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Gay Couples Risk Paying More Taxes As They Wait For IRS' Guidance

6a00d8341c730253ef014e86440e22970d-800wiThe many questions regarding tax returns and federal benefits that gay couples across the country were faced with in the wake of the US Supreme Court's gutting of Section 3 of DOMA have continued to linger despite a promise from the IRS in June that it would “move swiftly to provide revised guidance in the near future." Bloomberg news reports that couples are still waiting for the IRS' guidance on how to tackle a myriad of issues including tax refunds, health insurance, and joint accounts, among others:

After years of fighting for equal tax-and-benefit treatment, married couples now await guidance on how the Internal Revenue Service and federal agencies will implement the ruling. Without it, those who file for tax refunds may end up paying more, not less.

Married couples in states that don’t recognize gay marriage and those who delayed filing their 2012 returns in anticipation of the court’s decision in June are pressing for clarity. Spouses computing whether to seek refunds from prior returns see the three-year statute of limitations for amendments closing as they look to the IRS for details.

“We are desperately awaiting that guidance,” said Shari Levitan, chairwoman of the New England private wealth services group at Holland & Knight LLP in Boston. “The major question for clients is for returns that are still open, and even those that are beyond the statute of limitations, can they be amended?”

Without IRS guidance, couples who extended their 2012 return deadline to Oct. 15 and who live in a state that doesn’t recognize their marriage will probably file their federal returns jointly and disclose they are doing so based on the court’s decision, Levitan said. She serves high-net-worth clients, about 10 percent of them same-sex couples.

“That’s a risk,” because the IRS could deem they filed incorrectly, she said.

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  1. Something for couples to consider is "protective amendments" which our CPA firm does all the time for civil union couples in our state.

    It's true that taxes are closed after three years after the due date and you can no longer go back and amend (so 2009 is closed now). But you can protect against that limitation.

    Couples who were married in 2010 or 2011 should file a protective amendment and give as an explanation the pending DOMA decision outcome. The IRS won't process the amendment, but it keeps the year open and protects it from the three-year rule. Once DOMA is decided in favor either with the IRS guidance or a later court ruling, the amended returns are there as a placeholder.

    Posted by: Derek | Aug 16, 2013 6:08:08 PM


  2. Backfire! "And that why I married him!"

    Posted by: MC | Aug 16, 2013 6:45:39 PM


  3. MC, incoherent, as usual.

    Posted by: Pookie | Aug 17, 2013 3:06:46 AM


  4. We've been paying more taxes than was ever fair or equitable for a long time now. Taxes used to oppress us, fund a ongoing campaign to essentially murder us, and nobody has ever talked about some sort of reparations owed.

    Yeah, I'm saying it. We're owed, and owed bigtime, for being forced to subsidize our own oppression for decades.

    Posted by: JustSayin | Aug 17, 2013 4:27:54 PM


  5. Tax attorneys must be licking their chops at the likely new business coming their way in representing gay spouses in federal and state tax courts due to the lack of certain guidance by the federal IRS, left purposely ambiguous, in my view. And, in states with income tax filing requirements and no marriage equality which have instructions specific to federal income tax reporting, it's going to be a muddled mess. Hold on to your wallets!

    Posted by: Koskalaka Maricón | Aug 18, 2013 11:41:31 AM


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