DOMA RULING POTENTIAL TAX IMPACT

The Supreme Court’s Ruling in the Defense of Marriage Act (DOMA) Same-Sex Marriage Rights Case impact planning.

Background

On June 26, 2013, the U.S. Supreme Court ruled on a landmark case related to same-sex marriage (SSM) (United States v. Windsor). The 5-4 decision increases the federal tax (and non-tax) benefits available to married same-sex couples.  The ruling affords same-sex couples, who are married and reside in a state which recognizes same-sex marriages, with the same federal rights and obligations (including tax benefits and rules) as heterosexual married couples.  As discussed further at the end of this letter, there are many remaining issues that need to be clarified, including if and how the right to federal benefits will be protected when a couple marries in a state where same-sex marriage is legal, then moves to a state where the marriage is not recognized.  For many of the possible impacts of this ruling mentioned below in this letter, it may depend on how the federal government interprets the decision and modifies the rules.  The IRS is already working on clarifying guidance, so we expect to know more details in the coming months. 

Same-sex couples who have not been legally married are unaffected by this ruling until their marital status is legally changed according to state or foreign country law.

The case has broad federal tax planning and compliance implications.  This letter will provide:

• An overview of the Supreme Court’s decision and what it may mean for you;
• Considerations with respect to estate, retirement, income tax, and health and welfare benefits plans; and
• Actions to consider with respect to long term planning and tax return preparation.

Tax Implications

Tax benefits that may now be available to and issues facing legally married same-sex couples include:

• Joint filing of federal income tax returns
• Amending of prior tax returns
• Filing of protective refund claims
• Pre-tax basis of employer-provided health-care benefits
• Deductible and includable alimony
• Income tax-free transfers between spouses
• Lifetime gift tax-free property transfers to spouses
• Estate tax relief for surviving spouses
• Spousal IRA contributions, rollovers, required minimum distributions

Filing of Tax Returns

Following the decision, same-sex couples that the federal tax law now recognizes as married may have the option or even be required to use married filing joint or married filing separate filing status.  Filing joint returns may also allow married same-sex couples to exclude up to $500,000 of gain from gross income on the sale of a principal residence, as opposed to $250,000 for unmarried individuals.  Married same-sex couples with foreign assets may want to reconsider their foreign information reporting requirements as filing thresholds for a married couple are often lower than the combined filing thresholds for two unmarried individuals and constructive ownership rules apply to spouses.

Amending of Tax Returns

Consideration should be given to amending federal income tax returns and gift and estate tax returns (for years that are still open under the tax law’s statute of limitations) to change marital and filing status and other information that will alter the tax calculations and potentially result in a lower tax liability.  State tax implications also should be reviewed.  Returns may be amended to correct filing status, dependents, income, deductions, or tax credits.  Couples may want to estimate the income tax liability that would have been due in previous years if the couple had been able file a joint return.  Even basic items are impacted, such as standard deductions, child-related tax credits, and phase-outs of certain benefits, such as the education expense deduction.  Another example of a tax change is where one spouse could have had capital losses on investments in prior years that the other spouse’s gains would offset if they could have filed joint federal returns.  However, the “marriage penalty” could be applicable for some couples and the married filing joint or married filing separate filing status may result in a higher tax liability, especially high-earning couples where both spouses are working.  Each situation will need to be reviewed carefully.

Amending returns most likely means that both spouses need to amend.  It is likely that one spouse will owe taxes (and interest) and the other will receive a refund.  Upcoming IRS guidance may indicate how these returns are to be filed, such as with some explanation or filed together.  IRS guidance may indicate whether amended returns are required or optional.

Filing of Protective Refund Claims

If the right to a refund is contingent on future events (including issuance of guidance by the IRS) and is not determinable until after the time period for amending returns expires, a taxpayer can file a protective claim for refund.  The claim is often based on current litigation (constitutionality); expected changes in tax law; changes in legislation, or regulations. A protective claim preserves the right to claim a refund when the contingency is resolved.  Generally, the IRS allows taxpayers to amend returns for up to three years after the filing deadline or up to two years after the taxes are paid.  Some couples may have more time if they filed protective claims for previous tax years that would give them an extension for amending returns.  If the statute is soon expiring on an extended return or estate tax return, we should discuss immediately the possibility of filing a protective refund claim, even if the forthcoming IRS guidance is not yet issued.

 Excludable Employer-Provided Fringe Benefits

Employer-provided fringe benefits used by the same-sex spouse of an employee should also be excludable from gross income.  Now that taxes should no longer be a factor, some couples may want to re-evaluate their health insurance choices. One spouse may now be able to move onto the other’s more generous plan, which may also be more affordable. 

Also, even if not changing health plans, some couples may be able to file an amended return to collect the taxes they may have paid on those benefits in previous years.  Consideration should be given to claiming refunds of overpaid income and payroll taxes based on previous denial of tax-free extensions of employer-provided medical and dental benefits.

Adoption Credit

Some couples may want to consider any adoption tax credit and whether a change in federal filing status will have an impact on the credit.

Deductible and Includable Alimony

Married same-sex couples who later divorce should be able to take a deduction for alimony, which would be includable in the income of the recipient.

Income Tax-Free Transfers of Property Between Spouses

In addition, gain or loss should not be recognized on the transfer of property between same-sex spouses or between former spouses incident to a divorce. 

