G. Gale et al., Distribution of the 2001 and 2003 Tax Cuts and Their Financing, 103 TAX NOTES 1539, 1542-44 (2004). Given the well-documented inefficiencies engendered by the joint return, our continued embrace of it is surprising.
29. In general, marriage bonuses sometimes occur where one member of the couple earns a relatively large proportion of the couple's combined income.
30. See infra notes 32-35 and accompanying text.
31. In general, marriage penalties sometimes occur where the earnings of each member of the couple are roughly equal. See infra notes 32-35 and accompanying text.
32. See, e.g., JANE GRAVELLE, CONG. RESEARCH SERV., FEDERAL INCOME TAX TREATMENT OF THE FAMILY 18-22 (2009).
33. See, e.g., James Alm et al., Is There a "Singles Tax"? The Relative Income Tax Treatment of Single Households, PUB. BUDGETING A FIN., Summer 2002, at 69 (explaining that the "singles tax" is the higher tax imposed on an uncoupled single person relative to an equal-income married couple).
34. Unmarried couple bonuses and penalties are mirror images of marriage penalties and bonuses. The following discussion describes various estimates of marriage penalties and bonuses, except that the figures are recast as unmarried couple bonuses and penalties.
35. GREGG A. ESENWEIN, CONG. RESEARCH SERV., THE FEDERAL INCOME TAX AND THE TREATMENT OF MARRIED COUPLES: BACKGROUND AND ANALYSIS 9 (2001), available at http://stuff.mit.edu/afs/sipb.mit.edu/contrib/wikileaks-crs/wikileaks-crs- reports/RL30800.pdf
36. Id. These estimates of net bonus or penalty require the calculation of married couples' tax liabilities assuming they are not married. This, in turn, requires assumptions about how income and deductions would be allocated between the two individuals, the filing status they would choose, and how they would report any children they have.
37. Id. at 7-9.
38. Id. at 9-10 (footnote omitted).
39. The Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA) enacted three marriage tax penalty relief provisions: (1) it increased the standard deduction for joint returns to twice the size of the standard deduction for single returns, (2) it increased the width of the fifteen percent tax bracket for joint returns to twice the width of the fifteen percent tax bracket for single returns, and (3) it increased the earned income tax credit phaseout start and end points for joint returns by $3000.
40. See Pub. L. No.107-16,115 Stat. 38 (2001) (codified in scattered sections of 26 U.S.C). The changes were phased in over several years, and are slated to expire at the end of 2010.
41. See id.
42. GREGG A. ESENWEIN, CONG. RESEARCH SERV., MARRIAGE TAX PENALTY RELIEF PROVISIONS OF THE ECONOMIC GROWTH AND TAX RELIEF RECONCILIATION ACT OF 2001, at 5 (2003), available at http://stuff.mit.edu/afs/sipb/contrib/wilkileaks-crs/ wikileaks-crs-reports/RS21000.pdf;
43. see also GRAVELLE, supra note 22, at 23.
44. See ESENWEIN, supra note 25, at 9.
45. Robert Gillette et al., Marriage Penalties and Bonuses: A Longer Term 468-478 (unpublished manuscript, presented at the Proceeding of the National Tax Association) (Dec. 2004).
46. ESENWEIN, supra note 25, at 12.
47. Id. at 10.
48. Id.
49. Id. at 12.
50. See Alm et al., supra note 23.
51. See id. at 76. In computing the single person's penalties, Alm and his coauthors use one personal exemption and the standard deduction for the single person's tax liability, and two personal exemptions and the standard deduction for the married couple's tax liability.
52. See id. at 73.
53. See id. at 81.
54. Alm and his coauthors estimated 52,000,000 single taxpayers in 1996. Id. In 2006, there were almost 62,000,000.
55. See IRS, STATISTIC OF INCOME-INDIVIDUAL INCOME TAX RETURNS PUBLICATION 1304 tbl.2.4 (2009), available at http://www.irs.gov/pub/irs-soi/07in24ms.xls.
56. The Economic Growth and Tax Relief Reconciliation Act of 2001 created a new ten percent rate, with the bracket amount for joint filers equal to two times that for single filers.
57. See SHVEDOV, supra note 17, at 6. It also increased the width of the fifteen percent bracket for joint filers to twice that for single filers.
58. Id. at 6-7. Finally, it increased the standard deduction for joint filers to twice that for single filers.
59. Id. at 7. All of these changes were intended to decrease the married couple's penalty, and also had the effect of increasing the single person's penalty. Using assumptions similar to those of Aim and his coauthors, one commentator estimates the single person's penalty for 2007 to be as high as $9900.
60. See James Larson, Taxes- Marriage Tax Penalty/Single's Tax Penalty (2007), http://www.green5.org/MarriageTaxPenalty.xls
61. This is true as a mathematical matter, given the rate structure. Married couples have wider tax brackets than single people and so, given equal amounts of income, the tax liability of the married couple will be lower. Unmarried couples at worst will have the same tax liability as a single person with the same income, assuming all the income is attributed to one member of the couple (even then, the unmarried couple will probably have a lower tax liability by reason of an extra dependent exemption). If, on the other hand, the two members of the unmarried couple each contribute a portion of their total income, they will benefit from separate progressions through the lower tax brackets.
62. To close the loop on these comparisons, an unmarried couple can pay less than a single person if both members of the couple contribute to the couple's combined income because the income of each member of the couple will have a separate progression through the tax brackets. A single person will never pay less than the unmarried couple.
