On August 29, 2013, the Internal Revenue Service (IRS) released guidance regarding the treatment of same sex spouses for tax purposes. The IRS guidance came in response to the U.S. Supreme Court Decision of United States v. Windsor, in which the Court struck down a portion of the Defense of Marriage Act (DOMA).
The IRS guidance indicates that same sex couples who are legally married will be treated as married for all federal tax purposes, including income and gift and estate taxes. The guidance also makes clear that the IRS will apply a “place of celebration” approach, rather than a “place of domicile” approach. That means same sex couples who are married in a state or country where such marriage is legal will be treated as married, even if they live in a state that does not recognize same sex marriage. This will likely create issues for states that do not recognize same sex marriage but use a person’s Federal tax return as the basis for calculating state taxes.
The guidance also directs that same sex couples who are in civil unions or domestic partnerships are not eligible to file as married.
Same sex married couples must file their 2013 federal income tax return using either the married filing jointly or married filing separately filing status. They may also file amended returns for any tax years that are still open under the statute of limitations (generally the past three tax years). Couples will likely want to amend returns if it will result in a refund, but are not required to amend returns if they would have paid more.
For more information on this issue, please see the article at the link below written by our colleague, M. Paul Mahalick, CPA of Grossman St. Amour Certified Public Accountants PLLC:
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