The U.S. Supreme Court will take up the Defense of Marriage Act in March, and could issue a ruling by the end of June. If the Supreme Court overturns DOMA, couples in same-gender marriages will be treated the same as opposite-gender couples for all federal purposes … including taxes.
So what should couples in same-gender marriages be doing, tax-wise, in preparation for the ruling?
- Examine your tax situation for prior years. If you would have benefited from filing a joint return in prior years, you may want to submit an amended, joint tax return to put in a protective claim for refund in the event DOMA is overturned. Note that the IRS will not process your amended return until after the DOMA ruling comes down.
- You can go back as far as 2009 to file an amended return. For most people, the amendment window for 2009 closes April 15, 2013.
- Make sure to file the proper disclosures with your amended return. Basically, because DOMA is still considered a valid law, you have to include certain language that tells the IRS that you are amending your return based on court challenges to DOMA. You can find much more guidance in this document from GLAD.
- For now, DOMA is still the law of the land, and will be until at least June. So, when you file your 2012 tax return, you’ll still have to file as two separate, single people. But after you file those returns, you can always submit an amended, joint tax return. Or….
- Put your 2012 return(s) on extension until after the DOMA ruling is released. If DOMA is overturned, you could then file an original 2012 tax return as a married couple and not mess with having to amend. If DOMA is upheld, you would go ahead and file your separate, single returns instead. Note, though, that A) this would mean putting off getting your refund, and B) extensions give you an extension of time to file, but not an extension of time to pay any tax you owe, so if you end up owing on your 2012 tax return, you could be subject to penalties if you don’t pay what you owe by April 15th.
- Professor Pat Cain at Santa Clara Law School in California maintains a must-read blog about the tax issues of same-gender marriage.
- GLAD and Lambda Legal are two other good resources on this topic.