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Oct. 27 — The status quo remains intact for retirement plans following recent Internal Revenue Service proposed regulations on same-sex marriage, attorneys told Bloomberg BNA.
The proposed regulations (REG-148998-13) saying the terms “husband and wife” apply to couples in same-sex marriages recognized in any state for federal tax purposes are “the final chapter closing the loop on” same-sex marriage for retirement plans, said Elizabeth T. Dold, a principal with Groom Law Group Chartered in Washington.
The rules, issued Oct. 21, implement the U.S. Supreme Court's June decision in Obergefell v. Hodges, which legalized same-sex marriage nationwide. They don't offer any changes for retirement plans because the IRS already issued more specific guidance in Revenue Ruling 2013-17 following the high court's 2013 decision in United States v. Windsor striking down a key part of a federal law that excluded state-sanctioned same-sex marriage from the federal definition of marriage. Rev. Rul. 2013-17 said the Treasury Department and the IRS recognize legal same-sex marriages for all federal tax purposes, regardless of law in the state where the couple lived.
That guidance was followed by Notice 2014-19, which detailed the application of Rev. Rul. 2013-17 to qualified retirement plans, saying that retirement plans can apply the guidance in Rev. Rul. 2013-17 prospectively as of June 26, 2013.
That guidance still remains in effect and Rev. Rul. 2013-17 and Notice 2014-19 can be relied on until regulations are finalized, the IRS said in the proposed rules.
Brian J. Tiemann, a partner with McDermott Will & Emery LLP's Chicago office, echoed Dold's comments, telling Bloomberg BNA that the IRS rules confirm what retirement plans already knew.
“The guidance is really just taking what the IRS had previously said in Rev. Rul. 2013-17 and putting it in regulations,” he said.
He added that implications for retirement plans were addressed following the Windsor decision and the “benefits and obligations” for same-sex spouses under the tax code and the Employee Retirement Income Security Act came into play at that time.
Both Dold and Tiemann said that there aren't any lingering issues on retroactivity.
“The implications at this point are pretty clear and most plan sponsors are already administering their plans and treating same-sex spouses the same” for retirement plan purposes, Tiemann said.
For more information, see Compensation and Benefits Library's Domestic Partner and Same-Sex Marriage Benefits chapter.
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