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Can You Refile Your Taxes

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Can You Refile Your Taxes

Can you refile your taxes Index A Acknowledgment of contributions, Acknowledgment of Charitable Contributions of $250 or More Adverse determination, Adverse determination. Can you refile your taxes Affordable Care Act Hospitals, What's New, New Requirements for section 501(c)(3) Hospitals Under the Affordable Care Act. Can you refile your taxes Aged, home for, Home for the aged. Can you refile your taxes Agricultural organization, Agricultural and Horticultural Organizations Airport, Other organizations. Can you refile your taxes Alumni association, Alumni association. Can you refile your taxes Amateur athletic organizations, Amateur Athletic Organizations Animals, prevention of cruelty to, Prevention of Cruelty to Children or Animals Appeal procedures, Appeal Procedures Application procedures, Application Procedures, Required Inclusions Bylaws, Bylaws. Can you refile your taxes Conformed copy, Conformed copy. Can you refile your taxes Description of activities, Description of activities. Can you refile your taxes Employer identification number, Required Inclusions Financial data, Financial data. Can you refile your taxes Organizing documents, Organizing documents. Can you refile your taxes Aquatic resources, Agricultural and Horticultural Organizations Articles of organization, Articles of Organization Assistance (see Tax help) Athletic organization, Athletic organization. Can you refile your taxes , Amateur Athletic Organizations Attorney's fees, Acceptance of attorneys' fees. Can you refile your taxes Attribution, special rules, Special rules of attribution. Can you refile your taxes B Black lung benefit trust, 501(c)(21) - Black Lung Benefit Trusts Board of trade, Board of trade. Can you refile your taxes Bureau defined, Bureau defined. Can you refile your taxes Burial benefit insurance, Burial and funeral benefit insurance organization. Can you refile your taxes Business income, unrelated, Unrelated Business Income Tax Return Business league, 501(c)(6) - Business Leagues, etc. Can you refile your taxes C Cemetery company, 501(c)(13) - Cemetery Companies Chamber of commerce, Chamber of commerce. Can you refile your taxes Change in legal structure, Organizational Changes and Exempt Status Charitable contributions, Acknowledgment of Charitable Contributions of $250 or More, Contributions to 501(c)(3) Organizations Charitable organization, Section 501(c)(3) Organizations, Charitable Organizations Charitable risk pools, Charitable Risk Pools Child care organization, Child care organizations. Can you refile your taxes Children, prevention of cruelty to, Prevention of Cruelty to Children or Animals Church, Churches. Can you refile your taxes Integrated auxiliaries, Integrated auxiliaries. Can you refile your taxes Civic leagues, 501(c)(4) - Civic Leagues and Social Welfare Organizations Clinic, Clinic. Can you refile your taxes CO-OP Health Insurance Issuers, 501(c)(29) - CO-OP Health Insurance Issuers College bookstore, restaurant, College book stores, cafeterias, restaurants, etc. Can you refile your taxes Comments, Comments and suggestions. Can you refile your taxes Community association, Other organizations. Can you refile your taxes Community nursing bureau, Community nursing bureau. Can you refile your taxes Community trust, Community Trusts Contributions, charitable, Acknowledgment of Charitable Contributions of $250 or More, Contributions to 501(c)(3) Organizations Court appeals, Appeal to Courts Credit union, 501(c)(14) - Credit Unions and Other Mutual Financial Organizations D Determination letter, Rulings and Determination Letters Disclosures, required, Disclosure of Quid Pro Quo Contributions Dues used for lobbying, Dues Used for Lobbying or Political Activities Nondeductible contributions, Solicitation of Nondeductible Contributions Quid pro quo contributions, Disclosure of Quid Pro Quo Contributions Services available from government, Penalties. Can you refile your taxes Dispositions of donated property, Donee Information Return Disqualified persons, Disqualified persons. Can you refile your taxes Domestic fraternal society, Domestic Fraternal Societies (501(c)(10)) Donor advised funds Excess benefit transaction, Donor advised fund transactions occurring after August 17, 2006. Can you refile your taxes Dues used for political or legislative activities, Dues Used for Lobbying or Political Activities, Deduction not allowed for dues used for political or legislative activities. Can you refile your taxes E Educational organizations, Educational Organizations, Educational organizations. Can you refile your taxes Employees' association, 501(c)(4), 501(c)(9), and 501(c)(17) - Employees' Associations Employment taxes, Employment Tax Returns Endowment fund, Endowment funds. Can you refile your taxes Estimated tax, Estimated tax. Can you refile your taxes Excess benefit transaction, Excess Benefit Transaction, Supporting organization transactions occurring after July 25, 2006. Can you refile your taxes Disqualified person, Tax on Disqualified Persons, Disqualified Person Controlled entity, 35%, 35% controlled entity. Can you refile your taxes Family members, Family members. Can you refile your taxes Substantial influence, Persons not considered to have substantial influence. Can you