California Grants Historic Tax Benefit to Gay Parents
They get same break enjoyed by straights
Lynda Gledhill / SF Chronicle 3nov00

Sacramento -- In a landmark decision, California has become the first state in the nation to give gay and lesbian parents the same tax benefits as heterosexual mothers and fathers.

A 3-to-2 decision by the state Board of Equalization said Helmi Hisserich, who is the sole wage earner for herself, her partner and their 3-year-old daughter, can claim head of household status on her state income tax forms.

It is the first time any state in the nation has specifically said gays and lesbians can be considered parents of children who are not biologically their own for tax purposes.

``It's very demoralizing to have a government authority say you are not a parent when you know you are a parent,'' said Shannon Minter, an attorney with the National Center for Lesbian Rights, who represented Hisserich. ``She has been a parent since before her daughter was born.''

Board of Equalization member Johan Klehs said for him the decision came down to applying the law equally.

``To qualify for head of household status you can't be married, you have to contribute at least half of the cost of maintaining the home, and the child has to live with you for more than half the year,'' he said.

``So when you apply the law, Helmi is unmarried -- in fact, the law prevents her from being married -- she is the sole support for the household, and the child is with them both all year,'' he added.

All kinds of people can claim head of household status, such as single parents.

Voting in favor of the decision along with Klehs were board members John Chiang and State Controller Kathleen Connell, who is running for mayor of Los Angeles. Voting against the decision were board members Dean Andal and Claude Parrish.

While the decision on Hisserich's case was made by the board in July, the written opinion issued this week allows the ruling to apply to all others in similar situations.

In an interview yesterday, Hisserich said she and her partner have been together 14 years and planned very carefully to have a child. They went to a sperm bank, her partner carried the child and then decided to stay home and raise their daughter.

``I was to be the primary earner and she would be the stay at home parent,'' Hisserich said. ``That year, I claimed head of household status. I talked to a lot of people; I even called the IRS hotline and they said it was right. So I was really surprised to get the audit letter.''

Hisserich's case started in 1997 and appeals have kept it pending. If she had lost the case, Hisserich would have had to repay the state about $7,000.

She said the case became a cause when one of the attorneys at the Franchise Tax Board said she couldn't claim the child of a friend.

``I was really offended by the statement,'' Hisserich said. ``That's when I dug in my heels.''

Hisserich then took the appeal to the Board of Equalization, the next step after the state's Franchise Tax Board.

``We are good, contributing members of society,'' she said. ``And yet we can't have the same legal protections as others. The case really did become less about the money, although that is important. It became a fight for respect.''

Klehs said this and the fact that the child is not claimed by anyone but the two individuals who are her parents also swayed his decision.

``These two people are taking responsibility for their child and our tax laws must encourage and support parental responsibility.''

Both Andal and Parrish, who voted against the decision, were in a board meeting and could not be reached for comment yesterday.

But the dissenting opinion said Hisserich should not qualify because there was no blood or legal relationship between her and her daughter. The dissent said Hisserich should file to adopt her daughter before claiming head of household status.

An adoption is pending, Hisserich said.

Aside from the legal issues, the dissenting opinion states that the decision discourages marriage and legal adoption.

``In the case before us, the decision removes an incentive to legally adopt the child,'' the opinion said. ``In the example of a similarly situated heterosexual couple, the decision removes an incentive for the couple to marry or for the male partner to legally adopt the child.''

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