63. See, e.g., GRAVELLE, supra note 22, at 5 ("[The adoption of the joint return] bad little to do with any theory regarding the tax treatment of the family.");
64. id. at 11 (describing the joint return as "haphazard");
65. HAROLD MARTIN GROVES, FEDERAL TAX TREATMENT OF THE FAMILY 17 (1963) (describing the joint return as the product of historical developments rather than design; effects not carefully weighed nor consciously intended);
66. Bittker, supra note 2, at 1416 (stating that the joint return was adopted without considering effects on marriage neutrality);
67. Oliver Oldman & Ralph Temple, Comparative Analysa of the Taxation of Married Persons, 12 STAN. L. REV. 585, 593 (1960) (positing that the joint return was probably the product of political expediency rather than conscious policy decision);
68. Lawrence Zelenak, Marriage and the Income Tax, 67 S. CAL. L. REV. 339, 347 (1994) (noting that the 1948 legislation was essentially a historical accident).
69. See Stanley S. Surrey, Federal Taxation of the Family - The Revenue Act of 1948, 61 HARV. L. REV. 1097, 1162 (1948).
70. See Bittker, supra note 2, at 1419-20. As Lawrence Zelenak points out, Bittker was not the first to explain the marriage tax dilemma in this way.
71. See Zelenak, supra note 11, at 6 n.26. Professor Zelenak cites a 1972 statement as the earliest of which he is aware.
72. Id. (citing Tax Treatment of Single Persons and Married Persons Where Both Spouses Are Working, Hearings Before the H. Ways and Means Comm., 92d Cong. 78-79 (1972) (statement of Edwin S. Cohen, Assistant Treasury Sec'y)). Nonetheless, Bittker's article was extremely influential, and he is the one who has become most closely identified with what I call the "Bittker framework."
73. See, e.g., PAUL MCDANTEL et al., FEDERAL INCOME TAXATION CASES AND MATERIALS 971 (5th ed. 2004);
74. MICHAEL J. GRAETZ et al., FEDERAL INCOME TAXATION PRINCIPLES AND POUCIES 468 (6th ed. 2008);
75. JANE G. GRAVELLE, THE MARRIAGE TAX PENALTY 53 (2003);
76. see also Alm et al., supra note 23, at 85-86;
77. CBO, FOR BETTER OR WORSE, supra note 19, at 2-6.
78. As scholars have pointed out, the whole enterprise of horizontal equity is disturbingly circular. Not only must one assume that the married couple is the appropriate unit of comparison, one must also assume that income is the appropriate metric by which to determine whether two units are equally situated. It seems that all the difficult judgments must be made in advance of actually applying the horizontal equity criterion.
79. See Thomas D. Griffith, Should "Tax Norms" Be Abandoned? Rethinking Tax Policy Analysu and the Taxation of Personal Injury Awards, 1993 Wis. L. REV. 1115, 1155-56;
80. Louis Kaplow, Horizontal Equity: Measures in Search of a Principle, 42 NAT'L TAX J. 139 (1989) (critiquing horizontal equity as devoid of normative value).
81. But see Richard A. Musgrave, Horizontal Equity Once More, 43 NAT'L TAX J. 113 (1990) (defending horizontal equity).
82. See Poe v. Seaborn, 282 U.S. 101, 110-111 (1930)
83. See Pamela B. Gann, Abandoning Marital Status as a Factor in Allocating the Income Tax Burden, 59 TEX. L. REV. 1, 24-27 (1980);
84. Marjorie E. Kornhauser, Love, Money, and the IRS: Family, Income-Sharing, and the Joint Income Tax Return, 45 HASTINGS L.J. 63,80-92 (1993).
85. But see Zelenak, supra note 43, at 348-355 (challenging the claim that many married couples do not share consumption, and concluding that most spouses do share equally in consumption).
86. See Kornhauser, supra note 49, at 103.
87. See Patricia A. Cain, Taxing Families Fairly, 48 SANTA CLARA L. REV. 805, 851-53 (2008) [hereinafter Cain, Taxing Families]:
88. Patricia A. Cain, Imagine There's No Marriage, 16 QUTNNIPIAC L. REV. 27, 54-60 (1996);
89. Shari Motro, A New "I Do": Towards a Marriage-Neutral Income Tax, 92 IOWA L. REV. 1509,1540-44 (2006).
90. See generally Nancy D. Staudt, Taxing Housework, 84 GEO. L.J. 1571 (1996).
91. See Edward J. McCaffery, Taxation and the Family: A Fresh Look at Behavioral Gender Biases in the Code, 40 UCLA L. REV. 983, 1005-1010 (1993).
92. I use the descriptors "single" or "uncoupled" to mean people who are not in a committed romantic relationship; this is a different group from those who are "unmarried," as this latter group includes both single people and coupled people who are not married.
93. See, e.g., Gann, supra note 49, at 32-52;
94. Nancy J. Knauer, Heteronormativity and Federal Tax Policy, 101 W. VA. L. REV. 129, 154-57 (1998);
95. Kornhauser, supra note 49, at 108-11;
96. Harvey S. Rosen, Is It Time to Abandon Joint Filing?, 30 NAT'L TAX J. 423, 427 (1977);
97. Zelenak, supra note 43, at 378.
98. See generally Marjorie E. Kornhauser, Wedded to the Joint Return: Culture and the Persistence of the Marital Unit in the American Income Tax (June 2009) (unpublished manuscript, on file with the Hastings Law Journal);
99. Zelenak, supra note n;
100. CBO, FOR BETTER OR WORSE, supra note 19.
101. See, e.g., Cain, Taxing Families, supra note 51, at 851-52 (advocating spousal treatment for same sex couples);
102. Motro, supra note 51, at 1544-50 (advocating joint filing for couples, relatives, or friends, provided they share legal entitlement to all taxable income);
103. Wendy Richards, An Analysu of Recent Tax Reforms from a Marital Bias Perspective: It Is Time to Oust Marriage from the Tax Code, 2008 WIS. L. REV. 611, 652-53 (advocating new filing status for dual-earner married couples);
104. Zelenak, supra note 11.
105. U.S. Census Bureau, Press Release, Facts for Features: Unmarried and Single Americans Week (July 21, 2009), available at http:// www.census.gov/ Press-Release/www/releases/pdf/cbo9ff-18-unmarried09.pdf
106. Id. Of this group, sixty-one percent had never been married, twenty-four percent were divorced, and fifteen percent were widowed.
