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IRS Guidance on Same-Sex Marriage


All legally married same-sex couples will be treated as married for federal tax purposes whether or not the couple lives in a jurisdiction that recognizes same-sex marriage, the IRS announced on August 29. The ruling, issued two months after the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA) in E.S. Windsor (2013-2 ustc ¶50,400, June 26, 2013), affects all federal taxes, including income taxes, estate and gift taxes, payroll taxes associated with employee spousal benefits, and more.

In an effort to simplify and streamline tax administration as much as possible, the IRS, like many other federal agencies, took a “place of celebration” approach rather than using a couple’s “place of domicile” to determine their tax status. Meaning that under these new rules, same-sex marriages that are valid in the state where they were performed will be recognized for all federal tax purposes, even if the couple is domiciled in a state that does not recognize their marriage. These rules apply to income taxes, estate and gift taxes and payroll taxes related to employee benefits.

As a result, beginning with the 2013 tax year, legally married same-sex couples can no longer claim “unmarried” status on their federal tax returns. Instead, they must file joint or separate returns as married taxpayers.

For prior tax years that are still open (generally 2010, 2011 and 2012), legally married same-sex couples can file amended joint or separate returns claiming “married” status, but they are not required to do so. Couples who have not yet filed their 2012 returns have until September 15 to file as unmarried; beginning on September 16, they will have to file as married. The IRS will not recognize other state-recognized unions, such as domestic partnerships, as marriages for federal tax purposes, even if the couple is allowed to file a joint state tax return.


Click here to download the PDF.

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If you have any questions about the IRS’s guidance regarding any of the post-DOMA issues, please contact your Brown Smith Wallace Tax Advisor or Kevin Boeving, CPA, at 314.983.5225

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