Posts Tagged: DOMA

Revenue Ruling 2013-17 Clarifies Application of Windsor

Author: Alison Lothes, Esq., Sullivan & Worcester LLP

In Revenue Ruling 2013-17 (8/29/2013), the U.S. Department of Treasury and the Internal Revenue Service issued guidance regarding the application of U.S. v. Windsor, 570 U.S. ___ (2013), which held that the exclusion of same sex couples from the definition of marriage under the Defense of Marriage Act was unconstitutional.  The ruling contained three important determinations.

First, same-sex couples will be considered married for federal tax purposes if they are lawfully married under state law based on the state of the “celebration” (i.e., legal ceremony) of their marriage.  This means that if a couple has been legally married in one state, but later moves to another state which does not recognize same-sex marriage, the couple will still be considered married for federal tax purposes, regardless of their domicile.  The ruling reasoned that this was a natural development of Revenue Ruling 58-66, which held that a couple married through common-law continues to be treated as married for federal purposes even if they move to a state which does not recognize common-law marriages.

Second, the terms “husband”, “wife”, “spouse” and “marriage” will be interpreted in a gender neutral way to refer to persons married in a same-sex marriage.  The Ruling noted that these terms appear in more than 200 Code provisions and Treasury regulations, and that a gender-neutral construction is necessary to avoid constitutional problems under Windsor and consistent with legislative history.

Third, the terms “spouse” and “husband” and “wife” do not include persons who have entered into a domestic partnership, civil union or other formal relationship other than marriage that may be recognized by a state. This applies to both same-sex or opposite-sex couples.

The ruling noted that while the ruling will be applied prospectively as of September 16, 2013, taxpayers may file original, amended, or adjusted returns declaring their marital status as long as the statute of limitations has not expired.  Therefore, amended returns may generally be filed for 2010, 2011 and 2012.  In addition, further guidance will be issued regarding how Windsor will apply to employee benefits and plans.