Posted 2013-September-03, 14:40
Since the issue of the retroactive effect of the Supreme Court ruling declaring that parts of the Defense of Marriage Act (DOMA) are unconstitutional was discussed in this thread, I thought I would provide an update.
The Internal Revenue Service has ruled, in Revenue Ruling 2013-17, that same-sex couples will have the right to file their income tax returns as married filing jointly (joint returns) as long as they were married in a state which recognized same-sex marriages as legal at the time they were married. Furthermore, should they thereafter move to a state which does not recognize same-sex marriages as legal, the IRS will continue to recognize them as married and they will still have the right to file joint returns.
As for the retroactive effect of the ruling, I quote from the ruling:
The holdings of this ruling will be applied prospectively as of September 16, 2013.
Except as provided below, affected taxpayers also may rely on this revenue ruling for the purpose of filing original returns, amended returns, adjusted returns, or claims for credit or refund for any overpayment of tax resulting from these holdings, provided the applicable limitations period for filing such claim under section 6511 has not expired. If an affected taxpayer files an original return, amended return, adjusted return, or claim for credit or refund in reliance on this revenue ruling, all items required to be reported on the return or claim that are affected by the marital status of the taxpayer must be adjusted to be consistent with the marital status reported on the return or claim.
Taxpayers may rely (subject to the conditions in the preceding paragraph regarding the applicable limitations period and consistency within the return or claim) on this revenue ruling retroactively with respect to any employee benefit plan or arrangement or any benefit provided thereunder only for purposes of filing original returns, amended returns, adjusted returns, or claims for credit or refund of an overpayment of tax concerning employment tax and income tax with respect to employerprovided health coverage benefits or fringe benefits that were provided by the employer and are excludable from income under sections 106, 117(d), 119, 129, or 132 based on an individual's marital status. For purposes of the preceding sentence, if an employee made a pre-tax salary-reduction election for health coverage under a section 125 cafeteria plan sponsored by an employer and also elected to provide health coverage for a same-sex spouse on an after-tax basis under a group health plan sponsored by that employer, an affected taxpayer may treat the amounts that were paid by the employee for the coverage of the same-sex spouse on an after-tax basis as pre-tax salary reduction amounts.
The Service intends to issue further guidance on the retroactive application of the Supreme Court's opinion in Windsor to other employee benefits and employee benefit plans and arrangements. Such guidance will take into account the potential consequences of retroactive application to all taxpayers involved, including the plan sponsor, the plan or arrangement, employers, affected employees and beneficiaries. The Service anticipates that the future guidance will provide sufficient time for plan amendments and any necessary corrections so that the plan and benefits will retain favorable tax treatment for which they otherwise qualify.
So, as long as the period for fling amended returns has not expired, a same-sex couple can file an amended return on or after September 16, 2013, covering a period of time prior to September 16, 2013. They can also file original returns for any period if they have not already done so, and the return will be treated the same as if a different-sex couple (is that the correct phrase?) had filed a late original return.
And the IRS intends to issue further guidance on the subject in the future.