Arthur Morgan (Louth, Sinn Fein)
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Question 218: To ask the Minister for Finance if his attention has been drawn to an anomaly that exists whereby an unmarried couple are assessed as a couple for the purposes of social welfare but are not recognised as a couple for the purposes of Revenue; and if he will make a statement on the matter. [48092/10]

Brian Lenihan Jnr (Dublin West, Fianna Fail)
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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 Protection. However, 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.

In the particular circumstances outlined, where a couple are cohabiting rather than married, they are treated as separate and unconnected individuals for the purpose of Income Tax. Each partner is a separate entity for tax purposes and, accordingly, credits, bands and reliefs cannot be transferred from one partner to the other. However, I should point out that relevant legislative changes to take account of the provisions under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, will be included in the forthcoming Finance Bill 2011.