On June 26, 2013, the United States Supreme Court found Sec. 3 of DOMA (the Defense of Marriage Act) to be unconstitutional (U.S. v. Windsor). Basically, the Court found a violation of equal protection of the 5th Amendment to treat a same-sex marriage with less respect than an opposite-sex marriage.

There are a variety of federal tax issues associated with the decision. The Internal Rev website still says (since the decision was handed down) that they will move swiftly to update guidance on this topic.

One area I’d like to see the IRS address first is to state that for federal tax purposes, marriage is defined per the state of celebration (where performed) rather than the state of domicile. Some states do not recognize same-sex marriage. So, a couple married, say, in California would not be viewed as married by Texas. If the federal tax law treats a couple as married based on the treatment of their state of domicile, it seems that there would be a problem under the Windsor decision because then the federal government is not treating all marriages as equal. The couple married in California is still married (at least per California law and that of some other states) if they live in a state that does not recognize it. Can the federal government say they are not married based on where they live? It seems contrary to the Windsor decision.

But, we await guidance from the IRS. Hopefully that “guidance” will be in the form of binding guidance rather than the Chief Counsel Advices and FAQs that currently exist. Read More