Legal Same-Sex Marriage Recognized For Federal Taxes

Bloomberg Law for HR Professionals is a complete, one-stop resource, continuously updated, providing HR professionals with fast answers to a wide range of domestic and international human resources...

By Lydia Beyoud  

Same-sex married couples will be recognized as legally married for all federal tax purposes, regardless of where they live, so long as they were married in a jurisdiction that recognizes such marriages as legal, the Treasury Department and Internal Revenue Service said Aug. 29 in joint news releases.

Treasury and the IRS also issued Revenue Ruling 2013-17 announcing their position.

“The ruling implements federal tax aspects of the June 26th Supreme Court decision invalidating a key provision of the 1996 Defense of Marriage Act,” the IRS said in the release (IR-2013-72).

The ruling applies to any same-sex marriage legally entered in any of the 50 states, the District of Columbia, U.S. territories or a foreign country, Treasury said.

However, the ruling does not apply to registered domestic partnerships, civil unions, or similar formal relationships recognized under state law, it said.

“Today's ruling provides certainty and clear, coherent tax filing guidance for all legally married same-sex couples nationwide. It provides access to benefits, responsibilities and protections under federal tax law that all Americans deserve,” Treasury Secretary Jacob J. Lew said in remarks released with the statement.

“This ruling also assures legally married same-sex couples that they can move freely throughout the country knowing that their federal filing status will not change,” Lew said.

The revenue ruling states that the reasoning behind providing what many practitioners viewed as the most liberal (and easily administered) option for recognizing same-sex marriage relied upon a 1958 decision (Revenue Ruling 58-66), in which the Service decided to recognize common-law marriages for federal income tax purposes.

A senior Treasury official corroborated that reasoning during an Aug. 29 conference call with the press. The 1958 ruling recognized common-law marriages performed in states recognizing such unions, regardless of where the couple later moved, Treasury said.

“Although states have different rules of marriage recognition, uniform nationwide rules are essential for efficient and fair tax administration. A rule under which a couple's marital status could change simply by moving from one state to another state would be prohibitively difficult and costly for the Service to administer, and for many taxpayers to apply,” the IRS said in the new revenue ruling.

An additional reason for the ruling was that, from a tax administration standpoint, it would have been more complex to apply federal tax codes dependent upon state law than to recognize legal unions nationwide, the senior Treasury official said.

Legally married same-sex couples generally must file their 2013 federal income tax return using either the “married filing jointly” or “married filing separately” filing status, the IRS said.

Taxpayers who were in same-sex marriages prior to the ruling may choose to file original, amended or adjusted returns to be treated as married for federal tax purposes for prior tax years still open under the statute of limitations. They may also file for claims for credit or refund for any overpayment of tax resulting from the holdings, “so long as the applicable limitations period for filing such claim under tax code Section 6511 has not expired,” the IRS said.

The statute of limitations is generally open for the previous three tax years, such that refund claims could still be filed for tax years 2010, 2011 and 2012, the IRS said. Additionally, taxpayers who filed protective claims contingent upon the Supreme Court's ruling in the United States v. Windsor case and were able to hold the statute of limitations open beyond 2010 may also file for those years, the Service said (64 BTM 209, 7/2/13).


Texts of the IRS's news release (IR-2013-72), Rev. Rul. 2013-17 and the same-sex spouses and domestic partners FAQs are in TaxCore.

Request Bloomberg Law for HR Professionals