107. Id.
108. See Roberts, supra note 1.
109. U.S. CENSUS BUREAU, 2005-2007 AMERICAN COMMUNITY SURVEY, TABLE S1201: MARTTAL STATUS (2008), available at ftp://www2.census.gov/acs/downloads/shells/ 2007/subjects/S1201.xls.
110. This figure has crept up a bit and is now at fifty-two percent of adult women and forty-eight percent of adult men. U.S. CENSUS BUREAU, 2006-2008 AMERICAN COMMUNITY SURVEY, TABLE S1201: MARITAL STATUS, available at http://www.census.gov/acs/www/Downloads/users-guide/2006-2008/shells/subject/ S1201.xls.
111. For example, in 1950, sixty-five percent of women lived with a spouse; today forty-nine percent do so.
112. See Roberts, supra note 1. On average, Americans spend half their adult lives outside marriage.
113. See id. (quoting Stephanie Coontz, Director of Public Education for the Council on Contemporary Families). The trend is driven by a number of factors: young adults are delaying marriage longer, more marriages are ending in divorce in a shorter period of time, and more women who divorce or are widowed are remaining unmarried longer and living longer.
114. See id.;
115. see also U.S. CENSUS BUREAU, THE POPULATION PROFILE OF THE UNITED STATES: DYNAMIC VERSION, FAMILY AND LIVING ARRANGEMENTS IN 2005, available at http://www.census.gov/population/www/pop-profile/files/dynamic/FamiliesLA.pdf.
116. See Roberts, supra note 1 (quoting William H. Frey, a demographer with the Brooking Institution).
117. See id.
118. Unmarried America, An Information Service for the New Unmarried Majority, http://www.unmarriedamerica.org/ (last visited Jan. 12, 2010).
119. Alternatives to Marriage Project, http://www.unmarried.org/ (last visited Jan. 12, 2010).
120. PR News Online, Singular Magazine Debuts to Celebrate the Single Lifestyle (June 18, 2008), http://www.prnewsonline.com/prnewswire/2753.html
121. Single Edition, About Us, http://www.singleedition.com/about- singleeditioncom/our-story/about-us.html (last visited Jan. 12, 2010).
122. "Quirkyalone n/adj. A person who enjoys being single (but is not opposed to being in a relationship) and generally prefers to be alone rather than date for the sake of being in a couple." SASHA CAGEN, QUIRKYALONE: A MANIFESTO FOR UNCOMPROMISING ROMANTICS 5 (2004);
123. see also Quirkyalone: It's a Mindset, http://quirkyalone.net/index.php/ about-2/quirkyalone/ (last visited Jan. 12, 2010).
124. "Singlism" is a term coined by Bella DePaulo and Wendy Morris to describe the negative stereotyping of single people.
125. See BELLA DEPAULO, SINGLED OUT: HOW SINGLES ARE STEREOTYPED, STIGMATIZED, AND IGNORED, AND STILL LIVE HAPPILY EVER AFTER 2 (2006).
126. See, e.g., Singlerude: A Positive Blog for Singles, http://singletude. blogspot.com/ (last visited Jan. 12, 2010);
127. Therapeutic Conversations for Singles, http://www.crystalmonae.blogspot. com/ (last visited Jan. 12, 2010).
128. See infra notes 113-119 and accompanying text.
129. Gail Collins, Op-Ed., One Singular Sensation, N.Y. TIMES, NOV. 4, 2008, at A43, available at http://www.nytimes.com/2008/12/04/opinion/04iht-edcollins. 1.18403897.html (quoting Governor Rendell).
130. Id.
131. See, e.g., id.;
132. Connie Schultz, She Doesn't Have a Life? He Doesn't Have a Clue, PLAIN DEALER (Qeveland), Dec. 7, 2008, at G4.
133. But see Jill Porter, Can't Blame Ed for Tellin' It Like It Is, PHILA. DAILY NEWS, Dec. 5, 2008, at 5.
134. E.g., Angela Couloumbis & Mario F. Cattabiani, Rendell Plays Down Remarks - He Said Homeland Security Secretary-Designate Had "No Family" and "No Life", PHILA. INQUIRER, Dec. 4, 2008, at B1.
135. See, e.g., Amey Stone, The High Cost of Not Marrying, BUSINESSWEEK ONUNE, Feb. 25,2004, http://www.businessweek.com/bwdaily/dnflash/feb2004/nf20040225- 6278-db035.htm.
136. See, e.g., Thomas F. Coleman, The High Cost of Being Single in America or the Financial Consequences of Marital Status Discrimination (Aug. 7, 2004), http://www.unmarriedamerica.org/cost-discrimination.hmt;
137. Leslie Talbot, Stop Singlism!, FORBES MAG., Aug. 21, 2007, http://www.forbes.com/2007/08/21/talbot-singles-discrimination-forbeslife- singleso07-cxlt-0821talbot.html. Commentators also report that in response to the changing demographic landscape, some employers have begun to offer benefits to an expanded universe of "family members," including unmarried domestic partners (same or opposite sex), grown children, or extended family members.
138. See, e.g., Michelle Conlin, Unmarried America, BUSINESSWEEK, Oct. 20, 2003, at 109. The redefinition of family is another demographic shift that sometimes aligns, but sometimes conflicts, with the agenda of singles advocacy and awareness groups. Constituents of the "redefined family" group and the "singles" group are aligned in their opposition to the traditional married couple (preferably with children) as the sole privileged social arrangement, but they diverge in their preferred alternative. This Article focuses primarily on single people versus coupled people (most of whom are married).
