                            T.C. Memo. 2009-166



                          UNITED STATES TAX COURT



                       CHARLES MERRILL, Petitioner v.
                COMMISSIONER OF INTERNAL REVENUE, Respondent

                      CHARLES E. MERRILL, Petitioner v.
                COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket Nos. 22608-07, 3058-08.      Filed July 13, 2009.



        Charles E. Merrill, pro se.

        Kathleen A. Tagni, for respondent.



                             MEMORANDUM OPINION


        KROUPA, Judge:    These cases are before the Court on

respondent’s motions for partial summary judgment under Rule

121.1       Respondent determined an $807,330 deficiency in


        1
      All section references are to the Internal Revenue Code in
effect for the years at issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure, unless otherwise
indicated.
                                 -2-

petitioner’s Federal income tax for 2004 and a $28,974 deficiency

for 2005.    Respondent also determined additions to tax for

failure to file a timely return under section 6651(a)(1), failure

to pay tax timely under section 6651(a)(2), and failure to pay

estimated tax under section 6654(a) for 2004 and 2005 (the years

at issue).    Petitioner concedes all respondent’s determinations

in the deficiency notices except the correct filing status of

petitioner.    We must decide whether petitioner, who was unmarried

but in a committed relationship with another man during the years

at issue, is entitled to married filing joint status.    We hold

that he is not.   Accordingly, we shall grant respondent’s motions

for partial summary judgment and, because petitioner has conceded

all other issues, we shall enter decisions for respondent.

                             Background

     The facts we recite are undisputed facts included in the

stipulation of facts and accompanying exhibits and matters

admitted in the pleadings or motions or presented in the parties’

oral arguments.

     Petitioner is a well-known gay rights activist and artist

and a millionaire.    He is the cousin of the founder of Merrill

Lynch and was married, for 23 years, to the late Evangeline

Johnson Merrill, an heiress to the Johnson & Johnson Company.

Petitioner began a relationship with Kevin Boyle shortly after

petitioner’s wife passed away.    He and Mr. Boyle have been

together for more than 18 years.    Petitioner and Mr. Boyle lived

in North Carolina during the years at issue.    They participated
                                -3-

in a commitment ceremony in 2004, but North Carolina did not

recognize same-sex marriages.   Petitioner and Mr. Boyle were

legally married in 2008 after moving to California.

     Petitioner failed to file a tax return for either of the

years at issue.   Respondent contacted petitioner about filing

income tax returns.   Petitioner responded with a letter stating

that he was not evading taxes, but refused to pay taxes as an act

of civil disobedience advocating same-sex marriage equality.

Respondent prepared substitutes for returns for the years at

issue and issued deficiency notices to petitioner.    In the

substitutes for returns, respondent determined petitioner’s

filing status to be single.

     Petitioner resided in North Carolina when he filed the first

petition regarding his return for 2004, and he resided in

California when he filed the second petition regarding his return

for 2005.   In both petitions, petitioner argued that he must be

accorded married filing joint status, rather than single status,

because of his long-term domestic partnership with Mr. Boyle.

     Respondent filed motions for partial summary judgment on

whether petitioner is entitled to married filing joint status for

the years at issue.   Respondent argues that petitioner is not

entitled to this status because he was not married in the years

at issue and he did not file a joint return for those years.     We

agree and discuss each of respondent’s arguments in turn.
                                 -4-

                              Discussion

     We must decide whether petitioner is entitled to married

filing joint status for the years at issue.      Petitioner was not

married during the years at issue.     He was not married under the

laws of the State of his domicile, North Carolina, nor in any

other State.    Moreover, petitioner did not file a return for the

years at issue and, therefore, is not entitled to married filing

joint status.

     We turn now to married filing joint status.      Every married

individual (as defined in section 7703) who makes a single return

jointly with his spouse under section 6013 is subject to married

filing joint return status.    Sec. 1(a)(1).    The determination of

whether an individual is married shall be made as of the close of

the taxable year.   Sec. 7703(a)(1).   Whether a taxpayer is

married for Federal income tax purposes is determined by

reference to the laws of the State of the taxpayer’s marital

domicile.   See Sullivan v. Commissioner, 256 F.2d 664 (4th Cir.

