Joint Filing Allowed for Navajo Members in Common-Law Marriages

March 28, 2003

MEMORANDUM FOR
DEBRA J. CHANDLER
WAGE & INVESTMENT (SPEC) FIELD OPERATIONS

FROM:
Christie J. Jacobs
Director, Indian Tribal Governments

SUBJECT:
Navajo Common-Law Marriage and Income Tax Filing Status

This responds to your inquiry regarding the determination of the federal tax filing status of individuals who are married under the laws of the Navajo Nation. The question of the effect of tribal law on filing status appears to be one of first impression for the Internal Revenue Service. Accordingly, we requested technical assistance from the Office of Chief Counsel which has jurisdiction over the Internal Revenue Code (IRC) sections governing the determination of filing status. Our response has been prepared in accordance with their advice and is specifically limited to the facts related to the Navajo Nation.

We note that the conclusion presented here is also consistent with the manner in which the Social Security Administration interprets marital status under similar fact patterns.

Conclusion

A common-law marriage contracted by a Navajo tribal member that is valid under Navajo law may serve as a basis for joint federal filing purposes, whether the tribal member is currently domiciled on reservation land or Arizona state land outside of the reservation.

Background

The Navajo Nation is a federally recognized tribal government with reservation territory in three states: New Mexico, Arizona and Utah. Title 9 of the Navajo Nation Code governs the validity of marriage within the Navajo Nation. While the Navajo Nation recognizes common law marriage, at least one of the states within which the Navajo Nation rests does not (i.e. Arizona). Currently there is confusion regarding whether individuals who are considered married under the Navajo Code qualify to file as “married filing jointly”.

Discussion

Filing Status Generally

The Internal Revenue Code does not explain how to determine marital status for purposes of filing a joint return. Although §§6013 and 770 deal with filing status, neither provides rules for establishing marital status. The general rule, established judicially, for establishing eligibility to file a joint federal income tax return is that the marital status of the two individuals involved is determined under the laws of their state of residence or domicile. See Alfred L. Von Tersch, Jr. v. Commissioner, 47 T.C. 415, 419 (1967) (state of residence); Eccles v. Commissioner, 19 T.C. 1049, 1051 (1953), aff'd per curiam, 208 F.2d 796 (4^th Cir. 1953) (state of domicile); Calhoun v. Commissioner, T.C. Memo 1992-246, aff'd without published opinion, 993 F.2d 1533 (2d Cir. 1993) (state of domicile). The Service adopted this rule in Rev. Rul. 58-66, 1958-1 C.B. 60.

The reason for using state law governing the domicile to determine marital status is to avoid having one marital status under the law of the domicile and another marital status for federal tax purposes. “Were we to depart from the clearly demarcated path laid down for us by State laws and begin to construct “for-tax-purposes-only” marriages and divorces, we would shortly be faced with insoluble conundrums rooted in the reality that marital status is in fact a matter of State law.” Lee v. Commissioner, 64 T.C. 552, 558 (1975). aff'd, 550 F.2d 1201 (9^th Cir. 1977) “To provide a federal tax law of marriage would create greater confusion in divorce courts than now exists. Some individuals would be validly married for all purposes except federal taxes, and others validly married for federal tax purposes only.” Lee v. Commissioner, 550 F.2d 1201, 1202 (9^th Cir. 1977) aff'g 64 T.C. 552.

In some states, the law of the domicile for a tribal member living on the reservation is state law and in others it is tribal law. Many tribes have retained civil jurisdiction over the reservation. In United States v. Wheeler, 435 U.S. 313, 323 (1978), a case involving the Navajo Nation, the court stated that unless limited by federal treaty or federal statute, a tribe has the power to regulate domestic relations among tribe members. Public Law No. 280, 67 Stat. 588, enacted in 1953 and codified in scattered sections in Titles 18, 25, and 28 of the United States Code, is the federal statute governing tribes' retention of civil jurisdiction over their reservations. Pub. L. No. 280 provides that, except in certain circumstances, the tribes have civil jurisdiction over reservation land, and cannot be divested of jurisdiction absent the consent of a majority of the tribal members. Many states have not taken over civil jurisdiction, including jurisdiction over domestic relations, of reservations located in the state. See Begay v. Superior Court, 172 Ariz. Adv. Rep. 31 (Ariz. App. 1994) (holding that Arizona law regarding marriages does not apply to a tribal member domiciled on the reservation.)

