New York Attorney General Eliot Spitzer, the leading candidate for the Democratic nomination for governor, issued an opinion in 2004 that while this state doesn’t perform same-sex marriages, it must recognize legal same-sex marriages performed elsewhere, such as Canada. But when asked about the legality of the state Department of Taxation and Finance statement this week that such same-sex couples may not file joint tax returns here, Spitzer’s spokesman, Brad Maione, refused comment.

Maione also refused to explain why Spitzer would not let his office defend the state Department of Civil Service in a current suit brought by Lambda Legal on behalf of a retired teacher’s effort on Long Island to get health insurance benefits for his same-sex spouse. The department had to hire its own lawyer. In the same-sex marriage cases going to the Court of Appeals on May 31, Spitzer has insisted that it is his obligation to defend the state’s position that only heterosexual couples can marry.

Spitzer’s campaign press office also neglected to return calls for comment by press time.

Lambda Legal asked the tax department in February 2005 for a formal opinion on whether legally married same-sex couples residing in New York must file jointly. Last year, a spokesperson for the department told Gay City News that gay marrieds may not file jointly. But the formal opinion was only issued this past week.

“The department’s decision is short-sighted,” said Alphonso David, Lambda’s lead attorney on the issue, especially since some of the couples seeking the clarification would pay more taxes if they filed as married.

The ruling said, “Since Petitioner’s marriage to his same-sex partner is not a marriage for federal income tax purposes, it is not a marriage for New York State personal income tax purposes.”

David responded that the tax department failed to take into consideration how major public officials in the state including the attorney general, Comptroller Alan Hevesi, and Mayor Michael Bloomberg have recognized these out-of-state same-sex marriages for purposes of pensions and other benefits.

“As a matter of law, we think the department is wrong,” David said. “We’re extremely disappointed.” Lambda is evaluating next legal steps, but the process will not be completed in time for this year’s tax deadline of April 17.

In Massachusetts, same-sex married couples must file as married with the state and must file separately on their federal forms. To figure their state tax, however, they must do a dummy federal return as if they were married because Massachusetts bases its taxes on a federal formula.

John Galanti, who married his partner John Hotchkiss in Canada and was represented by Lambda in this case, said, “We were willing to do our part for New York, but New York wasn’t willing to do its part for us.”

—Andy Humm