139. See Leslie Talbot, Opinion: Unmarried in the Military? Still a Long Way to Go (June 10, 2008), http://www.unmarried.org/unmarried-in-the-military.html.
140. See Jim Garamone, Review Panel Recommends Military Pay Changes, U.S. DEP'T OF DEF. ARMED FORCES PRESS SERV., Mar. 13, 2008.
141. See Coleman, supra note 78;
142. see also Philip J. Harmelink & Janet Furman Speyrer, Social Security: Rates of Returns and the Fairness of Benefits, 14 CATO J. 37, 51 (1994) (concluding that of four inequities in the social security system - marital status, gender, age, and income - marital status is the most important, with rates of return for one-earner couples "up to 40 percent higher than for two-earner couples and up to 85 percent higher than for single males").
143. See Alternatives to Marriage Project, Federal Income Taxes, http://www.unmarried.org/federal-income-taxes.html (last visited Jan. 12, 2010).
144. Id.
145. Unmarried America, Support Our Human Rights Program for Unmarried America, http://www.unmarriedamerica.org/humanrightsagenda.html (last visited Jan. 12, 2010).
146. See Jeff Schnepper, How the Tax Code Makes Singles Suffer, MSN MONEY, June 22, 2004, http://moneycentral.msn.com/content/Taxes/P82377.asp.
147. Id. (example based on tax rates in effect for 2004).
148. For example, consumer discounts are offered to married people for auto and renters' insurance, health club and country club memberships, and automobile clubs.
149. See Stone, supra note 77.
150. See John B. Kirkwood & Robert H. Lande, The Fundamental Goal of Antitrust: Protecting Consumers, Not Increasing Efficiency, 84 NOTRE DAME L. REV. 191, 228-29 (2008);
151. William F. Baxter & Daniel P. Kessler, Toward a Consbtent Theory of the Welfare Analysu of Agreements, 47 STAN. L. REV. 615, 623-25 (1995).
152. The basic intuition is that, by charging different prices to different consumers, instead of a single price to all consumers, a seller will be able to sell more units, thereby increasing profits.
153. See Daniel A. Farber & Brett H. McDonnell, Why (and How) Fairness Matters at the IP/Antitrust Interface, 87 MINN. L. REV. 1817, 1865-70 (2003).
154. See generally Herbert Hovenkamp, Market Power and Secondary-Line Differential Pricing, 71 GEO. L.J. 1157, 1157-1177 (1983) (describing conditions under which differential pricing violates antitrust laws, and other conditions in which it does not).
155. For a detailed analysis of the desirability and legality of group purchasing organizations,
156. see Jonathan M. Jacobsen & Gary J. Dorman, Joint Purchasing, Monopsony and Antitrust, 36 ANTITRUST BULL, 1 (1991).
157. See, e.g.. National Singles Association, http://www.r-u-single.com/ content.aspx?page-id=o&club-id=276423 (last visited Jan. 12, 2010). The National Singles Association is an organization that appears to be modeled on the American Association of Retired People, which, in exchange for a membership fee, offers discounts on travel; hotels; restaurants-, electronics; legal, accounting, and financial services; books; music; and entertainment.
158. See id.
159. Of course, the specific claims about the tax treatment of single people under the joint return will be thoroughly evaluated.
160. See infra Part IV.
161. See generally Joni Hersh & Leslie S. Stratton, Household Specialization and the Male Marriage Wage Premium, 54 INDUS, A LAB. REL. REV. 78 (2000);
162. Lawrence W. Kenny, The Accumulation of Human Capital During Marriage by Males, 21 ECON. INQUIRY 223 (1983);
163. Sanders Korenman & David Neumark, Does Marriage Really Make Men More Productive?, 26 J. HUM. RESOURCES 282 (1991);
164. Eng Seng Loh, Productivity Differences and the Marriage Wage Premium for White Males, 31 J. HUM. RESOURCES 566 (1996).
165. See Jeffrey S. Gray, The Fall in Men's Return to Marriage: Declining Productivity Effects or Changing Selection?, 32 J. HUM. RESOURCES 481,481-482 (1997).
166. See Leslie S. Stratton, Examining the Wage Differential for Married and Cohabiting Men, 40 ECON. INQUIRY 199, 199 (2002).
167. See Gary S. Becker, A Theory of the Marriage, Part I, 81 J. POL. ECON. 813, 813-15 (1973);
168. Gary S. Becker, Human Capital, Effort, and the Sexual Division of Labor, 3 J. LAB. ECON. S33, S34-36 (1985).
169. See GARY S. BECKER, A TREATISE ON THE FAMILY 66-77 (1981);
170. Christopher Corawell & Peter Rupert, Unobservable Individual Effects, Marriage, and the Earnings of Young Men, 35 ECON. INQUIRY 285, 285-86(1997).
171. See Martha S. Hill, The Wage Effects of Marital Status and Children, 14 J. HUM. RESOURCES 579, 592 (1979).
172. Dennis J. Aigner & Glen G. Cain, Statistical Theories of Discrimination in Labor Markets, 30 INDUS, A LAB. REL. REV. 175, 177 (1977).
173. Abbigail J. Chiodo & Michael T. Owyang, For Love or Money: Why Married Men Make More, REGIONAL ECONOMIST, Apr. 2002, at 10,10.
174. See Michael Zimmer, Employer Discrimination and the Earnings Premium of Married Men: Evidence From Quantile Regressions, 32 J. ECON. 1 (2006).