Navajo Nation Code Title 9, §1 et seq., (enacted on April 28, 1993) establishes the requirements that Navajos must meet in order to maintain a valid common-law marriage under Navajo law. See Begay v. Superior Court, 172 Ariz. Adv. Rep. 31 (1994). The filing status of a taxpayer depends on the domicile of the taxpayer and the law under which the marriage was contracted. A jurisdiction determines the validity of a marriage contracted by a current domicile in the jurisdiction on the basis of its own laws. In addition, all state courts generally recognize marriages validly contracted in other jurisdictions. Restatement, Second, Conflicts of Laws §283(2) (1971). This includes common-law marriages in most cases.

The following provides some examples relating to common-law marriages under Arizona and Navajo law:

Common-law Marriage Contracted Pursuant to Navajo Law During Navajo Reservation Domicile

Navajo Nation law governs the marital status of a tribal member domiciled on the Navajo reservation. Arizona state courts have conceded that the state has not assumed civil jurisdiction over the reservation under Pub. L. No. 280 and that state law does not govern Indian domestic relations. Begay v. Superior Court, 172 Ariz. Adv. Rep. 31 (1994). Common-law marriages are valid under Navajo law. 9 NNC §1 et seq. Accordingly, a Navajo tribal member contracting a common-law marriage pursuant to Navajo law that is valid under Navajo law while domiciled on the reservation located within the state of Arizona may file a joint federal income tax return because the marriage is valid under Navajo law.

Common-law Marriage Contracted Pursuant to Navajo Law Prior To Current Arizona Domicile

Arizona recognizes the validity of out of state common-law marriage contracted prior to acquiring domicile in Arizona if the marriage is valid where contracted. Atkinson Valley National Bank, 526 P. 2d 1252, 1255-56 (Ariz. App. 1974) (holding a Texas common-law marriage contracted prior to domicile in Arizona is valid in Arizona). Mission Ins. Co. v. Industrial Commission of Arizona, 559 P. 2d 1085 (Ariz. App. 1976) (holding a Kansas common-law marriage contracted prior to domicile in Arizona is valid in Arizona). A Navajo common-law marriage contracted by a tribal member domiciled on the reservation is valid where contracted if it complies with Navajo law. Begay v. Superior Court, 172 Ariz. Adv. Rep. 31 (1994) (explaining that Arizona law with respect to domestic relations does not apply on the reservation because Arizona never assumed civil jurisdiction over the reservation pursuant to Public Law 280). A Navajo tribal member who contracts a Navajo common-law marriage while domiciled on the reservation that is valid under Navajo law and who subsequently adopts an Arizona domicile may file a joint federal income tax return because a Navajo common-law marriage contracted under these circumstances is valid under Arizona state law.

Common-law Marriage Contracted Pursuant to Navajo Law During Current Arizona Domicile

Arizona law governs because the individuals are currently domiciled in Arizona. Arizona recognizes the validity of out-of-state common-law marriages, even if contracted during the parties domicile in Arizona, if the marriage is valid where contracted. The fact that the parties may have been domiciled in Arizona does not preclude them from establishing that a valid common-law marriage was contracted in another jurisdiction. Vandever v. Industrial Commission of Arizona, 714 P.2d 866, 870 (Ariz. App. 1985) (explaining that a couple can contract a common-law marriage in Colorado while domiciled in Arizona if the marriage is valid under the laws of Colorado, absent extreme public policy considerations such as those set forth in Ariz. Rev. Stat. §25-101.) “The only marriages validly contracted in another jurisdiction that are denied recognition in Arizona are those involving the marriages within a certain degree of consanguinity.” Id, at 869. See Ariz. Rev. Stat. Ann. §25-112(A), (B) & (C); Ariz. Rev. Stat Ann. §25-101(A), (B) & (C). Applying Vandever to the current case, a Navajo tribal member who contracts a Navajo common-law marriage that is valid under Navajo law while domiciled in Arizona may file a joint federal income tax return because under these circumstances the Navajo common-law marriage is valid under Arizona state law.

Finally, it should also be noted that no proof of marriage is required at the time of filing a return. However, should a return be selected for an audit in which filing status must be verified, the taxpayers might be required to present a valid marriage certificate. Navajo Nation Code Title 9 §5 provides that the Navajo Office of Vital Records will provide a certificate verifying the existence of a common-law Navajo marriage.

Should you have any questions concerning this memorandum, please contact Christie Jacobs at (202) 283-9736.