The Treasury issued a Revenue Ruling today that sets out the rules that will guide the government in handling interpretation of the tax code regarding "marriage" and "husband" or "wife" or "spouse" in respect of same-sex married couples after the Supreme Court's historic DOMA decision in United States v. Windsor, 570 U.S. ___, 133 S. Ct. 2675 (2013). See, e.g., IRS Rules All Legal Same-Sex Marriages Count Now--Even Retroactively, Forbes.com (Aug. 29, 2013); Michael Cohn, Treasury and IRS Recognize Same-Sex Marriages for Tax Purposes, Accounting Today, CCH (Aug. 29, 2013).
Revenue Ruling 2013-17 released today builds on a much earlier ruling (Rev. Rul. 58-66) that recognized common-law marriages for federal income tax purposes. It states that same-sex couples whose marriage takes place in a state (including domestic and foreign jurisdictions entitled to grant marriage licenses) that recognizes same-sex marriages will continue to be recognized as married for federal law purposes even if they move to a state that does not recognize same-sex marriages. Its rationale is straightforward:
Although states have different rules of marriage recognition, uniform nationwide rules are essential for efficient and fair tax administration. A rule under which a couple’s marital status could change simply by moving from one state to another state would be prohibitively difficult and costly for the Service to administer, and for many taxpayers to apply.
As Treasury Secretary Lew noted, “This ruling also assures legally married same-sex couples that they can move freely throughout the country knowing that their federal filing status will not change.” Id. This is a significant relief for such couples, since their federal tax obligation could otherwise have shifted markedly merely because of a move. The new guidelines will apply beginning September 16, but married couples can now also file an amended return for prior years to claim correct marital status.
In spite of the relief this federal ruling provides, same-sex couples will still face enormously complex legal issues because of the states that discriminate against such couples. They may have adopted children in the state in which the marriage was celebrated, but they may move to a state that doesn't recognize gay marriages and doesn't permit gay adoptions. What kind of issues will that raise? They may be able to transfer property at death without probate in their home state, but not in their new state of domicile. All of these issues continue to argue for an equal protection right to gay marriage and the rights and obligations that correspond to it, as well as sister state comity in recognizing gay marriages conducted in other states.