“Much was decided by the Service in both Rev. Rul. 2013-17 and IR-2013-72, but some questions remain unanswered.  Further, one position taken by the Service could have future ramifications in the event of a future as-yet-unknown tax statute unconstitutional determination. 

Despite all of this discussion, we have most likely not heard the last from the Service on this issue as Rev. Rul. 2013-17 states that the Service may provide additional guidance on this subject and on the application of Windsor with respect to Federal tax administration, and other agencies may provide guidance on other Federal programs that they administer that are affected by the Code. In other words, this is not the end of the story.”

 

George Karibjanian provides LISI members with important commentary on Revenue Ruling 2013-17 and IR-2013-72, both of which can be found on the LISI homepage by clicking the hyperlinks.

George D. Karibjanian is a Senior Counsel in the Personal Planning Department of Proskauer Rose LLP and practices in Proskauer's Boca Raton office.  George is a Fellow in the American College of Trust and Estate Counsel and is Board Certified by the Florida Bar in Wills, Trusts and Estates and earned his B.B.A. in Accounting from the University of Notre Dame in 1984, his J.D. from Villanova University in 1987 and his LL.M. in Taxation from the University of Florida in 1988.  George lectures and writes extensively on various estate planning issues and has recently written several newsletters for LISI on the topic of same-sex estate planning. 

Members should take note of the fact that a new 60 Second Planner by Bob Keebler on Revenue Ruling 2013-17 was recently posted to the LISI homepage. You don’t need any special equipment, just click this link. 

Revenue Ruling 2013-17 offers clarity and guidance on many previously open issues, and reveals numerous planning opportunities for your clients, if you're “in the know.”  Whether you're a CPA, financial advisor, or attorney, join Bob Keebler, in conjunction with The Ultimate Estate Planner, Inc., on Thursday, September 5, 2013 at 11am CT (12pm ET) for a very timely discussion entitled, "Breakthrough IRS Ruling for Same-Sex Married Couples.” This teleconference will address the following questions: What will the IRS consider a legal same-sex marriage? (How will Domestic Partnerships and Civil Unions be treated?; What will happen if a couple moves to a state that does not recognize a legal same-sex marriage?; Will couples be able to obtain income tax and estate and gift tax refunds for prior years?; What will now be the income tax effect of one "spouse" being covered by the other's employer health insurance plan? How will Qualified Retirement Plans and IRA beneficiary and income tax planning be changed? 

Click this link for more information and to register. If you have any questions or wish to register by phone, you can call The Ultimate Estate Planner, Inc. at 1-866-754-6477 or e-mail them directly at events@ultimateestateplanner.com  

Now, here is George Karibjanian’s commentary: 

EXECUTIVE SUMMARY:

“…there are no genuine administrative benefits to DOMA. If anything, Section 3 of DOMA makes Federal administration more difficult ... It's an additional administrative burden.”

-From the Oral Argument of Donald B. Verrilli, Jr., Solicitor General of the United States of America, in United States v. Windsor, argued March 27, 2013, Transcript p. 90.

On August 29, 2013, in response to the United States Supreme Court’s (the “Supreme Court”) decision in United States v. Windsor, 570 U.S. ____ (2013), which determined that Sec. 3 of 1996’s “Defense of Marriage Act” (“DOMA”) was unconstitutional as a violation of the liberties guaranteed to same-sex married persons under the Fifth Amendment to the Constitution of the United States, the Internal Revenue Service (the “Service”) issued Revenue Ruling 2013-17 and Notice IR-2013-72.

In this follow-up to the author’s commentary titled, “Federal Law for Same-Sex Married Couples After Windsor:  Equality for All or Only for Some?” (referred to herein as “Part One”),[1] this commentary will discuss some of the positions adopted by the Service, whether such positions are justified, certain issues that are not clearly set forth by the Service and certain issues that remain unanswered.

FACTS:

Rev. Rul. 2013-17

The prevalent theme in Rev. Rul. 2013-17 is that, as stated by General Verrilli, DOMA creates an administrative nightmare for practitioners and enforcers of the Code[2] alike.  To this end, as for valid same-sex marriages, Rev. Rul. 2013-17 consists of two distinct conclusions:  that “marriage” and “spouse” are “gender-neutral” terms, and that Federal recognition of same-sex marriages applies regardless of whether the parties’ state of residence recognizes the marriage.  In IR-2013-72, the Service provides guidance for same-sex married couples for amending prior returns, providing that such authority is voluntarily and not mandatory, and that such ability only extends to currently “open” taxable years.