refile your taxes Disregarded benefits, Disregarded benefits. Can you refile your taxes Donor advised funds, Donor advised fund transactions occurring after August 17, 2006. Can you refile your taxes , Exception. Can you refile your taxes Excise tax, Excise tax on excess benefit transactions. Can you refile your taxes Initial contracts, Special Exception for Initial Contracts Reasonable compensation, Reasonable Compensation. Can you refile your taxes Rebuttable presumption, Rebuttable presumption that a transaction is not an excess benefit transaction. Can you refile your taxes Excise tax Black lung benefit trust, Excise taxes. Can you refile your taxes Lobbying expenditures, Tax on excess expenditures to influence legislation. Can you refile your taxes , Tax on disqualifying lobbying expenditures. Can you refile your taxes Political expenditures, Excise taxes on political expenditures. Can you refile your taxes Private foundations, Excise taxes on private foundations. Can you refile your taxes , Excise Taxes on Private Foundations Exempt function, Political Organization Income Tax Return Exempt purposes, Section 501(c)(3) Organizations Exemption for terrorist organization, Non-exemption for terrorist organizations. Can you refile your taxes Extensions of time, Extensions of time for filing. Can you refile your taxes F Facts and circumstances test, Facts and circumstances test. Can you refile your taxes Fair market value, estimate of, Good faith estimate of fair market value (FMV). Can you refile your taxes Filing requirements, Annual Information Returns Annual information returns, Annual Information Returns Donee information return, Donee Information Return Due date, Political Organization Income Tax Return Employment tax, Employment Tax Returns Excise tax, Excise taxes on private foundations. Can you refile your taxes , Excise Taxes on Private Foundations Political organization, Political Organization Income Tax Return Private foundations, Form 990-PF Unrelated business income, Unrelated Business Income Tax Return Form 990-N, Annual Electronic Filing Requirement for Small Tax-Exempt Organizations Forms, Forms Required 1023, Forms Required, Administrative Remedies, 270-day period. Can you refile your taxes , Information required for subordinate organizations. Can you refile your taxes , Annual Information Return, Form 1023. Can you refile your taxes , Organizations Not Required To File Form 1023, Private Schools, When to file application. Can you refile your taxes , Lobbying Expenditures, Volunteer fire companies. Can you refile your taxes 1024, Forms Required, Application made under wrong paragraph of section 501(c). Can you refile your taxes , Annual Information Return, 501(c)(4) - Civic Leagues and Social Welfare Organizations, 501(c)(6) - Business Leagues, etc. Can you refile your taxes , 501(c)(7) - Social and Recreation Clubs, 501(c)(8) and 501(c)(10) - Fraternal Beneficiary Societies and Domestic Fraternal Societies, Fraternal Beneficiary Societies (501(c)(8)), Domestic Fraternal Societies (501(c)(10)), Local Employees' Associations (501(c)(4)), Voluntary Employees' Beneficiary Associations (501(c)(9)), Supplemental Unemployment Benefit Trusts (501(c)(17)), 501(c)(13) - Cemetery Companies, 501(c)(19) - Veterans' Organizations, 501(c)(20) - Group Legal Services Plan Organizations, 501(c)(2) - Title-Holding Corporations for Single Parent Corporations, 501(c)(25) - Title-Holding Corporations or Trusts for Multiple Parent Corporations 1040, Effect on employees. Can you refile your taxes 1065, Annual Information Returns 1120–POL, Political Organization Income Tax Return 1128, Central organizations. Can you refile your taxes 2848, Power of attorney. Can you refile your taxes , Representation. Can you refile your taxes 4720, Tax on excess expenditures to influence legislation. Can you refile your taxes 5578, Certification. Can you refile your taxes 5768, Making the election. Can you refile your taxes 6069, Tax treatment of donations. Can you refile your taxes 8274, FICA tax exemption election. Can you refile your taxes 8282, Dispositions of donated property. Can you refile your taxes 8283, Form 8283. Can you refile your taxes 8300, Report of Cash Received 8718, Forms Required, Power of attorney. Can you refile your taxes 8821, Representation. Can you refile your taxes 8871, Reporting Requirements for a Political Organization, Annual Information Return 8872, Reporting Requirements for a Political Organization, Annual Information Return 990, Keeping the Group Exemption Letter in Force, Forms 990 and 990-EZ, Annual Information Return, Making the election. Can you refile your taxes 990-BL, Annual Information Returns, 990-EZ, Forms 990 and 990-EZ, Form 990-EZ. Can you refile your taxes 990-PF, Form 990-PF, Excise taxes on private foundations. Can you refile your taxes , Excise Taxes on Private Foundations 990-T, Unrelated Business Income Tax Return SS-4, Required Inclusions, Employer identification number. Can you refile your taxes W–2, Revoking the election. Can you refile your taxes Fraternal beneficiary society, Fraternal Beneficiary Societies (501(c)(8)) Fraternal societies, Organizations subject to requirements. Can you refile your taxes , 501(c)(8) and 501(c)(10) - Fraternal Beneficiary Societies and Domestic Fraternal Societies Free tax services, Free help with your tax return. Can you refile your taxes Funeral benefit insurance, Burial