DOMA FAQ

The IRS issued more specific guidance in the form of FAQs on how to make adjustments and claim refunds. The FAQs that apply to employee benefit plans are described below:

• Questions 1 through 9 provide general rules for married same-sex couples. For tax year 2013 and subsequent years, same-sex spouses who are legally married must file tax returns using joint or married filing separately filing status. For 2012 and prior years (provided returns are filed before September 16, 2013), same-sex spouses who filed separate returns may choose, but are not required to, amend their returns.

• Question 10 addresses the income tax treatment of employer provided health coverage. Taxpayers may file an amended Form 1040 and claim a refund to recover federal income tax paid on the value of employer-provided coverage for a same-sex spouse that was previously included in the taxpayer’s gross income. For example, assume an employee has $3,000 included in Box 1 of his or her 2012 W-2 to reflect the value of employer-provided health coverage for a same-sex spouse and the employer withheld $750 in income tax on that amount. The employee may file an amended Form 1040 for 2012 excluding the $3,000 from his or her gross income and claim a refund on taxes paid. (Please consult with your personal tax advisor for additional information.)

• Question 11 addresses the tax treatment of after-tax contributions for spouse coverage that may have been treated as pre-tax contributions if the same-sex partner had been treated as the employee’s legal spouse. Specifically if an employee paid pre-tax contributions for his or her health care coverage under an employer sponsored cafeteria plan and paid for same-sex spouse coverage on an after-tax basis, then the employee can file an amended Form 1040 to exclude the after-tax premiums from his or her gross income and claim a refund on income taxes paid on the after-tax premiums.

• Questions 16 and 17 provides that a qualified retirement plan must treat a same-sex spouse as a spouse for federal tax purposes (e.g., Qualified Joint Survivor Annuity rights, waivers, and death benefits) if the employee and spouse are validly married under a state law, regardless of where the employer is located or the employee and spouse reside.

• Question 18 provides that qualified retirement plans must comply with the rules effective September 16, 2013. To date there is no guidance on whether or how the rules will apply to retirement plans for periods before September 16, 2013.

For additional IRS FAQs and details, please refer to http://www.irs.gov/uac/Answers-to-Frequently-Asked-Questions-for-Same-Sex-Married-Couples