COMMENT:

Rev. Rul. 2013-17

1.     “Marriage” and “Spouse” are Gender-Neutral

The first conclusion reached in Rev. Rul. 2013-17 is that, courtesy of the Windsor ruling, the Code must be read in a gender-neutral manner with respect to “marriage” and “spouse” so that that the Code provisions for “marriage” and “spouse” include same-sex spouses.  The Service cited four reasons as to why a gender-neutral approach is necessary.

First, the Supreme Court’s opinion in Windsor suggests that it understood that its decision striking down § 3 of DOMA would affect tax administration in ways that extended beyond the estate tax refund at issue.  The Service noted that the Supreme Court observed in particular that § 3 burdened same-sex couples by forcing them to follow a complicated procedure to file their Federal and state taxes jointly and that § 3 raised the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses.

Second, an interpretation of the gender-specific terms in the Code to exclude same-sex spouses would raise serious constitutional questions.  Citing Supreme Court decisions, the Service stated that a well-established principle of statutory interpretation holds that where an otherwise acceptable construction of a statute would raise serious constitutional problems, a court should construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.[3]  The Service then relied on the Fifth Amendment analysis in Windsor and acknowledged that serious doubts are raised about the constitutionality of Federal laws that confer marriage benefits and burdens only on opposite-sex married couples, and that the canon of constitutional avoidance must interpret the gender-specific terms in the Code to refer to same-sex spouses and couples.[4]

Third, the provisions of § 7701[5] permits a gender-neutral construction of the gender-specific terms.  Sec. 7701 provides definitions of certain terms generally applicable for purposes of the Code when the terms are not otherwise defined in a specific Code provision and the definition in § 7701 is not manifestly incompatible with the intent of the specific Code provision.  Section 7701(p) provides a specific cross-reference to the Dictionary Act, 1 U.S.C. § 1, which provides, in part, that when “determining the meaning of any Act of Congress, unless the context indicates otherwise, . . . words importing the masculine gender include the feminine as well.”  The Service stated that nothing in the surrounding text forecloses a gender-neutral reading of the gender-specific terms; rather, the provisions of the Code that use the terms “husband and wife,” “husband,” and “wife” are inextricably interwoven with provisions that use gender-neutral terms like “spouse” and “marriage,” indicating that Congress viewed them to be equivalent. Accordingly, the Service concluded that the most logical reading is that the terms “husband and wife” were used because they were viewed, at the time of enactment, as equivalent to the term “persons married to each other,” and that there is nothing in the Code to suggest that Congress intended to exclude from the meaning of these terms any couple otherwise legally married under state law.[6] 

Fourth, other considerations also strongly support this interpretation.  A gender-neutral reading of the Code fosters fairness by ensuring that the Service treats same-sex couples in the same manner as similarly situated opposite-sex couples.  A gender-neutral reading of the Code also fosters administrative efficiency because the Service does not collect or maintain information on the gender of taxpayers and would have great difficulty administering a scheme that differentiated between same-sex and opposite-sex married couples.

In retrospect, in light of the Windsor opinion, this conclusion was probably already assumed by practitioners.  Thus, technically, this part of Rev. Rul. 2013-17 does not add anything new but clarifies existing law by applying Windsor to the Code.  If it is unconstitutional under Windsor to classify marriages based on sexual preference, it is logical to presume that any terms under the Code that could be interpreted as relating to a sexual preference distinction with respect to marriage must be interpreted in a neutral way. 

2.     State of Residency is Irrelevant

The second conclusion, however, does not confirm a generally-accepted principle but rather resolves a much-debated issue within the tax practitioner community.  The issue is whether a same-sex married couple who resides in a state (the “State of Residence”) that does not recognize the marriage (referred to as a “Non-Recognition State”) should be afforded marital status of federal law, or whether such recognition only applies if the State of  Residence recognizes same-sex marriages (a “Recognition State”). 

One argument holds that case law and other areas of Federal law conclude that Federal law must follow the laws of the State of Residence and therefore, if the State of Residence is a Non-Recognition State, the same-sex married couple would not be afforded Federal benefits.  Some precedent can be elicited from certain cases in the divorce arena where the State of Residence does not respect a divorce from another jurisdiction. 

