IRS Issues Guidance on Employment Tax Issues for Same-Sex Spouses

On September 23, 2013, the IRS issued Notice 2013-61, in which it applied the Windsor decision (see my detailed discussion on this case) and Rev. Rul. 2013-17 (which I’ve previously discussed) to employment tax issues.  More specifically, Notice 2013-61 provides guidance for employers and employees to make claims for refund or adjustment of overpayment of FICA taxes and income tax withholding with respect to certain benefits provided to same-sex spouses as a result of Windsor.

In order to reduce administrative burdens, it provides (in much greater detail than this posting will provide) special, optional administrative procedures for employers to correct overpayment of employment taxes for 2013 and prior years.

For overpayment of taxes in 2013, it provides these two procedures:

1) Employers may use the fourth quarter 2013 Form 941 (Employer’s QUARTERLY Federal Tax Return) to correct overpayment of taxes for the first three quarters of 2013.

2) Employers may file on Form 941-X (Adjusted Employer’s QUARTERLY Federal Tax Return or Claim for Refund) for the fourth quarter of 2013 to correct overpayments of taxes for all quarters of 2013.

For overpayments of taxes before for years before 2013: Employers can make a claim or adjustment for all four quarters of a year on one Form 941-X filed for the fourth quarter of the year.

The Notice also provides guidance as to Forms 941 of same-sex spouses for the third quarter of 2013 and the general rules for correction of overpayment of employment taxes.


Want to further discuss these issues?  Feel free to contact me at 954-944-3929 or nrumbak@rumbaklaw.com.

*This document contains legal information, but does not contain legal advice.

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