We think you should ignore the tax commission on this.
That's right. We're recommending you not follow this rule, even though it's generally considered a crime to purposely violate state tax law. In this case, there is a wealth of law on your side, and this rule is a last gasp from a frustrated group who fought and lost the battle to keep you from marrying.
The tax commission's rule is a product of legal advice given by the Utah Attorney General's office, which is headed by John Swallow. Yes, that's the same John Swallow who has demonstrated extremely poor judgment in interacting with suspected and convicted criminals.
John Swallow doesn't think he has done anything wrong, but he thinks you have.
Swallow and the tax commission want you to prepare three federal returns. To compute your state tax, you would have to prepare federal returns for each of you separately that you wouldn't submit to the IRS, while still preparing the joint return you would submit.
It's unlikely the state would catch you if you just went ahead and filed a joint return. The state receives thousands of returns each year from married couples, and they are processed by computers. There is nothing in either the state or federal tax system that compares the returns with marriage records. And there's no state tax commission employee who is sifting through joint returns to see if there is a "James" married to a "David" or a "Linda" married to a "Susan." As long as you're not taking some dodgy deduction that will get you audited, it's unlikely the state would ever know.
What if you did get caught? Call Brett Tolman.
Tolman is a top-notch lawyer for Ray, Quinney and Nebeker and former U.S. Attorney for Utah who can litigate circles around Swallow. He co-authored an op-ed piece in Sunday's Tribune saying Utah's Amendment 3 was doomed the moment the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act last June. Tolman also noted that even conservative Justice Antonin Scalia grudgingly acknowledged "the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking."
Scalia sees the writing on the wall, but Swallow's office filed a lengthy defense of Amendment 3.
Who are you going to listen to? Brett Tolman and Antonin Scalia, or John Swallow?
Instead of trying to figure out which one of you should take the mortgage deduction, just file jointly. This is America, not some backward nation that will kill your hard-fought rights.