The Marriage Penalty

Policy Backgrounders | Taxes

No. 145
Monday, February 09, 1998
by Bruce Bartlett

History of the Marriage Penalty

Table III - Common Law Marriage Penalty%2C 1947

Although the marriage penalty is inherent in progressive tax rates, its magnitude has gone up and down with changes in the tax law. When the income tax was established in 1913, no distinction was made between married and unmarried taxpayers. A single rate schedule applied to both.

The tax problems related to working women were far fewer in those days because only a small number of married women worked outside the home. Even single women were unlikely to hold a paying job at that time.4

  • In the census of 1900, only 769,000 married women were in the labor force, which totaled 27,640,000 workers.
  • The female labor force participation rate was just 20 percent in 1900, compared to 86 percent for men.

Community Property. In the 1920s, a number of couples in community property states began filing separate tax returns, with each spouse claiming half the couple's total income.5 This was justified on the grounds that under community property each spouse is deemed to own half the couple's joint earnings, regardless of who earned them. By contrast, in common law states, the earnings of a spouse generally belonged to that spouse. Among the states with community property laws at that time were Texas, Arizona, Idaho, Louisiana, Nevada, New Mexico, Washington and California.

"In the 1940s, some couples in common law states were paying 40 percent more in federal taxes than they would have paid in a community property state."

Initially, the Attorney General of the United States ruled that couples in community property states could split their income for tax purposes. This had the effect of reducing taxes for most couples. For example, if a husband had $20,000 of earnings and his wife had none, they would be taxed as if each earned $10,000. This generally put them in a lower tax bracket and lowered their joint tax liability. Had this practice been allowed to continue, it would have led states to adopt community property laws just to give their citizens a cut in their federal income taxes.

Table IV - Distribution of the Benefits of Income Splitting%2C 1948

Congress and the Treasury Department attempted to thwart income splitting through legislation and regulations. Eventually, a case reached the Supreme Court. In Poe v. Seaborn (1930), the Court ruled that state community property laws did allow couples to split their incomes for federal income tax purposes. As expected, this led several states to change from common law to community property to give their citizens a tax cut at no expense to the state. The trend accelerated when tax rates shot up during World War II. By 1948 Oregon, Nebraska, Michigan and Oklahoma had changed their laws to become community property states.6

Obviously, this situation led to a great deal of unfairness, with residents of some states paying significantly lower federal income taxes than comparable earners residing in other states. Table III indicates the magnitude of the marriage penalty for couples in common law states in 1947. As the table shows, some couples in common law states were paying 40 percent more in federal income taxes than they would have paid in a community property state. For example:

  • A couple with a joint income of $25,000 would have paid $9,082 in federal income taxes in a common law state.
  • The same couple would have paid only $6,460 in a community property state.

As Professor Michael Graetz of Yale recently noted, "This absurd situation did not engender great respect for the integrity of the income tax."7

"When income splitting was extended to all married couples in 1948, it constituted a significant tax cut for most of them."

Income Splitting. Congress finally resolved this problem in the Revenue Act of 1948, which extended the principle of income splitting to all married couples.8 This constituted a significant tax cut for most married couples.9 As Table IV shows, the bulk of the benefits accrued to couples with middle incomes.

Figure II - Marginal Tax Rates for Married Couples%2C 1947 and 1948

More significantly, almost every married couple saw a sharp reduction in their marginal tax rate - the tax that applies to the last dollar earned. A couple earning $51,000, for example, saw their marginal rate drop from 75 percent to 59 percent between 1947 and 1948. Figure II illustrates the impact. Again, those in the middle brackets, not the rich, were the principal beneficiaries.

"A couple earning $51,000, for example, saw their marginal tax rate drop from 75 percent to 59 percent."

In practice, the impact of lower tax rates was mainly on women. Since a married woman's earnings came on top of her husband's, she was in effect taxed at her husband's marginal tax rate on the first dollar of her earnings. Marginal tax rates as high as 90 percent after World War II strongly discouraged married women from working.