and funeral benefit insurance organization. Can you refile your taxes G Gifts and contributions, public charity, Gifts, contributions, and grants distinguished from gross receipts. Can you refile your taxes Good faith determinations, What's New, New organization. Can you refile your taxes Governmental unit, Governmental units. Can you refile your taxes Grant Distinguished from gross receipts, Grants. Can you refile your taxes Exclusion for unusual grant, Unusual grants. Can you refile your taxes , Unusual grants. Can you refile your taxes From public charity, Grants from public charities. Can you refile your taxes , Grants from public charities. Can you refile your taxes Grantor and contributor, reliance on ruling, Reliance by grantors and contributors. Can you refile your taxes Gross receipts from nonmembership sources, Gross receipts from nonmembership sources. Can you refile your taxes Group exemption letter, Group Exemption Letter H Health coverage organization, 501(c)(26) - State-Sponsored High-Risk Health Coverage Organizations Help (see Tax help) High-risk health coverage organization, 501(c)(26) - State-Sponsored High-Risk Health Coverage Organizations Home for the aged, Home for the aged. Can you refile your taxes Homeowners' association, Homeowners' associations. Can you refile your taxes Horticultural organization, Agricultural and Horticultural Organizations Hospital, Hospital. Can you refile your taxes , Hospitals and medical research organizations. Can you refile your taxes I Inactive organization, Organizational Changes and Exempt Status Industrial development, Other organizations. Can you refile your taxes Instrumentalities, Instrumentalities. Can you refile your taxes Insurance, organizations providing, Organizations Providing Insurance L Labor organization, Organizations subject to requirements. Can you refile your taxes , Labor Organizations Law, public interest, Public-interest law firms. Can you refile your taxes Legislative activity, Lobbying Expenditures, Legislative activity. Can you refile your taxes Listed transaction, Prohibited tax shelter transaction. Can you refile your taxes Literary organizations, Literary Organizations Loans, organizations providing, Organization providing loans. Can you refile your taxes Lobbying expenditures, Lobbying Expenditures Local benevolent life insurance associations, Local Life Insurance Associations Local employees' association, Local Employees' Associations (501(c)(4)) Lodge system, Lodge system. Can you refile your taxes M Medical research organization, Medical research organization. Can you refile your taxes Medicare and Medicaid payments, Medicare and Medicaid payments. Can you refile your taxes Membership fee, Membership fees. Can you refile your taxes , Membership fees distinguished from gross receipts. Can you refile your taxes Modification of exemption, Revocation or Modification of Exemption Mutual financial organization, 501(c)(14) - Credit Unions and Other Mutual Financial Organizations Mutual or cooperative association, Mutual or Cooperative Associations N Nursing bureau, Community nursing bureau. Can you refile your taxes O One-third support test, One-third support test. Can you refile your taxes Organization assets, Dedication and Distribution of Assets Dedication, Dedication. Can you refile your taxes Distribution, Distribution. Can you refile your taxes Organizational changes, Organizational Changes and Exempt Status P Penalties, Penalties for failure to file. Can you refile your taxes Failure to allow public inspection, Penalties Failure to disclose, Penalty for failure to disclose. Can you refile your taxes , Penalties. Can you refile your taxes , Penalty. Can you refile your taxes Failure to file, Penalties for failure to file. Can you refile your taxes Perpetual care organization, Perpetual care organization. Can you refile your taxes Political activity, Dues Used for Lobbying or Political Activities, Political activity. Can you refile your taxes , Political activity. Can you refile your taxes Political organization Income tax return, Political Organization Income Tax Return Taxable income, Political Organization Income Tax Return Power of attorney, Power of attorney. Can you refile your taxes Preferred stock, Common and preferred stock. Can you refile your taxes Prevention of cruelty to children or animals, Prevention of Cruelty to Children or Animals Private delivery service, Private delivery service. Can you refile your taxes Private foundations, Private Foundations Private operating foundation, Private Operating Foundations Private school, Private Schools, Racially Nondiscriminatory Policy Prohibited tax shelter transactions Entity managers, Entity manager. Can you refile your taxes Entity managers excise tax, Manager Level Tax Listed transaction, Prohibited tax shelter transaction. Can you refile your taxes Prohibited reportable transactions, Prohibited tax shelter transaction. Can you refile your taxes Subsequently listed transaction, Subsequently listed transaction. Can you refile your taxes Tax-exempt entities, Tax-exempt entities. Can you refile your taxes Public charity Gifts and contributions, Gifts, contributions, and grants distinguished from gross receipts. Can you refile your taxes Grant from, Grants from public charities. Can you refile your taxes Section 509(a)(1), Section 509(a)(1) Organizations Section 509(a)(2), Section 509(a)(2) Organizations