175. See Chiodo & Owyang, supra note 100, 10.
176. Kate Antonovics & Robert Town, Are All the Good Men Married? Uncovering the Sources of the Marital Wage Premium, 94 AM. ECON. REV. 317, 317-319 (2004).
177. Id. at 317-320
178. Id. at 320.
179. Id. ("Thus, the answer to the question posed in the title of our paper, appears to be 'no.' Not all the good men are married.").
180. See Zimmer, supra note 101;
181. Esfandiar Maasoumi et al., Who Benefits from Marriage?, 71 OXFORD BULL. ECON. A STAT, 1, 29-30 (2009) (finding also that the marital wage premium is minimal or nonexistent for higher wage jobs).
182. See Maasoumi et al., supra note 107, at 29.
183. There is far less research on marital wage effects for women, and the findings are more ambiguous. Some researchers have found evidence of premium. See, e.g., David Neumark & Sanders Korenman, Source of Bias in Women's Wage Equations: Results Using Sibling Data, 29 J. HUM. RESOURCES 379 (1994). Others have found a marital wage penalty - that married women are paid less than single women.
184. See, e.g., Hill, supra note 98, at 588.
185. Still others have found no discernible premium or penalty. See, e.g., Samuel Giffin & Quinton White, Why Not Women Too? An Analysu of the Effects of Women's Marital Status and Other Related Factors on Wages, ISSUES POL. ECON., Aug. 2008.
186. no. See Deborah J. Anderson et al., The Motherhood Wage Penalty Revisited: Experience, Heterogeneity, Work Effort, and Work-Schedule Flexibility, 56 INDUS, & LAB. REL. REV. 273 (2003);
187. Michelle J. Budig & Paula England, The Wage Penalty for Motherhood, 66 AM. SOC. REV. 204 (2001);
188. Hill, supra note 98, at 588.
189. See Hill, supra note 98, at 579-581
190. See Robert K. Toutkoushian et al., The Interaction Effects of Gender, Race, and Marital Status on Faculty Salaries, 78 J. HIGHER EDUC. 572, 597 (2007) (noting the complex interaction of personal and other characteristics that contribute to pay inequities, and the need for more research).
191. See generally Bella M. DePaulo & Wendy L. Morris, Singles in Society and in Science, 16 PSYCHOL. INQUIRY 57 (2005) (examining the nature of, and possible explanations for, negative stereotypes about single people).
192. But see James M. Puckett, Rethinking Tax Priorities: Marriage Neutrality, Children, and Contemporary Families, 78 U. QN. L. REV. (forthcoming 2010) (arguing for elimination of the joint return, while providing support for parents and children).
193. See Joachim Krueger et al., Perceiving Middle-Aged Adults: Effecu of Stereotype-Congruent and Incongruent Information, 50 J. GERONTOLOGY 82,92-93 (1995).
194. See Wendy L. Morris et al.. Perceptions of People Who Are Single: A Developmental Life Tasks Model, in THE PSYCHOLOGY OF MODERN PREJUDICE 165, 182 (Melanie A. Morrison & Todd G. Morrison eds., 2008). They are also described as more sociable, fun, and independent than married people. See id.
195. See Alan A. Davis & Philip M. Strong, Working Without a Net The Bachelor as a Social Problem, 25 Soc. REV. 109 (1977);
196. Tobias Greitemeyer, Stereotypes of Singles: Are Singles What We Think?, 39 EUROPEAN J. Soc. PSYCHOL. 368, 369 (2008);
197. Morris et al., supra note 115, at 11.
198. Terri D. Conley & Barry E. Collins, Gender, Relationship Status and Stereotyping About Sexual Rbk, 28 PERSONALITY A SOC. PSYCHOL. BULL. 1483 (2002).
199. See Anne Byrne, Singular Identities: Managing Stigma, Resuting Voices, 7 WOMEN'S STUD. REV. 13, 90-93 (2000);
200. Krueger et al., supra note 114, at 15-22.
201. Tanya Koropeckyj-Cox, Commentary, Singles, Society, and Science: Sociological Perspectives, 16 PSYCHOL. INQUIRY 91, 95 (2005).
202. See ALICE H. EAGLY A SHELLY CHAKEN, THE PSYCHOLOGY OF ATTTTUDES 155-183 (1993). Most of the research on negative attitudes towards single people uses quasi-experiments ta which subjects are asked their attitudes about fictional individuals whose characteristics are manipulated.
203. Anne Byrne & Deborah Carr, Commentary, Caught in the Cultural Lag: The Stigma of Singlehood, 16 PSYCHOL. INQUIRY 84, 85-86 (2005).
204. Currently, there is only one experiment attempting to Unk negative attitudes about single people directly to behavior. See Wendy L. Morris et al., No Shelter For Singles: The Perceived Legitimacy of Ducrimination, 10 GROUP PROCESSES A INTERGROUP REL. 457, 460 (2007) (finding that subjects asked to act as landlords explicitly favored married couples over singles in selecting tenants).
205. See ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY 3 (1963).
206. See generally id.; THE SOCIAL PSYCHOLOGY OF STIGMA (Todd F. Heatherton et al. eds., 2003).
207. See Byrne & Carr, supra note 120, at 86-89;
208. Byrne, supra note 118, at 13-24.
209. See Kipling D. WiUiams & Steve A. Nida, Commentary, Obliviously Ostracizing Singles, 16 PSYCHOL. INQUIRY 127, 127-130 (2005).
