Earlier today the IRS announced in Rev. Rul. 2013-72 that it will recognize all same-sex spouses as married for federal tax purposes so long as the marriage was legal in the place that it occurred. I’ve been calling this the “place of celebration” rule as opposed to the “place of domicile” rule. It is not a big surprise that the IRS has taken this position since every federal agency that has been free to do so (i.e., is not constrained by statute) has also adopted “place of celebration” as the operative rule.

This means that any same-sex couple that enters into a valid same-sex marriage in California or Washington or DC or any of the places that authorize such marriages will be married for federal tax purposes even if they are living in non-recognition states like Virginia or Texas or Georgia. Of course, taxpayers from Virginia and Texas and Georgia should consider one thing before rushing to another state to marry. What will happen if the couple one day wants to divorce? That is not possible in Virginia, Texas, and Georgia. But some marriage equality jurisdictions (California and DC among them) will retain jurisdiction over marriages entered into within their borders for purposes of granting a future divorce even if the couple is domiciled elsewhere. All the couple must show is that the state of domicile will not grant the divorce. So when marrying for tax purposes, choose the place of celebration for possible divorce purposes.

The IRS further announced that Registered Domestic Partners (RDPs) and Civil Union Partners (CUPs) will NOT be treated as spouses. Again, this is not surprising because it is exactly the rule announced by OPM and other agencies — although, for the record, ┬áit is possible, because of some specific statutory language, that RDPs and CUPs WILL be treated as spouses under Social Security rules.

For any0ne in a same-sex marriage who has not filed a return for 2012 and is trying to decide whether it is better to file as two single taxpayers or jointly as a married couple, that decision needs to be made by September 16. After that time, the couple will have no choice. They must file either jointly or married filing separately.

For more information, the IRS has released an FAQ document on its website. See http://www.irs.gov/uac/Answers-to-Frequently-Asked-Questions-for-Same-Sex-Married-Couples

 

 

 

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