Section 509(a)(3), Section 509(a)(3) Organizations Section 509(a)(4), Section 509(a)(4) Organizations Support test, One-third support test. Can you refile your taxes , One-third support test. Can you refile your taxes Public inspection Annual return, Annual Information Return Exemption applications, Public Inspection of Exemption Applications, Annual Returns, and Political Organization Reporting Forms Forms 8871 and 8872, Public Inspection of Exemption Applications, Annual Returns, and Political Organization Reporting Forms Public-interest law firm, Public-interest law firms. Can you refile your taxes Publications (see Tax help) Publicly supported organization, Publicly supported organizations. Can you refile your taxes , Qualifying as Publicly Supported Attraction of public support, Attraction of public support requirement. Can you refile your taxes Ten-percent-of-support, Ten-percent-of-support requirement. Can you refile your taxes R Racial composition, How to determine racial composition. Can you refile your taxes Racially nondiscriminatory policy, Racially Nondiscriminatory Policy Real estate board, Real estate board. Can you refile your taxes Recognition of exemption, application, Application for Recognition of Exemption Religious organizations, Religious Organizations Requests other than applications, Miscellaneous Procedures Responsiveness test, Responsiveness test. Can you refile your taxes Revocation of exemption, Revocation or Modification of Exemption Ruling letter, Rulings and Determination Letters S Scholarship Private school, Scholarship and loan programs. Can you refile your taxes Scholarships, Scholarships. Can you refile your taxes School, private, Private Schools Scientific organizations, Scientific Organizations Section 501(c)(3) organizations Amateur athletic, Amateur Athletic Organizations Literary, Literary Organizations Prevention of cruelty, Prevention of Cruelty to Children or Animals Private foundations, Private Foundations and Public Charities Public charities, Public Charities Qualifications, Section 501(c)(3) Organizations Religious, Religious Organizations Scientific, Scientific Organizations Section 501(c)(3) Organizations Charitable, Charitable Organizations Educational, Educational Organizations and Private Schools Single entity, Single entity. Can you refile your taxes Social clubs, Organizations subject to requirements. Can you refile your taxes , 501(c)(7) - Social and Recreation Clubs Social welfare organization, Organizations subject to requirements. Can you refile your taxes , 501(c)(4) - Civic Leagues and Social Welfare Organizations Specified organizations, Specified organizations. Can you refile your taxes Sports organization, amateur, Qualified amateur sports organization. Can you refile your taxes State-sponsored, 501(c)(26) - State-Sponsored High-Risk Health Coverage Organizations High-risk health coverage organization, 501(c)(26) - State-Sponsored High-Risk Health Coverage Organizations Workers' compensation reinsurance organization, 501(c)(27) - Qualified State-Sponsored Workers' Compensation Organizations Stock or commodity exchange, Stock or commodity exchange. Can you refile your taxes Suggestions, Comments and suggestions. Can you refile your taxes Supplemental unemployment benefit trust, Supplemental Unemployment Benefit Trusts (501(c)(17)) Support, Support. Can you refile your taxes , Support from a governmental unit. Can you refile your taxes , Support from the general public. Can you refile your taxes Support test, One-third support test. Can you refile your taxes Facts and circumstances, Facts and circumstances test. Can you refile your taxes One-third, One-third support test. Can you refile your taxes Public charity, One-third support test. Can you refile your taxes Supporting organization, Supporting organization transactions occurring after July 25, 2006. Can you refile your taxes T Tax help, Technical advice, Appeals Office Consideration Testing for public safety, Section 509(a)(4) Organizations Title-holding corporation, 501(c)(2) - Title-Holding Corporations for Single Parent Corporations U Unemployment benefit trust, Supplemental Unemployment Benefit Trusts (501(c)(17)) Unrelated business income, Unrelated Business Income Tax Return Unusual grants, Unusual grants. Can you refile your taxes , Unusual grants. Can you refile your taxes User fee, Power of attorney. Can you refile your taxes , User fee. Can you refile your taxes V Veterans' organization, 501(c)(19) - Veterans' Organizations Voluntary employees' beneficiary association, Voluntary Employees' Beneficiary Associations (501(c)(9)) Volunteer fire company, Volunteer fire companies. Can you refile your taxes W War veterans' organization, 501(c)(19) - Veterans' Organizations Withdrawal of application, Withdrawal of application. Can you refile your taxes Withholding information from public, Requests for withholding of information from the public. Can you refile your taxes Work Opportunity Tax Credit, Expanded Work Opportunity Tax Credit Available for Hiring Qualified Veterans. Can you refile your taxes Workers' compensation reinsurance organization, 501(c)(27) - Qualified State-Sponsored Workers' Compensation Organizations Prev  Up     Home   More Online Publications
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Answers to Frequently Asked Questions for Individuals of the Same Sex Who Are Married Under State Law

