Can a same-sex married couple elect to treat a jointly owned and operated unincorporated business as a Qualified Joint Venture

Yes, a same-sex married couple can elect to treat a jointly owned and operated unincorporated business as a Qualified Joint Venture.

For federal tax purposes, same-sex marriages are treated the same as opposite-sex marriages. The term "spouse" includes individuals married to a person of the same sex. Therefore, the same rules that apply to opposite-sex married couples regarding Qualified Joint Ventures also apply to same-sex married couples.

A Qualified Joint Venture allows married couples who jointly own and operate a business to avoid federal partnership tax treatment by electing to be treated as a Qualified Joint Venture. This means that the business is not treated as a partnership for federal tax purposes, and each spouse reports their share of income, gain, loss, deduction, and credit on their individual tax returns as sole proprietors.

To qualify as a Qualified Joint Venture, the following conditions must be met:

1. The only members of the joint venture are a married couple who file a joint tax return.
2. The spouses own and operate the trade or business as co-owners, and not in the name of a state law entity such as an LLC or LLP.
3. Both spouses materially participate in the trade or business.
4. Both spouses elect qualified joint venture status on their joint tax return by dividing the items of income, gain, loss, deduction, credit, and expenses in accordance with their respective interests in the venture.

Given these conditions, same-sex married couples who meet these requirements can elect to treat their jointly owned and operated unincorporated business as a Qualified Joint Venture.

Sources:
§ 761. Terms defined
Rev. Proc. 2002-69
Publication 541 (3/2021)
Publication 555 (3/2020)
Publication 1635 (2/2014)