Gender-Neutral Text in Tax Laws

I was recently on a panel on Gender and Taxes at the Sustainability & ESG in Taxation conference in London (I was virtual from San Jose!). One of several topics we covered included me noting that the US tax law is not written in gender neutral language. It has always surprised me that there are so many uses of the terms "he" and "his". For example, the deduction for medical expense under §213 is for "the taxpayer, his spouse or a dependent." That implies that taxpayers are male. It should be changed to just taxpayer and dependent since for a married couple, both spouses are taxpayers.

Another odd one is at §446(a) on accounting methods which apply to all taxpayers but time spent with this provision will be for businesses. Yet the general rule provides: "Taxable income shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books."  A fix would be to change "his" to "their."

In recent years there have been bills to address gender equity in the tax law which is an excellent idea. For example, H.R. 3833 (117th Congress), Equal Dignity for Married Taxpayers Act, calls for numerous changes throughout the IRC such as replacing "husband and wife" with "married couple."  It lists out over 50 specific provisions and describes the needed change. 

Expanding this bill to also make the Code gender neutral would be outstanding (and expanding the name of the bill). In addition, the bill should require Treasury and IRS to make regulations gender neutral and specify that if that is the only change to the regulation, there is no need for public comment. The bill can include a list of the needed changes, such as change "his" to "their."

What do you think?

More Overlooked but Needed Tax Reforms

Continuing with my list of reforms I think would help our tax system (see prior lists of 8/29/21 and 6/21/21), here are three more.

1. Consolidating education provisions further. Need to better identify purpose of these provisions and if their “cost” is appropriate and in line with direct spending such as Pell grants.

2. If higher education incentives are retained, be sure they also cover post-secondary trade schools and only for reasonable costs.

3. Make the IRC gender neutral – “his” is often used in the Code, sometimes even to describe a business (such as at §446(a)). Also, references to husband and wife should be changed to spouses.

Examples:

• §213 – Medical, dental, etc., expenses. (a) Allowance of deduction. There shall be allowed as a deduction the expenses paid during the taxable year, not compensated for by insurance or otherwise, for medical care of the taxpayer, his spouse, or a dependent (as defined in section 152, determined without regard to subsections (b)(1), (b)(2), and (d)(1)(B) thereof), to the extent that such expenses exceed 7.5 percent of adjusted gross income.
• §446(a) – General Rule. Taxable income shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books.
• §7701(a)(17) defines “husband and wife”.
• §121(d)(1) – “If a husband and wife made a joint return for the taxable year of the sale or exchange of the property, ….”

While Rev. Rul. 2013-17 suggests a gender-neutral reading of the Internal Revenue Code, changes have not been made throughout.[1] This ruling was obsoleted by TD 9785 (9/8/16), adding Reg. 301.7701-18 defining spouse, husband and wife, husband, wife and marriage. No changes are made to the Code or other regulations to make them gender neutral.

H.R. 3833, Equal Dignity for Married Taxpayers Act of 2021, proposed to make numerous changes to the IRC to, for example replace “himself” with “self” and “husband and wife” with “married couple.” It would also repeal §7701(a)(17) that defines “husband and wife” and modify §7701(a)(38) that defines “joint return” to say it is by a “married couple” rather than a “husband and wife.”

There should also be a requirement to update regulations.

#letsfixthis

What do you think?

---

[1] For example, Rev. Rul. 2013-17 states: “consistent with the statutory context, the Supreme Court’s decision in Windsor, Revenue Ruling 58-66, and effective tax administration generally, the Service concludes that, for Federal tax purposes, the terms “husband and wife,” “husband,” and “wife” include an individual married to a person of the same sex if they were lawfully married in a state whose laws authorize the marriage of two individuals of the same sex, and the term “marriage” includes such marriages of individuals of the same sex.”