The following questions and answers provide information to individuals of the same sex who are lawfully married (same-sex spouses). These questions and answers reflect the holdings in Revenue Ruling 2013-17 in 2013-38 IRB 201.

Q1. When are individuals of the same sex lawfully married for federal tax purposes?

A1. For federal tax purposes, the IRS looks to state or foreign law to determine whether individuals are married. The IRS has a general rule recognizing a marriage of same-sex spouses that was validly entered into in a domestic or foreign jurisdiction whose laws authorize the marriage of two individuals of the same sex even if the married couple resides in a domestic or foreign jurisdiction that does not recognize the validity of same-sex marriages.

Q2. Can same-sex spouses file federal tax returns using a married filing jointly or married filing separately status?

A2. Yes. For tax year 2013 and going forward, same-sex spouses generally must file using a married filing separately or jointly filing status. For tax year 2012 and all prior years, same-sex spouses who file an original tax return on or after Sept. 16, 2013 (the effective date of Rev. Rul. 2013-17), generally must file using a married filing separately or jointly filing status. For tax year 2012, same-sex spouses who filed their tax return before Sept. 16, 2013, may choose (but are not required) to amend their federal tax returns to file using married filing separately or jointly filing status. For tax years 2011 and earlier, same-sex spouses who filed their tax returns timely may choose (but are not required) to amend their federal tax returns to file using married filing separately or jointly filing status provided the period of limitations for amending the return has not expired. A taxpayer generally may file a claim for refund for three years from the date the return was filed or two years from the date the tax was paid, whichever is later. For information on filing an amended return, go to Tax Topic 308, Amended Returns, at http://www.irs.gov/taxtopics/tc308.html

Q3. Can a taxpayer and his or her same-sex spouse file a joint return if they were married in a state that recognizes same-sex marriages but they live in a state that does not recognize their marriage?

A3. Yes. For federal tax purposes, the IRS has a general rule recognizing a marriage of same-sex individuals that was validly entered into in a domestic or foreign jurisdiction whose laws authorize the marriage of two individuals of the same sex even if the married couple resides in a domestic or foreign jurisdiction that does not recognize the validity of same-sex marriages. The rules for using a married filing jointly or married filing separately status described in Q&A #2 apply to these married individuals. 

Q4. Can a taxpayer’s same-sex spouse be a dependent of the taxpayer?

A4. No. A taxpayer’s spouse cannot be a dependent of the taxpayer.

Q5. Can a same-sex spouse file using head of household filing status?

A5. A taxpayer who is married cannot file using head of household filing status. However, a married taxpayer may be considered unmarried and may use the head-of-household filing status if the taxpayer lives apart from his or her spouse for the last 6 months of the taxable year and provides more than half the cost of maintaining a household that is the principal place of abode of the taxpayer’s dependent child for more than half of the year. See Publication 501 for more details.

Q6. If same-sex spouses (who file using the married filing separately status) have a child, which parent may claim the child as a dependent?

A6. If a child is a qualifying child under section 152(c) of both parents who are spouses (who file using the married filing separate status), either parent, but not both, may claim a dependency deduction for the qualifying child. If both parents claim a dependency deduction for the child on their income tax returns, the IRS will treat the child as the qualifying child of the parent with whom the child resides for the longer period of time during the taxable year. If the child resides with each parent for the same amount of time during the taxable year, the IRS will treat the child as the qualifying child of the parent with the higher adjusted gross income.   

Q7. Can a taxpayer who is married to a person of the same sex claim the standard deduction if the taxpayer’s spouse itemized deductions?

A7. No. If a taxpayer’s spouse itemized his or her deductions, the taxpayer cannot claim the standard deduction (section 63(c)(6)(A)).

Q8. If a taxpayer adopts the child of his or her same-sex spouse as a second parent or co-parent, may the taxpayer (“adopting parent”) claim the adoption credit for the qualifying adoption expenses he or she pays or incurs to adopt the child?

A8. No. The adopting parent may not claim an adoption credit. A taxpayer may not claim an adoption credit for expenses incurred in adopting the child of the taxpayer’s spouse (section 23). 

