Someone recently asked me what federal tax issues are still outstanding regarding DOMA and the effect of the June 2013 Windsor decision. There are still a few income tax issues that come to mind (there are also estate and gift and state tax issues as well), that were not covered in the initial guidance (Rev. Rul. 2013-17). Here is my list. Do you have any input or additional ones to add?
Amended returns
Will the IRS issue guidance to assist in the filing of
amended returns? The current version of Form 1040X is not conducive to
showing how two prior separate returns will now be treated as one
MFJ return.
If a same-sex married employee tells his employer that he would
like to get his FICA tax refunded by the employer, does that mean the
employee must also amend his income tax form for that year to also use a
married status? Notice 2013-61 and Rev. Rul. 2013-17 are silent on this question.
Assume a same-sex married taxpayer discovers an error on her 2011
return, such as omitted income. Can she amend it without changing her
filing status? This likely depends on the proper interpretation of the
effective date language of Rev. Rul. 2013-17. It includes this statement: “If an affected taxpayer files an original return, amended
return adjusted return, or claim for credit or refund in reliance on this revenue ruling, all items required to be reported on the return or
claim that are affected by the marital status of the taxpayer must be
adjusted to be consistent with the marital status reported on the return
or claim for refund.” [italics added] Perhaps since the amended return
is filed to correct an income omission, it is not filed "in reliance on
this ruling". But if the taxpayer changes anything on the return to reflect a different filing status, then everything would need to be changed to reflect that status (including the spouse also amending if
MFJ status will be claimed).
Audit of pre-2013 returns
If a same-sex married individual has a pre-2013 return audited,
will the IRS change the marital status?
Will the individual be allowed to request such a change?
What do you think?
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