Monday, October 14, 2013

Federal Tax Rulings Treat Same-Sex Couples as Married for Tax Purposes

Q:       I heard legally married same-sex couples will now be treated as married for federal tax purposes. I was married in a state that allows same-sex marriages, but recently moved to a state that does not recognize our marriage. Will the IRS still recognize us as married for tax purposes even if our current state of residence does not?
A:        Yes. Due to a recent U.S. Department of the Treasury and Internal Revenue Service (IRS) ruling that takes effect Sept. 16, 2013, same-sex couples who were legally married in jurisdictions recognizing their marriages are to be treated as married for federal tax purposes. The ruling applies even if the couple lives in a jurisdiction that does not recognize same-sex marriage. This ruling implements federal tax aspects of the June 26, 2013 U.S. Supreme Court decision that invalidated a key provision of the 1996 Defense of Marriage Act.

Q:       What “federal tax purposes” does the ruling cover?
A:        Under the ruling, same-sex couples will be treated as married for all federal tax purposes, including income and gift and estate taxes. The ruling applies to all federal tax provisions where marriage is a factor, including filing status, claiming personal and dependency exemptions, taking the standard deduction, employee benefits, contributing to an IRA and claiming the earned income tax credit or child tax credit.

Q:       Does the ruling apply to registered domestic partnerships?
A:        No. The ruling covers any same-sex marriage legally entered into in one of the 50 states, the District of Columbia, a U.S. territory or a foreign country, but it does not apply to registered domestic partners, who are not married under state law.

Q:       How should legally married same-sex couples file their 2013 federal income tax return?
A:        Beginning Sept. 16, any return filed by legally married same-sex couples generally must use either the “married filing jointly” or “married filing separately” filing status. Individuals who were in same-sex marriages may, but are not required to, file original or amended returns choosing to be treated as married for federal tax purposes for one or more prior tax years still open under the statute of limitations. 

Q:       What is the statute of limitations for filing a tax refund claim?
A:        Generally, you have three years from the date the return was filed or two years from the date the tax was paid, whichever is later, to file your claim. This means that in 2013 you can file refund claims for tax years 2010, 2011 and 2012. In some special circumstances (such as signing an agreement with the IRS to keep the statute of limitations open), taxpayers may be allowed to file refund claims for tax years 2009 and earlier.

Q:       I bought same-sex spouse health insurance coverage from my employer on an after-tax basis. Do I get any credit for that?
A:        Yes. You may treat the amounts you paid for that coverage as pre-tax and exclude those amounts from your taxable income.

Q:       How do I file a refund claim?
A:        To file a refund claim for income taxes, you should use Form 1040X, Amended U.S. Individual Income Tax Return. To file a refund claim for gift or estate taxes, use Form 843, Claim for Refund and Request for Abatement. For information on filing an amended return, see Tax Topic 308, Amended Returns, available on, or the Instructions to Forms 1040X and 843. You can find information about where to file your amended returns in the form instructions.

Q:       Will employers receive guidance about getting refunds for past benefits provided to same-sex spouses?
A:        Yes. The U.S. Treasury and the IRS intend to issue streamlined procedures for employers wishing to file refund claims for payroll taxes paid on previously taxed health insurance and fringe benefits provided to same-sex spouses. The Treasury and IRS also intend to issue further guidance on cafeteria plans and on how qualified retirement plans and other tax-favored arrangements should treat same-sex spouses for periods prior to the revenue ruling’s effective date of Sept. 16, 2013. Other government agencies also may provide guidance related to same-sex marriage on the federal programs they administer.

Q:       Where can I get more information?
A:        Visit for Revenue Ruling 2013-17, and to find updated Frequently Asked Questions (FAQs) about same-sex couples, registered domestic partners and individuals in civil unions.

This “Law You Can Use” column was prepared by the Ohio State Bar Association (OSBA). The information was provided by the Internal Revenue Service ( The column offers general information about the law. Seek an attorney’s advice before applying this information to a legal problem. For more information on a variety of legal topics, visit the OSBA’s website at

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