IRS Adopts a Uniform Policy: All Legal Same-Sex Marriages Recognized for Federal Tax Purposes

In the wake of the U.S. Supreme Court’s recent landmark decision in , the U.S. Department of the Treasury and the Internal Revenue Service (“IRS”) ruled that same-sex marriages will be recognized for federal tax purposes, even if the married couple is domiciled in a state that does not recognize same-sex marriage. For example, lawfully married same-sex couples in New York will be treated as married for federal tax purposes, even if they permanently relocated to New Jersey or Florida, states that currently do not recognize same-sex marriage.

The decision struck down Section 3 of the 1996 Defense of Marriage Act (which excluded same-sex couples from the federal definitions of “marriage” and “spouse”) as unconstitutional. Yet the Court’s decision raised the issue of whether federal benefits would extend to same-sex married couples domiciled in states that do not recognize same-sex marriage.

 For federal tax purposes, the terms “spouse,” “husband and wife,” “husband,” and “wife” include an individual married to a person of the same sex if the individuals are lawfully married under state (including any foreign jurisdiction having the legal authority to sanction marriages) law, and the term “marriage” includes such a marriage between individuals of the same sex, regardless of an individual’s place of domicile. Significantly, however, these terms do not cover registered domestic partnerships, civil unions, or other similar formal relationships recognized under state law for federal tax purposes.

In contrast, the U.S. Department of Labor recently clarified that the Family and Medical Leave Act (“FMLA”) covers same-sex married couples to the extent that an individual’s marriage is recognized in the state in which the employee resides. However, the U.S. Office of Personnel Management (which administers FMLA for most federal employees) has announced that it is extending certain benefits to federal employees and annuitants who have legally married a spouse of the same sex, regardless of the employee’s or annuitant’s place of residence.

Individuals who were in same-sex marriages may (but are not required to) file original or amended returns with married status for federal tax purposes within the statute of limitations for past tax years. Generally, the statute of limitations for filing a refund claim is three years from the date the return was filed or two years from the time the tax was paid, whichever is later.