Q9. Do provisions of the federal tax law such as section 66 (treatment of community income) and section 469(i)(5) ($25,000 offset for passive activity losses for rental real estate activities) apply to same-sex spouses?

A9. Yes. Like other provisions of the federal tax law that apply to married taxpayers, section 66 and section 469(i)(5) apply to same-sex spouses because same-sex spouses are married for all federal tax purposes.

Q10. If an employer provided health coverage for an employee’s same-sex spouse and included the value of that coverage in the employee’s gross income, can the employee file an amended Form 1040 reflecting the employee’s status as a married individual to recover federal income tax paid on the value of the health coverage of the employee’s spouse?

A10. Yes, for all years for which the period of limitations for filing a claim for refund is open. Generally, a taxpayer may file a claim for refund for three years from the date the return was filed or two years from the date the tax was paid, whichever is later. If an employer provided health coverage for an employee’s same-sex spouse, the employee may claim a refund of income taxes paid on the value of coverage that would have been excluded from income had the employee’s spouse been recognized as the employee’s legal spouse for tax purposes. This claim for a refund generally would be made through the filing of an amended Form 1040. For information on filing an amended return, go to Tax Topic 308, Amended Returns, at http://www.irs.gov/taxtopics/tc308.html. For a discussion regarding refunds of Social Security and Medicare taxes, see Q&A #12 and Q&A #13.

Example. Employer sponsors a group health plan covering eligible employees and their dependents and spouses (including same-sex spouses). Fifty percent of the cost of health coverage elected by employees is paid by Employer. Employee A was married to same-sex Spouse B at all times during 2012. Employee A elected coverage for Spouse B through Employer’s group health plan beginning Jan. 1, 2012. The value of the employer-funded portion of Spouse B’s health coverage was $250 per month.

The amount in Box 1, “Wages, tips, other compensation,” of the 2012 Form W-2 provided by Employer to Employee A included $3,000 ($250 per month x 12 months) of income reflecting the value of employer-funded health coverage provided to Spouse B.  Employee A filed Form 1040 for the 2012 taxable year reflecting the Box 1 amount reported on Form W-2.

Employee A may file an amended Form 1040 for the 2012 taxable year excluding the value of Spouse B’s employer-funded health coverage ($3,000) from gross income.

Q11. If an employer sponsored a cafeteria plan that allowed employees to pay premiums for health coverage on a pre-tax basis, can a participating employee file an amended return to recover income taxes paid on premiums that the employee paid on an after-tax basis for the health coverage of the employee’s same-sex spouse?

A11. Yes, for all years for which the period of limitations for filing a claim for refund is open. Generally, a taxpayer may file a claim for refund for three years from the date the return was filed or two years from the date the tax was paid, whichever is later. If an employer sponsored a cafeteria plan under which an employee elected to pay for health coverage for the employee on a pre-tax basis, and if the employee purchased coverage on an after-tax basis for the employee’s same-sex spouse under the employer’s health plan, the employee may claim a refund of income taxes paid on the premiums for the coverage of the employee’s spouse. This claim for a refund generally would be made through the filing of an amended Form 1040. For information on filing an amended return, go to Tax Topic 308, Amended Returns, at http://www.irs.gov/taxtopics/tc308.html. For a discussion regarding refunds of Social Security and Medicare taxes, see Q&A #12 and Q&A #13.

Example. Employer sponsors a group health plan as part of a cafeteria plan with a calendar year plan year. The full cost of spousal and dependent coverage is paid by the employees. In the open enrollment period for the 2012 plan year, Employee C elected to purchase self-only health coverage through salary reduction under Employer’s cafeteria plan. On March 1, 2012, Employee C was married to same-sex spouse D. Employee C purchased health coverage for Spouse D through Employer’s group health plan beginning March 1, 2012. The premium paid by Employee C for Spouse D’s health coverage was $500 per month.

The amount in Box 1, “Wages, tips, other compensation,” of the 2012 Form W-2 provided by Employer to Employee C included the $5,000 ($500 per month x 10 months) of premiums paid by Employee C for Spouse D’s health coverage. Employee C filed Form 1040 for the 2012 taxable year reflecting the Box 1 amount reported on Form W-2.

Employee C’s salary reduction election is treated as including the value of the same-sex spousal coverage purchased for Spouse D. Employee C may file an amended Form 1040 for the 2012 taxable year excluding the premiums paid for Spouse D’s health coverage ($5,000) from gross income.

Q12. In the situations described in Q&A #10 and Q&A #11, may the employer claim a refund for the Social Security taxes and Medicare taxes paid on the benefits? 

