Dáil Éireann - Volume 681 - 28 April, 2009
Written Answers. - Tax Code.
Deputy Caoimhghín Ó Caoláin Deputy Caoimhghín Ó Caoláin
Deputy Caoimhghín Ó Caoláin asked the Minister for Finance if his attention has been drawn to the anomaly whereby a cohabiting couple are treated as a single household for social welfare eligibility purposes, yet for Revenue Commissioner purposes they are treated as two individuals and may not benefit from each other’s tax credits; and if he will make a statement on the matter. [16139/09]
Deputy Brian Lenihan Deputy Brian Lenihan
Deputy Brian Lenihan: The position is that cohabitating couples are expressly recognised for the purpose of social welfare law but are not recognised for the purposes of income tax law. Although this may appear contradictory, the main aim of both the welfare code and the tax code is to uphold the constitutional right of married couples not to be treated less favourably than unmarried couples.
The basis for the current tax treatment of married couples derives from the Supreme Court decision in Murphy vs the Attorney General (1980) which held that it was contrary to the Constitution for a married couple to pay more tax than two single people living together and having the same income.
The treatment of cohabiting couples for the purposes of social welfare is primarily a matter for the Minister for Social Community and Family Affairs. However, my understanding is that it is also based on the principle that married couples should not be treated less favourably than cohabiting couples. This was given a constitutional underpinning following the Supreme Court decision in Hyland v Minister for Social Welfare (1989) which ruled that it was unconstitutional  for the total income a married couple received in social welfare benefits to be less than the couple would have received if they were unmarried and cohabiting.
Dáil Éireann 681 Written Answers. Tax Code.