Today the IRS published a ruling for “individuals of the same sex who are lawfully married.” Unlike the state residency restrictions published by the Social Security Administration, the IRS will recognize marriages of same-sex spouses even if the married couple resides in a jurisdiction that does not recognize the marriage.
“Any same-sex marriage legally entered into in one of the 50 states, the District of Columbia, a U.S. territory or a foreign country will be covered by the ruling. However, the ruling does not apply to registered domestic partnerships, civil unions or similar formal relationships recognized under state law.” (emphasis added) IR-2013-72
This ruling affects not only returns filed for tax year 2013, but also affects all prior years during which individuals were legally married. It appears that individuals affected may choose whether or not to amend prior year returns based upon their circumstances and whether or not it is to their benefit.
“Generally, the statute of limitations for filing a refund claim is three years from the date the return was filed or two years from the date the tax was paid, whichever is later. As a result, refund claims can still be filed for tax years 2010, 2011 and 2012. Some taxpayers may have special circumstances, such as signing an agreement with the IRS to keep the statute of limitations open, that permit them to file refund claims for tax years 2009 and earlier.”
This ruling not only applies to individual tax returns but also gift and estate tax returns. Additional guidance can be found at Answers to Frequently Asked Questions for Individuals of the Same Sex Who Are Married Under State Law on the IRS website. The ruling will not, however, automatically extend to state individual filing statuses in states like Virginia that do not recognize same-sex marriage.
Maybe Governor McDonnell will extend recognition of same-sex marriage to individuals filing Virginia state tax returns in another desperate attempt to restore his legacy.