On Aug. 29, 2013, the IRS issued Revenue Ruling 2013-17, which describes how the IRS will handle same-sex marriages for federal tax purposes in light of the U.S. Supreme Court decision that found a part of the Defense of Marriage Act (DOMA) unconstitutional. The ruling says:
- The IRS will consider a person in a same-sex marriage as married if they were legally married in any state, territory, or foreign country, even if the couple is currently living in a state that does not recognize same-sex marriage.
- The IRS will not consider a person in a same-sex (or opposite sex) civil union or domestic partnership, even if a “registered” domestic partnership, as “married.”
This ruling means that employers must allow employees in same-sex marriages to pay the premiums of their covered same-sex spouses (and eligible dependent children) on a tax-favored basis. This needs to occur regardless of whether the employer or employee is located in a state that recognizes same-sex marriage. Employers that have been imputing income for the cost of the same-sex spouse’s coverage should discontinue that practice. Employers that use a Section 125 cafeteria plan should allow premiums for same-sex spouses to be paid on a pre-tax basis.
Employers still must impute income on, or require after-tax payment for, premiums to cover the partner of an employee who is in a civil union or a domestic partnership because these individuals are not literally legally “married.”
Employers may make needed adjustments in tax withholding for 2013 (but not prior years) until the end of this year. Employees generally may file for refunds of premiums paid on an after-tax basis, or for which income was imputed, for the prior three years, by filing a Form 1040X. Employers may file for a refund of over-withheld payroll taxes for open years. The IRS will provide details of a streamlined refund process for employers at a later date.
Future government releases will address other benefits aspects of this decision.