A12. Yes. If the period of limitations for filing a claim for refund is open, the employer may claim a refund of, or make an adjustment for, any overpayment of Social Security taxes and Medicare taxes. The requirements for filing a claim for refund or for making an adjustment for an overpayment of the employer and employee portions of Social Security and Medicare taxes can be found in the Instructions for Form 941-X, Adjusted Employer’s QUARTERLY Federal Tax Return or Claim for Refund. Notice 2013-61 provides special administrative procedures for employers to file claims for refunds or make adjustments for overpayments of Social Security taxes and Medicare taxes paid on same-sex spouse benefits. 

Q13. In the situations described in Q&A #10 and Q&A #11, may the employer claim a refund or make an adjustment of income tax withholding that was withheld from the employee with respect to the benefits in prior years? 

A13. No. Claims for refund of overwithheld income tax for prior years cannot be made by employers. The employee may file for any refund of income tax due for prior years on Form 1040X, provided the period of limitations for claiming a refund has not expired. See Q&A #10 and Q&A #11.

Employers may make adjustments for income tax withholding that was overwithheld from an employee in the current year provided the employer has repaid or reimbursed the employee for the overwithheld income tax before the end of the calendar year.

Q14. If an employer cannot locate a former employee with a same-sex spouse who received the benefits described in Q&A #10 and Q&A #11, may the employer still claim a refund of the employer portion of the Social Security and Medicare taxes on the benefits?

A14. Yes, if the employer makes reasonable attempts to locate an employee who received the benefits described in Q&A #10 and Q&A #11 that were treated as wages but the employer is unable to locate the employee, the employer can claim a refund of the employer portion of Social Security and Medicare taxes, but not the employee portion. Also, if an employee is notified and given the opportunity to participate in the claim for refund of Social Security and Medicare taxes but declines in writing, the employer can claim a refund of the employer portion of the taxes, but not the employee portion. Employers can use the special administrative procedure set forth in Notice 2013-61 to file these claims.

Q15. If a sole proprietor employs his or her same-sex spouse in his or her business, can the sole proprietor get a refund of Social Security, Medicare and FUTA taxes on the wages that the sole proprietor paid to the same-sex spouse as an employee in the business?

A15. Services performed by an employee in the employ of his or her spouse are excluded from the definition of employment for purposes of the Federal Unemployment Tax Act (FUTA). Therefore, for all years for which the period of limitations is open, the sole proprietor can claim a refund of the FUTA tax paid on the compensation that the sole proprietor paid his or her same-sex spouse as an employee in the business. Services of a spouse are excluded from Social Security and Medicare taxes only if the services are not in the course of the employer's trade or business, or if it is domestic service in a private home of the employer.

Q16. What rules apply to qualified retirement plans pursuant to Rev. Rul. 2013-17?

A16. Qualified retirement plans are required to comply with the following rules pursuant to Rev. Rul. 2013-17:

  1. A qualified retirement plan must treat a same-sex spouse as a spouse for purposes of satisfying the federal tax laws relating to qualified retirement plans.
  2. For purposes of satisfying the federal tax laws relating to qualified retirement plans, a qualified retirement plan must recognize a same-sex marriage that was validly entered into in a jurisdiction whose laws authorize the marriage, even if the married couple lives in a domestic or foreign jurisdiction that does not recognize the validity of same-sex marriages.
  3. A person who is in a registered domestic partnership or civil union is not  considered to be a spouse for purposes of applying the federal tax law requirements relating to qualified retirement plans, regardless of whether that person’s partner is of the opposite or same sex.

Q17. What are some examples of the consequences of these rules for qualified retirement plans?

A17. The following are some examples of the consequences of these rules:

  1. Plan A, a qualified defined benefit plan, is maintained by Employer X, which operates only in a state that does not recognize same-sex marriages. Nonetheless, Plan A must treat a participant who is married to a spouse of the same sex under the laws of a different jurisdiction as married for purposes of applying the qualification requirements that relate to spouses.
  2. Plan B is a qualified defined contribution plan and provides that the participant’s account must be paid to the participant’s spouse upon the participant’s death unless the spouse consents to a different beneficiary. Plan B does not provide for any annuity forms of distribution. Plan B must pay this death benefit to the same-sex surviving spouse of any deceased participant. Plan B is not required to provide this death benefit to a surviving registered domestic partner of a deceased participant. However, Plan B is allowed to make a participant’s registered domestic partner the default beneficiary who will receive the death benefit unless the participant chooses a different beneficiary.

Q18. As of when do the rules of Rev. Rul. 2013-17 apply to qualified retirement plans?

A18. Qualified retirement plans must comply with these rules as of Sept. 16, 2013. Although Rev. Rul. 2013-17 allows taxpayers to file amended returns that relate to prior periods in reliance on the rules in Rev. Rul. 2013-17 with respect to many matters, this rule does not extend to matters relating to qualified retirement plans. The IRS has not yet provided guidance regarding the application of Windsor and these rules to qualified retirement plans with respect to periods before Sept. 16, 2013.

