Friday, September 5, 2014
Patricia Cain (Santa Clara), Taxation of Same-Sex Couples After United States v. Windsor: Did the IRS Get It Right in Revenue Ruling 2013-17?, 6 Elon L. Rev. 269 (2014):
The tax world for same-sex couples changed dramatically on June 26, 2013, when the United States Supreme Court handed down its decision in United States v. Windsor. The Court ruled that section 3 of the Defense of Marriage Act (DOMA) was unconstitutional. As a result the IRS would be required to recognize same-sex spouses as validly married for tax purposes. There were three major issues facing the IRS after Windsor: (1) Which marriages should be recognized for tax purposes? (2) How much retroactive effect should be given to the decision? (3) Should marriage equivalent statuses such as registered domestic partnerships and civil unions be treated the same as marriages? On August 29, 2013, the IRS issued Revenue Ruling 2013-17 which answered these three questions. This essay asks whether or not the IRS got it right in the ruling and concludes that for the most part it did. However, serious questions are raised by the fact that the IRS refuses to recognize registered partnerships and civil unions as marriages. The essay concludes that more thought should be given to this issue.