By STEVEN A. SIGSBURY
The Internal Revenue Service on Aug. 29 issued Rev. Rul. 2013-17, which states that the Service has formally adopted the “place of celebration” rule with regard to recognition of same-sex marriages for federal tax purposes.
Historically, the Service interpreted Section 3 of the Defense of Marriage Act (DOMA) as prohibiting it from recognizing same-sex marriages in its application of the federal tax laws.
However, Section 3 of DOMA was ruled unconstitutional by the U.S. Supreme Court in U.S. v. Windsor. The Service, and most other federal agencies, are now re-issuing administrative rules and regulations regarding this issue. Rev. Rul. 2013-17 provides guidance on how the Service will interpret the many Code sections that refer to a taxpayer’s marital status, post-Windsor.
Under Rev. Rul. 2013-17, the Service will interpret the term “spouse” to include an individual who is married to a person of the same sex if the couple was lawfully married in any domestic or foreign jurisdiction that recognized the marriage at the time of the marriage (the “place of celebration” rule), even if the couple becomes subsequently domiciled in a state that does not recognize a same-sex marriage as a valid legal marriage. The Service will also interpret the term “marriage” to include a same-sex marriage and the terms “husband” and “wife” to include same-sex spouses. The term “marriage,” however, does not include a registered domestic partnership, civil union, or other similar formal relationship that may be recognized under a state’s law but that is not treated as a “marriage” under that state’s laws. Further, the terms “spouse,” “husband and wife,” “husband,” and “wife” do not include individuals who have entered into one of those formal relationships.
The Service reasoned that “uniform nationwide rules are essential for efficient and fair tax administration. A rule under which a couple’s marital status could change by moving to another state would be prohibitively difficult and costly for the Service to administer, and for many taxpayers to apply.
The effective date of Rev. Rul. 2013-17 is Sept. 16, 2013. All original returns filed after this date, including any 2012 returns that are on extension, by a married same-sex couple must be filed using the “married filing jointly” (MFJ) or “married filing separately” (MFS) filing status.
Taxpayers may choose, but are not required, to amend an original federal tax return that is filed prior to Sept. 16, 2013 in order to file using a MFJ or MFS filing status, provided the period of limitations for amending the return has not expired. Generally, a taxpayer may file a claim for refund for up to three years following the date an original return was filed or two years from the date that the tax was deemed paid, whichever is later.
Questions regarding whether to file an amended return or to claim a refund should be directed to a certified public accountant or other person qualified to answer federal tax questions.
This is part of a series of monthly articles by Jackson & Campbell on legal issues of interest to the LBGT community. Jackson & Campbell is a full service law firm based in Washington with offices in Maryland and Virginia. If you have any questions regarding this article, contact Steven A. Sigsbury at 202-457-1627 or SSigsbury@jackscamp.com. If you have any questions regarding our firm, please contact Don Uttrich, who chairs our Diversity Committee, at 202-457-4266 or email@example.com.