210. See, e.g., Byrne & Carr, supra note 120, at 87-88;
211. DePaulo and Morris, supra note 113, at 72-78;
212. Koropeckyj-Cox, supra note 119, at 96.
213. See DePaulo & Morris, supra note 113, at 58, 77.
214. DePaulo & Morris go so far to call it the "cult of the couple." Id. at 75.
215. See Deborah Carr, Well-Being of Single Women, in WOMEN ON THEIR OWN 58, 62 (Rudolph M. BeU & Virginia Yans eds., 2008);
216. ANTHONY GIDDENS, THE TRANSFORMATION OF INTIMACY: SEXUALITY, LOVE, AND EROTICISM IN MODERN SOCIETIES I 111-157 (1992).
217. See Byrne & Carr, supra note 120, at 88 ("[T]he privilege afforded to married persons is the most pervasive and least contested of all privileges because nearly all persons have first-hand experience with the nuclear family. Profamily attitudes are not only internalized by children and young adults but also are reified on a daily basis through language and practice.");
218. Anne Byrne, Single Women in Ireland, in WOMEN ON THEIR OWN, supra note 127, at 16, 17 [hereinafter Byrne, Single Women in Ireland];
219. see also Pierre Bourdieu, On Family as a Realized Category, 13 THEORY, CULTURE A Soc. 19, 19-24 (1996);
220. Trevor Purvis & Alan Hunt, Discourse, Ideology, Discourse, Ideology, Dbcourse, Ideology, 44 BRTT. J. Soc. 473 (1993).
221. See Christian S. Crandall & Ruth H. Warner, Commentary, How a Prejudice b Recognized, 16 PSYCHOL. INQUIRY 137, 138 (2005) ("The kind of prejudice toward singles... is so smoothly integrated into the everyday ideology of Americans that most people will not notice their evaluations, their beliefs, their assumptions, and their preferences.");
222. Williams & Nida, supra note 124, at 128 (analogizing the unconscious disregard of single people's interests to institutional discrimination).
223. See Carr, supra note 127, at 58-59; DePaulo &
224. Morris, supra note 113, at 65-71.
225. See, e.g., Margaret S. Clark & Steven M. Graham, Do Relationship Researchers Neglect Singles? Can We Do Better?, 16 PSYCHOL. INQUIRY 131, 135 (2005);
226. Kenneth L. Dion, Marital Status as Stimulus Variable and Subject Variable, 16 PSYCHOL. INQUIRY 104, 110 (2005).
227. BYRNE, Single Women in Ireland, supra note 128, at 19.
228. Single men do not exactly have it easy, either. They are stereotyped as "horny, slovenly, and irresponsible," or "fastidious, frivolous and gay." DEPAULO, supra note 70, at 150.
229. BYRNE, Single Women in Ireland, supra note 128, at 19;
230. see Jill Reynolds & Margaret WethereU, The Discursive Climate of Singleness: The Consequences for Women's Negotiation of a Single Identity, 13 FEMINISM A PSYCHOL. 489,489-510 (2003) (interview study of thirty British women using discursive psychology to develop a feminist perspective on singleness).
231. BYRNE, Single Women in Ireland, supra note 128, at 34-35.
232. Id. at 37.
233. Rachel F. Moran, How Second-Wave Feminism Forgot the Single Woman, 33 HOFSTRA L. REV. 223, 282 (2004) [hereinafter Moran, Single Woman];
234. see also Angela P. Harris, Loving Before and After the Law, 76 FORDHAM L. REV. 2821, 2842-44 (2008);
235. Rachel F. Moran, Loving and the Legacy of Unintended Consequences, 2007 WIS. L. REV. 239, 274-276
236. -137- Moran, Single Woman, supra note 136, at 284.
237. E. KAY TRIMBERGER, THE NEW SINGLE WOMAN 65-83 (2008).
238. Id. at 116-117 (footnote omitted).
239. Grace Blumberg, Sexism in the Code: A Comparative Study of Income Taxation of Working Wives and Mothers, 21 BUFF. L. REV. 49, 95 (1971).
240. One might view the adverse effects on women ta the workplace as a transitional issue that will become less problematic as more women become primary earners, or we move away from the primary/secondary model generally. See Francine D. Blau & Lawrence M. Kahn, Changes in the Labor Supply Behavior of Married Women: 1980-2000, 25 J. LAB. ECON. 393, 395-411 (2007) (finding, for both decades, a new, steady, and dramatic reduction in women's own wage labor supply elasticity, and a continuing decline in their cross-wage elasticity). In this way, it is arguably a less serious problem than the demographic shift toward singlehood, which there is no reason to think will be impermanent.
241. See supra notes 65, 66, 84.
242. See, e.g., Conlin, supra note 78;
243. DEPAULO, supra note 70;
244. Shari Motro, Op-Ed., Single and Paying for It, N.Y. TIMES, Jan. 25, 2004, §4, at 15.
245. See Ventry, supra note 11, at 8;
246. see also, Zelenak, supra note 11, at 37-39.
247. -145- See, e.g., Koropeckyj-Cox, supra note 119, at 93-95.
248. For example. The Alternatives to Marriage Project, whose explicit goal is to "advocate for the equal rights of unmarried people," invites just about everyone to participate in their efforts: "The Alternatives to Marriage Project is open to everyone, including singles, couples, married people, people in relationships with more than two people, and people of all genders and sexual orientations. We welcome our married supporters, who are among the many friends, relatives, and allies of unmarried people." About The Alternatives to Marriage Project, http://www.unmarried.OTg/about-us.html (last visited Jan. 12, 2010).
249. Another organization. Unmarried America, bills itself on its home page as "a service organization for the unmarried majority," and lists the following categories of constituents: solo, roommate, partner, parent, family, never married, separated, divorced, widowed, straight, gay, bi, asexual, democrat, republican, independent, employee, consumer, and voter. See Unmarried America, http://www.unmarriedamerica.org (last visited Jan. 12, 2010).
