The IRS has now issued Notice 2013-61, which provides procedures for requesting refunds on employment taxes paid with respect to spousal benefits for same-sex spouses. Some highlights:
Tag Archives: Defense of Marriage Act
IRS Creates Simplified Procedures for Refunds of Employment Taxes on Spousal Benefits
Department of Labor Announces That Same-Sex Marriages Will Be Recognized For ERISA Purposes, Regardless of the Laws of the Employer’s or Employee’s State
(Posted on September 18, 2013 by Carol V. Calhoun)
The Department of Labor has now issued Technical Release No. 2013-04 (September 18, 2013), in which it announces that for purposes of Title 1 of the Employee Retirement Income Security Act of 1974 (“ERISA”), the term “spouse” will be read to refer to any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages. Similarly, the term “marriage” will be read to include a same-sex marriage that is legally recognized as a marriage under any state law. (The latter provision is apparently necessary to deal with marriages that are performed abroad.) Civil unions and domestic partnerships will not, however, be treated as marriages. This corresponds with the position earlier taken by the IRS.
The announcement applies only for purposes of ERISA, however. Face Sheet 28F indicates that the Department of Labor will treat a party to same-sex marriage as a spouse for purposes of the Family & Medical Leave Act only if the state where the employee resides recognizes the marriage.
Who is a spouse? Different federal agencies take differing approaches after Windsor
(Posted on August 13, 2013 by Carol V. Calhoun)
Since the publication of this article, Treasury and the IRS have announced that any legal same-sex marriage will be recognized for federal tax purposes, regardless of whether the couple’s home state recognizes the marriage. See this post. The Department of Labor has also issued final regulations under the Family & Medical Leave Act which recognize a marriage, regardless of the couple’s domicile, if a) it occurred within the United States, and it was valid in the state in which it took place, and b) it occurred outside of the United States, if it was valid in the jurisdiction in which it took place and it could have been entered into in at least one state.
Federal law requires that employer plans determine marital status in a variety of contexts, ranging from requirements that ERISA-covered retirement plans provide spousal death benefits (e.g., a qualified joint and survivor annuity, qualified preretirement survivor annuity, or payment of the participant’s account balance to the spouse) to COBRA (health care continuation) rights in the event of a divorce or separation. In the wake of the Supreme Court’s decision in United States v. Windsor, it is clear that a same-sex married couple must be treated the same as an opposite-sex married couple for these purposes. But when will a same-sex couple be treated as married? Weeks after the Windsor decision, the few federal agencies that have issued guidance have taken wildly disparate approaches.
Federal District Court Blocks Michigan Law Eliminating Health Benefits for Domestic Partners of Public Employees
(Posted on July 4, 2013 by Carol V. Calhoun)
Michigan Public Act 297 (“Act”) prohibits public employers from providing medical and other fringe benefits to any person cohabitating with a public employee unless that person is legally married to the employee, or is a legal dependent, or eligible to inherit under the State’s intestacy laws. In a June 28 decision, U.S. District Judge David Lawson (E.D. Mich.) has issued a preliminary injunction blocking enforcement of the Act based on a finding that the plaintiffs (same-sex couples of which one works for a Michigan local government) “have stated a viable claim based on the Equal Protection Clause on which they are likely to succeed.”