Gift and Estate-Tax Free Transfers/Unlimited Marital Deduction

 Married same-sex couples should be able to claim the unlimited marital deduction for federal estate and gift tax purposes, allowing a spouse to transfer an unrestricted amount of assets to his or her spouse at any time, including at the death of the transferor, free from gift and estate tax. The unlimited marital deduction is considered an estate preservation tool because assets can be distributed to surviving spouses without incurring estate or gift tax liabilities.  Some couples that set up trusts to avoid double taxation on assets being passed along to their partners may find that a trust is no longer necessary now that assets can be passed directly to a spouse tax-free.  Others may want to update their trusts to give their spouses tax-free access to the trust’s income or principal, an option this is now available to married same-sex couples.

In addition, married same-sex couples should be able to elect to split gifts in order to take advantage of a doubled annual gift tax exclusion ($14,000 for 2013, for a total tax-free gift of $28,000). The ruling could also make it possible for married same-sex couples to share assets without being subject to gift taxes.  For example, prior to the ruling, couples that owned a house together but did not equally split mortgage payments and other expenses may have had those expenses covered by one spouse be subject to gift taxes if they exceeded $14,000 annually.  Now that those marriages are recognized by the federal government, some married same-sex couples may feel more comfortable adding spouses name to the property title, knowing that they have more flexibility on how they choose to split those expenses and with no gift tax implications.

 Portability of Unused Estate Tax Exemption Amount

The American Taxpayer Relief Act of 2012 extended permanently the concept of portability, which generally allows the estate of a surviving spouse to utilize the unused portion of the estate tax applicable exclusion amount ($5.1 million in 2012, and $5.25 million in 2013) of his or her last predeceased spouse.  Now, the surviving spouse of a married same-sex couple should be able to take advantage of portability of the unused estate tax exemption amount of their deceased spouse.

 Related Party Rules

Same- sex married couples who are now considered married for federal income and gift and estate purposes are subject to related party rules.  This could impact the tax consequences of transactions between same-sex spouses.  Prior to this ruling, married same-sex couples were treated for tax purposes as not related for certain transactions such as selling property between them and recognizing a loss.  After this ruling, recognition of this same loss would not be allowed under the related party rules.

Spousal IRA Contributions, Rollovers, and Required Minimum Distribution

Married same-sex couples now have many more retirement plan options and issues to consider, including spousal IRAs, contributions, beneficiary designations, rollovers, and required minimum distribution (RMD) rules.  Married ame-sex couples with the only beneficiary a spouse who is more than 10 years younger can now use the joint table rather than the “uniform table” for distributions.  A surviving spouse can now consider whether to make a spousal rollover of a deceased spouse’s IRA or 401(k).

Other Federal Benefits

In addition, below are some of the federal benefits or protections that may now be available to legally married same-sex couples:

• Social Security, Medicare, and Medicaid  benefits
• Certain veterans benefits, such as pensions and survivor’s benefits
• Military spousal benefits
• Family medical leave rights
• Spousal visas for foreign national spouses
• Private pension benefit options (e.g., survivor annuities)
• Application of the thresholds for the tax penalties and health insurance subsidies available under the Patient Protection and Affordable Care Act

Income and Estate and Gift Tax Planning Issues

Some of the specific individual income tax and estate and gift tax planning issues that may be impacted and should be considered are:

•          Income Tax Planning Issues
  • Joint tax returns
  • Amended income tax returns
  • Income tax returns beyond the statute of limitations
  • Rollover IRAs at death
  • Spousal IRA contributions and rollovers
  • IRA required minimum distributions
  • Divorce tax issues
  • Application of the adoption tax credit
• Estate & Gift Tax Planning
  • Updated estate plans and documents
  • Inter vivos Gifts
  • Amended gift tax returns
  • Gift and estate tax returns beyond the statute of limitations
  • Portability of unused applicable lifetime exemption
  • Grantor trusts
  • Spousal rollover
  • Beneficiary designations
  • Retirement plans
  • Community property rules
  • Marital Agreements

IRS Guidance Expected Soon

The Supreme Court’s DOMA ruling means that married same-sex couples are entitled to the same federal benefits as heterosexual couples, but it does not necessarily make financial planning and tax compliance for married same-sex couples less complicated.  Even though federal benefits are immediately extended, it may take some time to fully implement the Supreme Court’s decision.  Marriage is the “trigger” for more than 1,000 tax and benefit provisions in the Tax Code and other statutory provisions.

Federal government agencies, including the Treasury Department and Internal Revenue Service, will need to review and modify rules and regulations.  Employers will need to review and revise their policies and procedures regarding benefits and withholding.  Married same-sex couples will need to consider the new rules and policies, including their tax situation.  Affected couples should consider updating their estate plans based upon the estate and gift tax impact, as well as their financial plans.

One tax issue to be addressed is the reality that at least 30 tax rules use the term “husband and wife” rather than married couple or spouses.  Another issue to resolve is whether the federal tax law treats a couple as married based on the law of the state of celebration (where the marriage was performed) or the state of domicile (where the couple resides).  The answers may not be the same for the federal tax law and Social Security law. This may be a matter that Congress may need to address rather than the IRS.

There may be some state tax issues to address as well.  For example, federal employees may be entitled to certain benefits that others are not, and states likely will need to clarify what the state tax treatment is if the state does not recognize same-sex marriage.  Also, if the federal tax law uses the state of celebration to determine if a married same-sex couple is married and the state of domicile does not respect that, the state will need to provide guidance on how to convert the federal joint return to separate state returns.

The day after the ruling, on June 27, 2013, IRS issued a statement that it will “move swiftly to provide revised guidance in the near future,” so we will keep you informed when such guidance is issued and what you should consider doing based on that guidance. We expect that various IRS publications and website information that provide guidance to married individuals will likely be revised.

It may take longer than expected for the IRS to respond.  The IRS has been given increased responsabilities and the congressional  budget process reduced their funding.  With reduced staff and training any resources they devote to these matter will reduce  their ability to administer the tax laws that Congress has passed.
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