250. See Elisabeth Eaves, Does the World Really Need a Magazine for Single People?, FORBES.COM HTTP://FORBES.COM, Dec 12, 2008, http//www.forbes.com/2008/ 12/11/single-magazme-marketing-oped-cx-ee-i2i2eaves.html ("[T]here is something wrong with the whole concept [of a magazine for single people]....I know people who would smack me if I gave it to them....This is not because there's something embarrassing about being single. It's just that singleness doesn't imply a set of shared interests, so it seems like a strange thing to cling to as an identity group.").
251. Two recent studies by economists, discussed ta detail and critiqued below, do address the treatment of single people. See infra notes 154-169 and accompanying text.
252. See supra notes 29-32 and accompanying text.
253. See supra note 41 and accompanying text.
254. See Bittker, supra note 2, at 1422-25;
255. Gann, supra note 49, at 28-31.
256. -152. Supra note 151.
257. See MARVIN A. CHIRELSTEIN, FEDERAL INCOME TAXATION: A LAW STUDENT'S GUIDE TO LEADING CASES AND CONCEPTS 258 (Found. Press 2005) (1977).
258. -154- See Alm et al., supra note 23, at 74-75. They also adjust their basic computations to take account of differentials in poverty transfers at the low-income end of the spectrum. Because twoperson households receive a greater amount of these transfers than one-person households, all things being equal, this has the effect of increasing the single person's penalty.
259. See id. at 74, 77-78.
260. See id. at 79-80.
261. Jane Gravelle & Jennifer Gravelle, Horizontal Equity and Family Tax Treatment: The Orphan Child of Tax Policy, 59 NAT'L TAX J. 631 , 631-649 (2006) [hereinafter Gravelle & Gravelle, Horizontal Equity].
262. See generally Gravelle, supra note 22 (incorporating the methodology and the findings of Gravelle and Gravelle).
263. See Gravelle & Gravelle, Horizontal Equity, supra note 156, at 634-635 & tbl.IB (showing reference income levels for single people at sixty-two percent of those for a married couple).
264. See id. at 636 tbl.IC (showing effective tax rates for, among others, childless married couples and childless single people);
265. see also Gravelle, supra note 22, at 17 ("[T]hese calculations suggest (1) that singles are taxed more beavlly than childless couples in the middle income ranges but less heavily at very high and very low income levels....").
266. -159- But see Gann, supra note 49, at 25.
267. See HENRY SIMONS, PERSONAL INCOME TAXATION 140 (1938).
268. Simons has been described as "perhaps the leading American tax theorist of the 20th century." Lawrence Zelenak, Children and the Income Tax, 49 TAX L. REV. 349, 359 (1994). The theory of children as consumption has received more attention than that of marriage as consumption, and is more easlly put aside, no doubt because of the universally acknowledged social value of children.
269. See generally id.;
270. Donald B. Tobin, Investing in Our Children: A Not So Radical Proposal, 73 U. QN. L. REV. 457 (2004).
271. See Bittker, supra note 2, at 1421 ("[T]he legal, emotional, and social burdens on marital income are self-imposed, since they result from the voluntary decision of the parties to get married....[A] tax on income should take no more account of a marriage vow than of the taxpayer's propensity to spend his or her income on vacations, hobbies or riotous living.");
272. Gravelle, supra note 22, at 11 ("[T]he choice of a spouse could be seen as a consumption or investment choice, which should not alter the tax paid by the individual, or the combined tax of the two spouses. In this case, the individual should be the tax unit."). Another theoretical basis for taxing individuals separately, regardless of marital status, is the exchange model of marriage, which theorizes that individuals enter into marriage to engage in a mutuaUy beneficial exchange of economic and noneconomic resources and services. On this theory of marriage, the joint return - with its implicit income splitting - has the effect of taxing the noneaming spouse for the services he performs in exchange for his share of his spouse's income, and allowing the earning a spouse to deduct her payments to her spouse for these services, a result that is both arbitrary and inequitable.
273. See generally Note, The Case for Mandatory Separate Filing by Married Persons, 91 YALE LJ. 363 (1981).
274. See Gravelle & Gravelle, Horizontal Equity, supra note 156, at 632.
275. See id.
276. Alm et al., supra note, 23, at 74.
277. By this, I mean the single person's penalty is unsupportable on pure tax-policy grounds under the consumption theory of marriage. There might be other social policy reasons to provide a preference for married households, as even Henry Simons acknowledged.
278. See SIMONS, supra note 160, at 140;
279. Bittker, supra note 2, at 1421.
280. See supra notes 93-112 and accompanying text.
281. See supra notes 87-91 and accompanying text.
282. See supra notes 113-131 and accompanying text.
283. A Pigouvian tax is imposed to regulate behavior by forcing one who creates external harms to "internalize" the cost of those harms. See ARTHUR CECIL PIGOU, THE ECONOMICS OF WELFARE 131-37 (3d ed. 1929). Pigouvian taxes are often discussed as a means of regulating environmental polluters.
284. See, e.g., WILLIAM J. BAUMOL & WALLACE E. OATES, THE THEORY OF ENVIRONMENTAL POUCY 21-47 (Cambridge Univ. Press 1988) (1975). Taxes on cigarettes and fast food are also sometimes justified as Pigouvian taxes that aim to align private interests with the social costs of such behaviors.
285. See, e.g., W. Kip Viscusi, The Governmental Composition of the Insurance Costs of Smoking, 42 J.L. A ECON. 575, 581-84 (1999) (cigarette taxes);
286. Jeff Strnad, Conceptualizing the "Fat" Tax: The Role of Food Taxes in Developed Countries, 78 S. CAL. L. REV. 1221, 1240-45 (2005) (taxes on junk food). The literature on poUution taxes, cigarette tax, and junk food taxes illustrates the practical difficulties of identifying and quantifying the social harms related to polluttag, smoking, and overeating.
