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DOL Guidance on Same-Sex Spouses Mirrors IRS's, but Practitioners See Some Divergence

Tuesday, October 29, 2013
By Kristen Ricaurte Knebel

Oct. 25 --Department of Labor guidance providing that the terms “spouse” and “marriage” under the Employee Retirement Income Security Act now include same-sex legally married couples was a confirmation of earlier Internal Revenue Service guidance, but some issues remain on the health and welfare plan side that could lead to legal action down the line, practitioners told Bloomberg BNA in a series of interviews.

“They're sort of companion guidance. There's the IRS guidance that came out in the form of an IRS notice [and revenue ruling] and then there's the ERISA guidance,” Todd A. Solomon, a partner at McDermott Will & Emery in Chicago, said Oct. 24. Together, both pieces of guidance “have significant impact on any qualified plan, or plan governed by ERISA,” he said.

Solomon said the difference between the IRS and the DOL guidance is that “there are certain mandated provisions that apply to spouses under ERISA and the tax code as to retirement plans and [that is] not necessarily the case for health and welfare plans.”

On Sept. 18, the DOL followed guidance on same-sex married couples issued by the IRS with Technical Release 2013-04 . In the guidance, the DOL said its new reading of the terms “spouse” and “marriage” is consistent with the U.S. Supreme Court's June 26 decision in United States v. Windsor (U.S., No. 12-307, 6/26/13), which invalidated a key provision of the Defense of Marriage Act .

On Aug. 29, the IRS released Revenue Ruling 2013-17, which announced that the IRS would recognize all legally married same-sex couples for federal tax purposes regardless of where the couple lived . On Sept. 23, the IRS added to that guidance with Notice 2013-61, providing employers with two special administrative procedures to correct overpayments of employment taxes for 2013 and prior years for certain same-sex spouse benefits such as employer-provided health care or cafeteria plans.

To contact the reporter on this story: Kristen Ricaurte Knebel in Washington at kknebel@bna.com

To contact the editor responsible for this story: Phil Kushin at pkushin@bna.com

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