Defense of Marriage Act – IRS Rules for 2012 and Before

Recently the Supreme Court determined legally married same sex couples are married for Federal tax purposes.

For purposes of income tax return filing, this means the couple is a married couple and therefore will file MFJ or MFS (or HH if the married taxpayer meets the special conditions that allow a married person to be treated as unmarried).  Such a Court ruling is retroactive since it did not specifically designate an effective date.  The Court’s ruling only affects taxpayers who are married; it does NOT affect taxpayers who have entered into a registered domestic partnership, civil union, or other similar formal relationship recognized under state law that is not denominated as a marriage under the laws of that state.

As a retroactive ruling this means any open year tax returns filed as if the taxpayer was single are incorrect.



In Revenue Ruling 2013-17 IRS has addressed many questions we have had.  Here are some questions which IRS has now answered (answers are in CAPITAL LETTERS):

• How do we file any unfiled 2012’s return (or original late prior year’s returns)?

IRS ANSWER - FILE 2012’S RETURN EITHER AS MARRIED OR AS SINGLE AS THE TAXPAYER CHOOSES.

• Are we required to amend open years (even if it is to the detriment of the taxpayer)?,

- AMEND THE OPEN YEARS IF THE TAXPAYER WANTS TO.  LEAVE THE OPEN YEARS’ RETURNS ALONE IF THE TAXPAYER WANTS TO.

• What will a taxpayer’s marital status be if the taxpayer moves to a state that does not have same sex marriages?

- A TAXPAYER WHO IS LAWFULLY MARRIED IN ONE STATE WILL CONTINUE TO BE LAWFULLY MARRIED FOR FEDERAL TAX PURPOSES IF THAT TAXPAYER MOVES TO A STATE THAT DOES NOT HAVE SUCH MARRIAGES.  (This is the same position IRS took in Revenue Ruling 58-66 regarding a couple who became married under common law in one state and moved to a state that did not recognize such a marriage).

• Can a same sex couple enter into a common law marriage (in those states that have both same sex marriages AND common law marriages)?

- YES

• Can a taxpayer with a same sex spouse take advantage of pre-tax fringe benefits, such as health insurance?

- YES.  IRS plans to issue guidance on cafeteria plans, pensions, and other tax-favored arrangements.

The tax issues created by the Supreme Court ruling can be summarized by mainly putting one thought in your mind – “Legally married same sex couples are taxed in exactly the same manner as legally married opposite sex couples.”  If you think of the issue in this manner, you should be fine.  This includes income tax return filing status, dependents, deductions, credits, etc.; estate taxation, pretax benefits; pension contributions; attribution of ownership rules; and any other Federal tax matters.

According to the NCPE’s Fellowship (www.ncpefellowship.com) the District of Columbia and the following states recognize same sex marriages:  California, Connecticut, Delaware (effective July 1, 2013), Iowa, Maine, Maryland, Massachusetts, Minnesota (effective August 1, 2013), New Hampshire, New York, Rhode Island (effective August 1, 2013), Vermont, and Washington.  There are also several Native American tribes and some counties in New Mexico that have allowed marriage licenses to be issued.  The “marriage” of a same sex couple is not to be confused with civil unions or other state provisions.

-This text has been shared with you courtesy of: David & Mary Mellem, EAs & Ashwaubenon Tax Professionals