287. See, e.g., Douglas A. Kysar, Law, Environment, and Vision, 97 Nw. U. L. REV. 675, 705 (2003) ("[E]cological economists believe that such Pigouvian taxes are insufficient by themselves to regulate society's environmental impact, primarily because the informational demands of such taxes outstrip scientific knowledge of ecosystem dynamics and ethical agreement on proper valuation methods for environmental goods and services."); Strnad, supra, at 1325 ("[S]cientific uncertainty and complexity may be a major obstacle to designing food taxes that make sense...."). Similarly, in this context, calibrating the taxation of single and nonsingle people to take account of economic, sociological, and psychological harms imposed on single people by others would be extremely difficult to accomplish.
288. See supra note 45 and accompanying text.
289. See supra notes 24-35 and accompanying text.
290. McCaffery, supra note 53, at 986.
291. See supra notes 11-19 and accompanying text.
292. The social costs to couples include the effect of taxes on decisions about whether and when to marry, and decisions about whether and how much to work, particularly as to secondary earners. See supra notes 45-53 and accompanying text; see Also James Aim et al.. The Marriage Penalty, 13 J. ECON. PERSPECTIVES 193, 199-201. The social costs to single people include the effect of taxes on decisions whether to marry, and the perpetuation of negative attitudes and stereotypes Alsout single people.
293. See supra notes 159-169 and accompanying text.
294. See Bittker, supra note 2, at 1395
295. See id. at 1396
296. See Kornhauser, supra note 56.
297. Between 1970 and 2005, the annual number of marriages per 1000 women declined nearly fifty percent. See NAT'L MARRIAGE PROJECT, THE STATE OF OUR UNIONS 2007, at 16 (2007), http://www.virgtaia.edu/marriageproject/pdfs/ SOOU2007.pdf. The percentage of adults who are currently married has declined significantly, from sixty-nine percent to fifty-six percent for men, and from sixtysix percent to fifty-three percent for women.
298. See id. at 18. Meanwhile, the rate of unmarried cohabiting couples grew nearly tenfold between 1960 and 1998, divorce rates more than quadrupled between 1970 and 1996, and between 1965 and 2002, the number of births outside of marriage rose from twelve percent to thirty-three percent.
299. See Chicagoland Marriage Resource Center, Marriage Statistics (2008), http://www.chicagolandmarriage.org/marriage-statistics.htm.
300. Griffith, supra note 47, at 1155-1156 (footnote omitted)
301. -(quoting STANLEY S. SURREY et al., FEDERAL INCOME TAXATION: CASES AND MATERIALS 46 (1986)).
302. Anthony C Infanti, Tax Equity, 55 BUFF. L. REV. 1191, 1259 (2008).
303. Id. at 1209.
304. See, e.g., Blumberg, supra note 140;
305. Dorothy Brown, Race and Class Matters in Tax Policy, 107 COLUM. L. REV. 790 (2007);
306. Wendy Gerzog,The Marital Deduction QTIP Provuions: Illogical and Degrading to Women, 5 UCLA WOMEN'S L.J. 301 (1995);
307. Mary Louise Fellows, Wills & Trusu: "The Kingdom of the Fathers," 10 LAW A INEQ. J. 137 (1991) (gender and the gift and estate tax);
308. Kahng, supra note 2; Infanti, supra note 180;
309. McCaffery, supra note 53;
310. Leo P. Martinez & Jennifer M. Martinez, The Internal Revenue Code and Latino ReaUties: A Critical Perspective (Mar. 30, 2009) (unpublished manuscript, on file with the Hastings Law Journal).
311. Zelenak, supra note 11, at 38;
312. see also Ventry, supra note n, at 8 (describing the individuals and groups who lobbied for the 1969 tax reduction for single people as an "odd bunch").
313. See generally Stephanie Hunter McMahon, To Have and to Hold: Rethinking Marital Property and Federal Tax Filing (Feb. 16, 2009) (unpublished manuscript, on file with the Hastings Law Journal) (discussing income shifting and other administrative problems under a separate return regime, and arguing that these concerns played a central role in the decision to adopt the joint return).
314. For a discussion of the mechanics of implementing mandatory separate filing, see Gann, supra note 49, at 52-65;
315. Zelenak, supra note 43, at 381-401;
316. and Note, supra note 161. But see McMahon, supra note 184 (arguing for retention of joint return in part due to administrative concerns with separate filing).
317. See generally Robinson & Wenig, supra note 11.
318. For example, owner-occupied residential housing preferences, including the home mortgage deduction, 26 U.S.C. § 163(h) (2006), and the exclusion from gain upon sale, id.§ 121, provide double the amount of tax benefits to married couples. The gift and estate marital deduction completely exempts transfers between spouses from tax.
319. See generally Bridget Crawford, One Flesh, Two Taxpayers: A New Approach to Marriage and Wealth Transfer Taxes, 6 FLA. TAX REV. 757 (2004) (proposing elimination of the marital deduction).
320. See Harris, supra note 136, at 2846 (observing that marriage is equated with citizenship through certain types of market participation, in family relations, in civil society, and in politics).
321. See generally MICHAEL WARNER, THE TROUBLE WITH NORMAL: SEX, POLITICS, AND THE ETHICS OF QUEER LIFE (1999);
322. Marc Sptadelman, Homosexuality's Horizon, 54 EMORY L.J. 1361 (2005).
323. See generally Angela Onwuachi-Willig, The Return of the Ring: Welfare Reform's Marriage Cure as the Revival of Post-Bellum Control, 93 CAL. L. REV. 1647 (2005).
324. See generally NANCY POUKOFF, BEYOND (STRAIGHT AND GAY) MARRIAGE: VALUING ALL FAMILIES UNDER THE LAW (2007).