Amending Same Sex Couple’s Tax Returns

In 2011 we represented a client who had unfiled tax returns, and we created for him a tax payment plan. The client was a spouse in a same sex marriage. We prepared and filed the income federal income tax returns as single for the Internal Revenue Service, since they did not recognize the marriage.

Flash forward to 2013. When the Supreme Court ruled against Section 3 of the Defense of Marriage Act (DOMA), it created the opportunity for same sex married couples to file joint federal tax return. For the most part filing a joint tax return is more tax efficient for a couple, but it does have downsides since a joint tax return does create joint and several tax liability for any unpaid taxes. Under the tax law, for the tax year 2013, and future years, same sex couples must either file a joint income tax return or married filing separately tax return. For tax years before 2012, under the tax law a return filed now generally must file using a joint filing status, or married filing separately status, for all back tax years they were married.

If the 2012 tax returns were already filed, the possibility exists of amending the filed tax returns if that would produce a tax refund. A taxpayer seeking a refund must  generally file a refund claim within three years from the date the tax return was filed, or two years from the date the tax was paid. As a NY Tax Attorney, for most cases we have seen, the difference in the expected refunds from amending the tax returns has not been worth the time and expense of going through that process, but every case is unique and needs to be evaluated since if 1) only one spouse worked, or 2) one spouse was covered by others health insurance that was included in taxable wages, that would likely produce a benefit. Please keep in mind that filing jointly can also raise the overall tax liability, so a word of caution for that issue.

In summary, if you have unfiled taxes, or have filed but do not understand the tax laws well enough to determine the best way to obtain a refund for taxes paid. We can assist you with your back taxes and helping to reduce your tax debt, or obtain a tax refund if it is available.

By: Timothy S. Hart

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