Q19. Will the IRS issue further guidance on how qualified retirement plans and other tax-favored retirement arrangements must comply with Windsor and Rev. Rul. 2013-17?

A19. The IRS intends to issue further guidance on how qualified retirement plans and other tax-favored retirement arrangements must comply with Windsor and Rev. Rul. 2013-17.  It is expected that future guidance will address the following, among other issues:

  1. Plan amendment requirements (including the timing of any required amendments).
  2. Any necessary corrections relating to plan operations for periods before future guidance is issued.

Q20. Can a same-sex married couple elect to treat a jointly owned and operated unincorporated business as a Qualified Joint Venture?

A20. Yes. Spouses that wholly own and operate an unincorporated business and that meet certain other requirements may avoid Federal partnership tax treatment by electing to be a Qualified Joint Venture. For more information on Qualified Joint Ventures, see the tax topic “Husband and Wife Business” at http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Husband-and-Wife-Business.

Q21. In the situations described in FAQ #10 and FAQ #11, may the employee claim a refund for the social security and Medicare taxes paid on the benefits if the employer will not?

A21. Yes. If the period of limitations for filing a claim for refund is open and the employee has not been reimbursed by the employer for the Social Security and Medicare taxes and has not authorized the employer to file a claim for refund of those taxes on his or her behalf, the employee may claim a refund. The employee should seek a refund of Social Security and Medicare taxes from his or her employer first. However, if the employer indicates an intention not to file a claim or adjust the overpaid Social Security and Medicare taxes, the employee may claim a refund of any overpayment of employee Social Security and Medicare taxes by filing Form 843, Claim for Refund and Request for Abatement. The requirements for an employee filing a claim for refund of the employee portions of Social Security and Medicare taxes can be found in the Instructions for Form 843. Employees should write “Windsor Claim” in dark, bold letters across the top margin of Form 843.

Q22. Is an employer that repays or reimburses an employee on or before Dec. 31, 2013, for an overpayment of Social Security and Medicare taxes and income tax withholding with respect to same-sex spouse benefits provided in 2013 required to obtain a written statement from the employee confirming the employee did not make a claim for refund of the overcollected taxes (or the claim was rejected) and will not make any future claim for refund or credit of the overcollected taxes?

A22. No. An employer using the first special administrative procedure under Notice 2013-61 (i.e., employer repays or reimburses an employee for 2013 overpayments of taxes on or before Dec. 31, 2013, and corrects the overpayment on the fourth quarter 2013 Form 941) does not need to obtain the written statement from its employee with respect to the 2013 overpayments. However, an employer using the second special administrative procedure under Notice 2013-61 (i.e., employer does not repay or reimburse an employee for an overpayment of taxes on or before Dec. 31, 2013, and corrects the overpayment on a Form 941-X) is required to obtain such written statement from each affected employee.

Q23. If an individual employed his or her same-sex spouse to perform domestic (household) services in the individual’s private home, can the individual get a refund of Social Security, Medicare and FUTA taxes on wages that the individual paid to the spouse for such service? If so, which forms should the individual use to claim refunds?

A23. Yes, if the period of limitations for filing a claim for refund is open, the individual can get a refund of Social Security, Medicare and FUTA taxes paid on remuneration for domestic services in the individual’s private home that were performed by his or her same sex spouse as the individual’s employee. If the taxes for these services were reported on Schedule H (Form 1040), Household Employment Taxes, and taxes were paid in connection with the Form 1040, the individual should file an amended Form 1040 to claim refund of those taxes together with an amended Schedule H. For information on filing an amended return, go to Tax Topic 308, Amended Returns, at http://www.irs.gov/taxtopics/tc308.html. If the Social Security and Medicare taxes for the domestic service were reported on Form 941, Employer’s QUARTERLY Federal Tax Return, the individual employer can use Form 941-X, Adjusted Employer’s QUARTERLY Federal Tax Return or Claim for Refund, to claim a refund of these taxes. The requirements for filing a claim for refund or making an adjustment of the employer and employee portions of Social Security and Medicare taxes can be found in the Instructions for Form 941-X. Notice 2013-61 provides special administrative procedures for employers to file claims for refunds or make adjustments for an overpayment of social security taxes and Medicare taxes on same-sex spouse benefits. If the FUTA taxes for the domestic service were reported on Form 940, Employer’s Annual Federal Unemployment (FUTA) Tax Return, the individual employer can file an amended Form 940 for the prior year to obtain a refund. The previous year’s Form 940 should be used to claim a refund of FUTA taxes for that prior year. (Forms 940 for prior years may also be found at IRS.gov.)

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