In a revenue ruling and frequently asked questions (FAQs), the IRS has released much-awaited guidance for legally married same-sex couples (Treasury Department News Release TDNR JL-2153; IRS News Release IR-2013-72; Rev. Rul. 2013-17, 2013-38 IRB __). The IRS has adopted a general rule for federal tax purposes that recognizes as same-sex marriage if it is valid in the jurisdiction where it was entered into, regardless of the couple’s place of domicile. The guidance reflects the U.S. Supreme Court’s June 26 decision, United States v. Windsor, SCt, 2013-2 ustc ¶50,400, striking down Section 3 of the Defense of Marriage Act, P.L. 104-199, which had prevented the IRS from recognizing same-sex marriages for federal tax purposes.
Under Rev. Rul. 2013-17, legally married same-sex couples will be treated as married for all federal tax purposes, including income and gift and estate taxes, the IRS explained.
“The guidance provides an important first step in understanding two key issues: the effective date of the change, and the definition of spouse for Code purposes,” Elizabeth Dold, principal, The Groom Law Group, Chartered, Washington, D.C., told CCH. “The adoption of the place-of-celebration approach will ease administration of employee benefit plans, and pending guidance on qualified plans (and any retroactive impact), and a streamlined payroll refund process for employers will round out the guidance.”
For tax year 2013 and going forward, same-sex spouses generally must file using a married-filing-separately or joint-filing status. For tax year 2012 and all prior years, same-sex spouses who file an original tax return on or after September 16, 2013 (the effective date of Rev. Rul. 2013-17), generally must file using a married-filing-separately or joint- filing status. Same-sex spouses who filed their 2012 tax-year return before September 16, 2013, may choose (but are not required) to amend their federal tax returns to file using married-filing-separately or joint-filing status.
For tax years 2011 and earlier, same-sex spouses who filed their tax returns timely may choose (but are not required) to amend their federal tax returns to file using married-filing-separately or joint- filing status, provided the period of limitations for amending the return has not expired.