Do same-sex couples legally married in the U.S. have the right to file their federal taxes jointly? Ralph Denney, senior advocate and general manager of DMC-The Tax Insider in San Diego, says yes.

Denney disagreed with an article written by the Associated Press in January, in which the Gay & Lesbian Advocates and Defenders (GLAD) discouraged same-sex couples who are married in Massachusetts from filing joint tax returns.

In the article, IRS spokesperson William Cressman said the IRS would follow the Defense of Marriage Act (DOMA) and offered no guidance regarding same-sex couples. If the IRS found same-sex couples filing as “married” on their federal tax returns, Cressman said the status would be changed to “single” and the filers would be notified.

GLAD is advising same-sex couples who married in Massachusetts to file federal returns as if they are single, but to note either through an attached letter or on the return itself that they were legally married in Massachusetts.

Denney does not think GLAD’s suggestion will make any difference. “That’s just trying to make people feel a little better about what they’re doing,” he said. “You have to understand, unless a return is selected for a manual audit, no one ever reads those things.”

According to Denney, the Internal Revenue Code (IRC)’s only requirement for filing joint federal tax returns is that the couple be married according to the laws of their resident state, which is why a man and a woman with a common-law marriage in Texas, for example, can file a joint federal return, but the same couple cannot do so in California, where common-law marriages are not recognized.

Denney believes the IRC is then unethical. “By both statute and court decision, our Federal Tax Code is and must be amoral. “That is, the IRC is not allowed to make moral judgments or apply moral standards in the course of applying the tax code and in its collection of lawful taxes,” he said.

Denney further explained he believes the IRC would take priority over any law or statute including DOMA. “In my opinion, if they are legally married in that state, then they are legally allowed to file a federal married return and DOMA does not affect it.”

Larry Conway, a San Diego-based attorney and CPA, disagrees with Denney’s contentions.

“The Internal Revenue Code is merely a part of the U.S. Code, which is the collection, so to speak, of all statutes passed by Congress. It is statute, always trumped by the Constitution, and because the Defense of Marriage Act is part of the U.S. Code as well, [IRC] is on equal footing with DOMA,” Conway said.

Although Conway hopes DOMA will ultimately be declared unconstitutional, he said that process could take several years, and DOMA would govern behavior by the federal government with respect to all federal laws, including the IRC. “Unfortunately, DOMA provides that whenever a federal law requires a determination of marital status, marriage shall be determined as only between a man and a woman. As reprehensible as that is, it currently is the law,” he said.

Conway also referenced a written response the IRS commissioner made in reaction to a request for comment from the Public Advocate, a conservative advocacy group, in June of 2004.

“Because of this statute [DOMA], only married individuals under this definition could elect to file a joint tax return. Even though a state may recognize a union of two people of the same sex as a legal marriage for the purposes within that state’s authority, that recognition has no effect for purposes of federal law. A taxpayer in such a relationship may not claim the status of a married person on the federal income tax return,” wrote the commissioner.

Denney also argued a couple legally married in Canada but living in the U.S. could be able to file their taxes jointly because foreign tax treaties would take precedence whenever they are in conflict with federal statutes. He stressed he is still in the process of researching this and will continue to do so when the tax season is over, but believes it has some validity.

“There are Supreme Court cases out there, which state that international treaties for which the Senate has ratified take precedence over federal law including the Constitution,” he said.

Conway believes DOMA would still stand in the way. “Until the courts take up the question of determining whether DOMA is in conflict with a treaty – if they ever do – DOMA is still the law of the land.”