1958), affg. 29 T.C. 71 (1957); Dunn v. Commissioner, 70 T.C.

361, 366 (1978), affd. without published opinion 601 F.2d 599 (3d

Cir. 1979); Lee v. Commissioner, 64 T.C. 552, 556-559 (1975),
affd. 550 F.2d 1201 (9th Cir. 1977).       Petitioner admits he was

not legally married for either of the years at issue but argues,

nonetheless, that he should be allowed to file joint returns

because he was in a long-term committed relationship with his gay

partner and North Carolina did not recognize same-sex marriage.
                                  -5-

     Despite petitioner’s argument, a taxpayer must file a joint

return with his or her spouse and it must be signed by both

spouses to claim the married filing joint status.    See secs.

1(a)(1), 6013(a); sec. 1.6013-1(a)(2), Income Tax Regs.    This is

true even in the case of a delinquent return.    See Columbus v.

Commissioner, T.C. Memo. 1998-60, affd. without published opinion

162 F.3d 1172 (10th Cir. 1998).    We have held that where a

taxpayer did not file a return and a substitute for return was

prepared using single filing status, the taxpayer may claim

married filing joint status only by subsequently filing a return.

See Millsap v. Commissioner, 91 T.C. 926, 937 (1988).     Here,

petitioner never filed a return for the years at issue.

Accordingly, he is not eligible for married filing joint status

with respect to these years.

     Petitioner further argues that the Internal Revenue Code

discriminates against same-sex couples in a manner that violates

their constitutional rights by not allowing them to file joint

tax returns.2   We need not address his constitutional claims.3

     2
      Petitioner also challenges the constitutionality of the
Defense of Marriage Act (DOMA), Pub. L. 104-199, 110 Stat. 2419.
DOMA has no bearing on petitioner’s filing status, and its
constitutionality is irrelevant to our holding. See Mueller v.
Commissioner, 39 Fed. Appx. 437 (7th Cir. 2002), affg. T.C. Memo.
2001-274.
     3
      Similar constitutional challenges brought by same-sex
couples, married persons, and single persons have been
consistently denied. See Mueller v. Commissioner, 39 Fed. Appx.
437 (7th Cir. 2002) (same-sex couple), affg. T.C. Memo. 2001-274;
Druker v. Commissioner, 697 F.2d 46 (2d Cir. 1982) (married
persons), affg. in part and revg. in part 77 T.C. 867 (1981);
Demars v. Commissioner, 79 T.C. 247 (1982) (married persons);
                                                   (continued...)
                                 -6-



     We conclude that respondent properly determined single

filing status for petitioner.    Accordingly, we hold that

petitioner is not entitled to married filing joint status for the

years at issue.

     In reaching our holding, we have considered all arguments

made, and to the extent not mentioned, we consider them

irrelevant, moot, or without merit.

     To reflect the foregoing,



                                            Decisions will be entered

                                       under Rule 155.




     3
      (...continued)
Kellems v. Commissioner, 58 T.C. 556 (1972) (single person),
affd. 474 F.2d 1399 (2d Cir. 1973); Mueller v. Commissioner, T.C.
Memo. 2000-132 (same-sex couple), affd. without published opinion
87 AFTR 2d 2001-2052, 2001-1 USTC par. 50,391 (7th Cir. 2001);
Brady v. Commissioner, T.C. Memo. 1983-163 (single person), affd.
without published opinion 729 F.2d 1445 (3d Cir. 1984); see also
Mapes v. United States, 217 Ct. Cl. 115 (1978); Jansen v. United
States, 567 F.2d 828 (8th Cir. 1977); Barter v. United States,
550 F.2d 1239 (7th Cir. 1977); Johnson v. United States, 422 F.
Supp. 958, 967 (N.D. Ind. 1976), affd. sub nom. Barter v. United
States, 550 F.2d 1239 (7th Cir. 1977).
