Tax time and preserving

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1 Tax time and preserving your federal rights Contact GLAD s Legal InfoLine for the most accurate, up-to-date information: GLAD Gay & Lesbian Advocates & Defenders

2 This document contains general information about how you might preserve your rights when filing your federal taxes. This guidance is intended for general information purposes. It should not be construed as legal advice or a legal opinion on any specific facts or circumstances, and does not create an attorney-client relationship. Because sound legal advice must necessarily take into account all relevant facts and developments in the law, GLAD urges you to contact your own attorney or tax professional for assistance and advice specific to your situation. We are also happy to consult with attorneys and tax professionals. Filing This Year s Federal Taxes While DOMA Section3 is still in effect, GLAD continues to recommend that married same-sex couples file their federal income tax returns as Single or Head of Household. In some cases you may be able to file one return and claim your spouse as a dependent. You should also consider designating in some way that your marriage has occurred. These ideas are discussed in GLAD s publication, Navigating Income Taxes for Married Same-Sex Couples at:

3 What About Past Years Federal Taxes? But what if you live in a marriage equality state or D.C.? Should you try to amend prior years tax returns to file as married filing jointly? You should consider the benefits and risks of filing a timely amended tax return and then decide how to act. First, determine what tax years are eligible for you to file an amended return. Generally speaking, you can only go back three years (see side bar). And, of course, you can also only file an amended return as married if you were in fact married on December 31 of that tax year. See the instructions for IRS Form 1040X for more information: Second, consider the risks and benefits of filing an amended return. Most people file an amended return because they would be due a refund. This has to be determined on a situation-by-situation basis and can vary from year-to-year. For same-sex married couples, there are several reasons why you would be due a refund if you could file as married. For example, federal tax rate schedules are generally more favorable for married joint return filers than other statuses (and least favorable for Married Filing Separately ). Married couples also can pool income and deductions. In addition, if one person in the couple received health insurance through a spouse s employer, the employer should have been imputing income to the spouse and taxing the spouse accordingly. The imputed income is the fair market value of your spouse s health insurance as determined by your employer. To receive a refund of the income taxes and FICA paid on this imputed income, you must specifically request it. NOTE: There is some question about the deadline for filing an amended return as married when you could not originally do so because of DOMA Section 3. Planning conservatively, you should file any amended return within three years of the original due date (even if you were granted an extension on filing your taxes that year.) For example, for the tax year 2010 (where the original due date was April 15, 2011), your amended return would have to be filed by April 15, If you cannot file within three years of April 15 of the original due date but can file within three years of your extended filing date, consult a tax professional or call GLAD for more information. 3

4 Even if you would benefit financially from filing an amended return, you should also consider potential downsides such as an increased risk of audit, possible assessment of a tax deficiency, and the burden, expense and uncertainty of litigation. You should also consider whether you would be due a refund for one year but owe taxes for another. The IRS will likely deny the refund claim, but taxpayers then have two years from the notice of disallowance in which to file suit for their refund in federal court. Of course, applicability of these issues to any particular person should be determined through consultation with a tax professional. 4

5 If We File An Amended Return, What Should We Say About DOMA And Why We Are Filing? There are three tax forms you might need to submit to amend your return to Married Filing Jointly : the 1040X the the 8275-R On each form you will be asked to provide an explanation of the changes. On the 1040X you can use the sample language provided below. For the other two forms, you can simply indicate that you have provided an attached form with an extended explanation. This extended explanation should also be appended to Form 1040X. Additionally, when you submit these materials to the IRS, you may want to include a cover letter explaining the changes. Sample Cover Letter Re: [Name] and [Name] [Social Security #] and [Social Security #] Form 1040X (year) To Whom It May Concern: We are amending our individual income tax returns for the year 20 prospectively pending the challenge to the constitutionality of Section 3 of the Defense of Marriage Act in Windsor v. United States, currently awaiting a decision at the United States Supreme Court. Sincerely, [Name] [Name] 5

6 Who qualifies for the Social Security spousal retirement benefit? Sample Explanation of Changes for Forms 8275 and 8275-R For the 8275 and 8275-R you may simply write: See Attached Statement in the Detailed Explanation field and attach the statement below. Sample Attached Explanation Attachment to Form 1040X, Part III, Explanation of Changes Form 8275, Disclosure Statement Form 8275-R, Regulation Disclosure Statement 20 Tax Year REFUND CLAIM BASED ON UNCONSTITUTIONALITY OF THE DEFENSE OF MARRIAGE ACT 6 The taxpayer, [name] (#Social Security), a spouse in a same-sex couple, was married under the laws of [state] as of December 31, [tax year]. For the tax year of this amended return, taxpayer filed a joint [state] income tax return with her spouse, [spouse name] (#Social Security). However, in accordance with the federal law known as the Defense of Marriage Act ( DOMA ), the taxpayer filed an individual federal tax return as though she was unmarried. The taxpayer believes that being required to file as though she were unmarried amounts to unequal treatment compared to other married persons in [state]. The taxpayer believes that her marriage, which is valid under [state] law, should be respected for federal tax purposes, just like the [state]

7 marriages of heterosexual couples. Although this position is contrary to DOMA, the taxpayer believes that DOMA is unconstitutional and that she should be allowed to file this amended joint return with her spouse and receive the refund shown herein. The taxpayer s filing position is supported by the following: a decision from the U.S. Court of Appeals for the First Circuit in Gill v. OPM and Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services; a decision in the U.S. District Court - District of Connecticut in Pedersen v. OPM; a decision in the U.S. District Court - Northern District of California in Golinski v. OPM; and a decision by the U.S. Court of Appeals for the Second Circuit in Windsor v. United States. The decisions in these cases, which found Section 3 of DOMA to be unconstitutional, have been stayed pending the decision by the United States Supreme Court in Windsor v. United States. NOTE: If the IRS sends you a refund check, do not cash it. Please contact GLAD s Legal InfoLine at GLAD (4523) or at glad.org/rights for information about what to do in that situation or if you have any questions about the information in this publication. In particular, if the taxpayers were able to file as married filing jointly, the taxpayers are due a refund of $. Does GLAD want to know if we file an amended return? Yes! GLAD would like to track who has filed an amended return, for what tax year(s), the date you submitted the amended return, and the date the IRS denies the amended return (from which GLAD can calculate the date by which you would need to file suit to pursue your refund). 7

8 The GLAD Legal InfoLine can be reached from 1:30 4:30 p.m. Monday through Friday at (617) or (800) 455-GLAD (4523) or anytime at Gay & Lesbian Advocates & Defenders 30 Winter Street, Suite 800 Boston, MA Tel: Fax: June 2013