Forty percent of Utah married couples are penalized for tying the knot - they'd pay less state and federal income tax if they just lived together, weren't legally married and filed separate income tax returns.

But the so-called "marriage penalty" really can't be solved by Utah legislators, state lawmakers were told Wednesday. Because state income taxes are based on incomes figured under federal tax rules, Congress has to fix the mess.And Congress is studying how to eliminate the marriage penalty. But whether something will be done this year or next is anyone's guess.

Wednesday, the U.S. House passed a bill that would eliminate the current federal income tax code on Dec. 31, 2002. The idea is that with that deadline, Congress would have to act to either drastically reform the current system or junk it in favor of some other kind of tax, like a national sales tax.

Getting rid of the marriage penalty is a top goal of the bill's sponsor, Rep. Steve Largent, R-Okla.

Democrats in the U.S. Senate vow to kill the GOP-backed measure. But besides that bill there are half a dozen other measures that deal in one way or another with the marriage penalty.

Forty percent of married Utahns filing joint returns pay, on average, $1,380 more a year in taxes than if they weren't married and filed individual returns, state tax officials told the Utah Legislature's Revenue and Taxation Interim Committee on Wednesday.

While that sounds bad, what usually isn't mentioned is that around 55 percent of married Utahns actually get a "marriage bonus." They pay, on average, $1,300 less tax than they would if they were single. The other 5 percent of married couples pay about the same, whether filing joint or individual returns.

Who pays more and who pays less is very complicated, the difference depending on how much more one spouse makes than the other, total income, bracket differences between single filers and joint filers.

Rep. Wayne Harper, R-West Jordan, says he doesn't want to do anything about those getting the "marriage bonuses."

"Everyone thinks we pay too much tax as it is," says Harper. But he would like to do something about the 40 percent of married Utahns who are harmed by the federal tax code.

Trouble is, it is really out of legislators' hands.

"There is no section (of federal income tax) code on the `marriage penalty' that could be repealed," said Utah Tax Commission economist Tom Williams, the commission's income tax expert. Instead, the various deductions, credits and income tax bracket law is scattered in 50 or 60 places in federal tax code.

There are half a dozen proposals now in Congress, and depending on which solution is adopted, Utah will lose between $10 million and $24 million a year in state income tax revenue, Williams explained.

The Utah state income tax code doesn't penalize married couples in most areas, Williams said. One exception is how the state code deals with the income taxes of retired married couples.

One thing that Harper can do is change that state income tax law. He said Wednesday he'll have legislation to do that but declined to say exactly what proposal he'll make. To do away with the retired couple marriage penalty will cost the state $18.5 million in tax revenue, Williams said.

Except for Harper's change, for now Utah legislators will just wait to see what Congress does about the "marriage penalty" and won't try to mess with a complicated state tax code that could just be made more complicated by any changes Congress may make in the federal income tax law.