October 22, 2015

Treasury Issues Proposed Guidance Revising Federal Tax Code Definitions for Same-Gender Marriage

On October 21, 2015, the Department of the Treasury (Treasury) and the Internal Revenue Service (IRS) issued proposed rules clarifying that, for federal tax purposes, terms indicating gender such as “husband,” “wife” and “husband and wife,” should be interpreted in a neutral way to include same-gender spouses as well as opposite-gender spouses. As a result, those terms will be redefined in the Internal Revenue Code to reference individuals lawfully married to one another. In addition, the proposed rules redefine “marriage” to provide that a marriage of two individuals will be recognized under the federal tax laws if the marriage would be recognized in any state, possession or territory of the United States. Whether a marriage performed outside of the United States will be recognized depends upon whether that marriage would be recognized in at least one state, possession or territory of the United States. The proposed rules continue the position adopted in earlier guidance that civil unions, registered domestic partnerships, and similar “non-marriage” relationships will not be treated as marriages under the federal tax laws.

The proposed rules were issued in response to the combined effect of the holdings of the U.S. Supreme Court in Obergefell v. Hodges earlier this year, and in United States v. Windsor in 2013.  

The rules will become effective on the date they are published in final form in the Federal Register and will apply to tax years ending on or after that date. Comments and requests for a public hearing on the proposed rules are due on or before December 7, 2015.

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