Charles Merrill, a self-made millionaire and cousin of the co-founder of Merrill Lynch, could end up serving three years or more in jail for not filing income taxes since beginning a tax protest in 2004.

A self-described artist, bisexual and fervent atheist, Merrill has refused to pay his taxes in protest of the Defense of Marriage Act and alleged "anti-gay discrimination implicit in the U.S. federal tax code." He faces a penalty of three years in prison or a $25,000 fine for each year he has not filed taxes.

Merrill was married for 23 years to Evangeline Johnson, the only daughter of Johnson & Johnson founder Robert Wood Johnson, but has spent the past 16 years with his partner Kevin Boyle. He said that he experienced the benefits afforded by the Tax Code to straight couples during his marriage, but saw firsthand the unfairness of the laws when they were applied to same-sex couples.

Merrill said he does not expect the federal government to make an example of him, as it did with the Wesley Snipes tax protest case. "I talked with the IRS lawyer handling my case, and they all want me to file," he wrote in an e-mail to WebCPA. "The trouble with this is that filing jointly with my partner could give them leeway to case law, and it was ruled a frivolous case. The case law happened about five years ago in Chicago and the man spent time in prison. I am 74 tomorrow, and my case is a protest case. I am not expecting the judge to change the law concerning DOMA. They can't, as it is an act of Congress signed by the president. However, if Obama is elected, he has said he would repeal DOMA."

Merrill objects to the law as a "church and state issue." "Marriage is a civil ceremony, and churches are only given the privilege to marry people," he said.  "However, all the federal benefits of marriage are excluded in civil unions.  This is why California's acceptance of 'gender neutral' couples is a milestone, and the federal benefits will come later.  But someone has to protest, and that person seems to be me and a few other couples."

The next hearing is scheduled for Nov. 17 at the U.S. Tax Court in San Diego, but lawyers have filed a motion to consolidate the cases for Merill's 2004 and 2005 tax returns to another hearing scheduled for May of next year.

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