IRS: All Legal Same-Sex Marriages Recognized for Federal Tax Purposes

As I mentioned in a previous posting, a major concern after the U.S. Supreme Court reached its decision holding DOMA unconstitutional was whether federal benefits of marriage would be available to a same-sex couple who are married in a state that recognizes same-sex marriages but that lives in a state that does not recognize same-sex marriages.   Which state law is applicable: the law of the state in which the marriage ceremony occurred (the state of “ceremony” or “celebration”) or the law of the state in which the couple resides (the state of “domicile” or “residence”)?  With regard to all federal tax purposes, the IRS, in Rev. Rul. 2013-17, ruled that same-sex couples, legally married in jurisdictions that recognize their marriages, will be treated as married.  In addition, provisions in the Internal Revenue Code and Treasury regulations that refer to "spouse," "husband and wife," "husband," and "wife" include same-sex individuals who are lawfully married under any the law of any domestic or foreign jurisdiction having the legal authority to sanction marriages.  The term "marriage" includes a marriage between these individuals.  This ruling applies regardless of whether or not the couple lives in a jurisdiction that recognizes same-sex marriage.  Thus, the government has adopted the position that the law of the state of "ceremony" or celebration, not the state of "domicile" or "residence" of the couple is applicable.The ruling also maintains that individuals in same-sex marriages during previous years that are still open under the statute of limitations may file original or amended returns in which they choose to be treated as married and file refund claims.The IRS maintains that in general, for 2013 and all years thereafter, same-sex spouses generally must file using a married filing separately or jointly filing status.

For Federal tax purposes, the term “marriage” does not include either opposite-sex or same-sex registered domestic partnerships, civil unions, or other similar formal relationships recognized under state law that are not denominated as a marriage under that state’s law, and the terms “spouse,” “husband and wife,” “husband,” and “wife” do not include individuals who have entered into such a formal relationship.

See also IR-2013-72 (August 29, 2013); Answers to Frequently Asked Questions for Individuals of the Same Sex Who Are Married Under State Law;  Answers to Frequently Asked Questions for Registered Domestic Partners and Individuals in Civil Unions (Same-sex and opposite-sex couples in registered domestic partnerships, civil unions, or other similar formal relationships that are not marriages under state law are not considered as married or spouses for federal tax purposes).Kelly Phillips Erb has also written about this development. Want to further discuss these issues?  Contact me at 954-944-3929 or nrumbak@rumbaklaw.com.*This document contains legal information, but does not contain legal advice.