From: William D. Rohrer
Attorney at Law

DOMA-Contingent Protective Claims Should Be Filed Now!

When the Supreme Court ultimately decides United States v. Windsor, the Court could strike down the portion of the Defense of Marriage Act (“DOMA”) that prohibits married same-sex couples from receiving the federal benefits provided to married opposite-sex couples.  It is expected that if the Supreme Court strikes down DOMA, it will not set a specific date on which DOMA would become unconstitutional, thus allowing married same-sex taxpayers to receive refunds on federal income, estate and gift taxes, and Federal Insurance Contributions Act (“FICA”) taxes as far back as 2009.

In order for married same-sex couples to preserve their right to a refund of federal taxes, such couples should file protective claims for tax refunds.  For taxpayers who were married as of 2009, such protective claims for tax refunds should be filed before the statue of limitations for 2009 refund claims expires on April 15, 2013.  Employers can also file for a refund on their portion of FICA taxes paid on benefits for same-sex married couples.  Both an employer and an employee can file a protective claim for a refund by citing United States v. Windsor, but employers are not obligated to do so. 

Even if the Supreme Court decides that DOMA is unconstitutional, same-sex married couples who reside in states that do not recognize same-sex marriage may not receive the benefit of a refund.  However, by filing a refund claim now, such couples can protect their claims if the Supreme Court rules broadly in United States v. Windsor or if there is a future challenge to Section 2 of DOMA, which section allows states not to recognize same-sex marriages performed in other states.

If the IRS denies the refund claim, taxpayers will still have two years from the date of the denial to file a protest.  Additionally, there is no need to put a dollar amount on the protective refund claim when filed, so taxpayers would be able to adjust the dollar amount of their refund depending on the Supreme Court’s ruling.

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