Although income splitting was highly beneficial to most married couples, it created a problem for single taxpayers. As a result of income splitting, a married couple now paid significantly less tax than a single earner with the same income. Congress tried to address this inequity in 1951 by creating a new tax rate schedule for single heads of households, which roughly split the difference between the married and single tax schedules.


Figure III - Marginal Tax Rate Schedule for Single Taxpayers%2C 1970 and 1971

Birth of the Marriage Penalty. However, singles continued to agitate for tax relief. By 1969 some single taxpayers were paying 42 percent more federal taxes than a married couple with the same income. That year Congress created a new tax schedule that was designed to keep the tax burden on singles and married couples with the same income within 20 percent of each other. Figure III shows the tax rate reductions for single taxpayers that were effective in 1971. This legislation created a significant marriage penalty for the first time.10 As a result, some married couples now paid more taxes by filing jointly than they would have paid if both filed as individuals.11

"The 1981 tax bill did not eliminate the marriage penalty, but did provide substantial relief."

Further contributing to the rise of the marriage penalty was the steep increase in the number of women in the labor force. As Figure IV shows, the number of women in the labor force grew by about 50 percent between the late 1940s and the early 1970s. The labor force participation rate for women has continued to rise since and in 1997 was almost double the rate of 1947. This is important because a marriage penalty occurs only when a husband and wife both earn income. As women began working in greater and greater numbers, the likelihood of a couple suffering a marriage penalty rose.


Figure IV - Labor Force Participation Rate

As awareness of the marriage penalty grew, increasing numbers of couples began to take matters into their own hands by getting divorced for tax reasons. One couple, David and Angela Boyter, received national publicity for getting divorced each December, allowing each to file as single for the year, then remarrying in January.12 Eventually the IRS cracked down on this charade, but not before moving Congress to action.13 By 1981, there was strong political pressure to redress the marriage penalty problem, and a variety of proposals were put forward.14

Recent Tax Changes. In the Economic Recovery Tax Act of 1981, Congress attempted to redress the marriage penalty by giving the lower-paid spouse a 10 percent tax deduction on income up to $30,000, for a maximum deduction of $3,000. While this provision did not eliminate the marriage penalty, it did provide substantial relief for most married taxpayers, as shown in Table V.

However, the secondary-earner deduction did not live long and was eliminated by the Tax Reform Act of 1986. But because the Tax Reform Act sharply reduced rates for most taxpayers, the net effect was to reduce the number of couples suffering a marriage penalty and the magnitude of the penalty.15 Nevertheless, some couples were worse off, as shown in Table VI.

Table V - Marriage Penalties and Bonuses Before and After the Economic Recovery Tax Act of 1981

"Expansion of the Earned Income Tax Credit in 1993 exacerbated the marriage penalty."

The most recent tax legislation with a major impact on the marriage penalty was the 1993 tax bill.16 Interestingly, the provision of this legislation that exacerbated the marriage penalty was not the increase in tax rates but the expansion of the Earned Income Tax Credit (EITC). The EITC is a refundable income tax credit for workers with low earnings. It creates marriage penalties because it is phased out as incomes rise and because it is maximized for workers with two children.17 No additional credit is available for three or more children in a single qualifying family. Depending on their income, therefore, a two-earner couple might significantly increase their joint EITC benefit by divorcing. And if they have more than two children, the benefits of divorce can be enormous. For example, in 1996, a two-earner couple with four children and $11,000 each in earnings would have increased their EITC payment from $1,375 to $7,120 by getting divorced, with each spouse claiming two children.18 Table VII illustrates the impact of the 1993 tax legislation on couples at various income levels.

Table VI - Marriage Penalties and Bonuses Before and After The Tax Act of 1986

Table VII - Marriage Penalties and Bonuses for Hypothetical Couples%2C Before and After the Clinton 1993 Tax Increase

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