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By Kathleen Ford Bay, Esq.
Lippincott Phelan Veidt PLLC, Austin, TX
The instructions to IRS Form 1040-X, Amended U.S. Individual Income Tax Return (revised as of December 2013), address same-sex partners' ability to amend their income tax returns to claim married filing jointly status: For federal tax purposes, individuals of the same sex are considered married if they were lawfully married in a state (or foreign country) whose laws authorize the marriage of two individuals of the same sex, even if the state (or foreign country) in which they now live does not recognize same-sex marriage. If you filed a return while you were married to someone of the same sex, you may be able to amend the return to file as married filing separately or married filing jointly.
Same-sex spouses. You may amend a return filed before September 16, 2013, to change your filing status to married filing separately or married filing jointly. But you are not required to change your filing status on a prior return, even if you amend that return for another reason. In either case, your amended return must be consistent with the filing status you choose. You must file the amended return before the expiration of the period of limitations.
Married filing jointly or separately often results in the payment of more income taxes than are assessed against two single people. This is often referred to as the "marriage penalty." Conversely, if estate taxes are due, the unlimited marital deduction will result in a deferral until the death of both spouses. Thus, it may be more likely that a surviving spouse will seek a refund of estate taxes as a result of the Supreme Court's decision in United States v. Windsor,1 than amend income tax returns. Will the duty of consistency require the survivor to amend the income tax return for the year of death and file it as married, filing jointly or separately? The instructions to IRS Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return (revised as of August 2014), address same-sex marriage, but not as clearly as the income tax instructions:On June 26, 2013, the United States Supreme Court held that Section 3 of the Defense of Marriage Act, which said that the terms "marriage" and "spouse" only apply to heterosexual couples, was unconstitutional. (United States v. Windsor, 570 U.S. 12 (2013)). The ruling impacts a number of federal laws, including those governing the reporting and collection of federal taxes. For federal tax purposes, the IRS recognizes same-sex marriages that are valid in the state where they were entered into, regardless of the married couple's residence. See Rev. Rul. 2013-17, 2013-38 I.R.B. 201. If you believe the new law may affect your estate or gift tax liability or filing requirement, please continue to monitor www.IRS.gov for additional guidance on the application of Windsor.
For more information, in the Tax Management Portfolios, see Maule, 503 T.M., Deductions: Overview and Conceptual Aspects, Peyser, 631 T.M., Refund Litigation, and in Tax Practice Series, see ¶3820, Tax Returns and Information Returns.
1 570 U.S. 12, 133 S. Ct. 2675 (2013).
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