For example, in Rev. Rul. 67-442,[7] the Service stated that it will generally not question for Federal income tax purposes the validity of any divorce decree until a court of competent jurisdiction declares the divorce to be invalid.  This ruling was issued as a non-acquiescence to the holdings of the Second and Third Circuits, respectively, in Harold E. Wondsel v. Commissioner, 350 F. 2d 339 (1965), cert. denied, 383 U.S. 935 (1966), and Estate of Herman Borax v. Commissioner, 349 F. 2d 666 (1965), cert. denied, 383 U.S. 935 (1966), which upheld a divorce in a jurisdiction different than the State of Residence.  In other words, the Service believed that only the State of Residence’s decision was relevant to the question of whether the parties were divorced. 

Those advocating this position with respect to same-sex marriage recognition attribute statutory recognition as the equivalent to a decree of a court of competent jurisdiction; therefore, a Non-Recognition State is, in effect, invalidating the marriage through its non-recognition so Federal tax law cannot treat the couple as being married for Federal purposes.  Further support for the “State of Residency” argument is found in the fact that several Federal testamentary positions are derived from the law of the State of Residency, such as community property and homestead law for descent/devise purposes.[8]

The other, polar opposite, argument holds that it is irrelevant whether the State of Residency recognizes the marriage.  The basic fact is that the parties are married should be respected for all purposes.  Proponents of this position present the following arguments.  First, the Federal cases often cited in support of the “State of Residence” provision refer to invalidation of the marriage whereas non-recognition statutes do not invalidate but only fail to recognize the marriage.  Thus, the parties are still legally married.  Second, as advocated in Part One, to adopt a definition of marriage based on the laws of the State of Residency is a violation of the principals set forth in Windsor which state that the definition of marriage is the exclusive jurisdiction of the states.

In Rev. Rul. 2013-17, the Service adopted the latter view, that State of Residency is irrelevant for purposes of Federal recognition of the marriage.  Therefore, if a same-sex couple marries in New York and moves to Florida, which is a Non-Recognition State – even if such marriage was the result of “forum shopping” for a jurisdiction that would marry the same-sex couple - the couple will be considered to be married for all purposes of the Code. 

Interestingly, the Service did not set forth a legal reason for this conclusion, but, rather, seemingly relied on its past precedent in Rev. Rul. 58-66[9] (which determined that a common-law married couple would be treated as married for Federal purposes regardless of where they resided) and “sort of” adopted General Verrilli’s comments by determining that from an administrative standpoint, this was the only conclusion that could be reached. 

The Service acknowledged that given our increasingly mobile society, it is important to have a uniform rule of recognition that can be applied with certainty by the Service and taxpayers alike for all Federal tax purposes.  Those overriding tax administration policy goals generally apply with equal force in the context of same-sex marriages. 

The Service stated that spouses are generally treated as related parties for Federal tax purposes, and one spouse’s ownership interest in property may be attributed to the other spouse for purposes of numerous Code provisions such that if the Service did not adopt a uniform rule of recognition, the attribution of property interests could change when a same-sex couple moves from one state to another with different marriage recognition rules.  The potential adverse consequences could impact not only the married couple but also others involved in a transaction, entity, or arrangement, which would lead to uncertainty for both taxpayers and the Service.

The Service continued by stating that a rule of recognition based on the state of a taxpayer’s current domicile would also raise significant challenges for employers that operate in more than one state, have employees (or former employees) who live in more than one state, or move between states with different marriage recognition rules in that substantial financial and administrative burdens would be placed on those employers, as well as the administrators of employee benefit plans.

Thus, the Service concluded that all of these problems are avoided by ignoring the particular laws of the State of Residency as to recognition of the same-sex marriage, which allows the Service to avoid the imposition of the additional burdens on itself, employers, plan administrators, and individual taxpayers.

From a logical standpoint, this is the correct conclusion.  The divorce cases relied upon in the “State of Residency” argument ignore the underlying fact that such cases concern the validity of the marriage, whereas the state law DOMA statutes do not invalidate but, rather, fail to recognize. 

To understand this concept, a strict statutory analysis must be applied.  For example, as stated in Part One, Florida Statutes § 741.212(1) provides as follows: “Marriages between persons of the same sex entered into in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, or relationships between persons of the same sex which are treated as marriages in any  jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, are not recognized for any purpose in this state (emphasis added).” 

This statue does not state that non-Florida same-sex marriages are invalid, but only that such marriages will not be recognized for purposes of Florida law.  Thus, by negative inference, Florida acknowledges the parties are still legally married, but that marital provisions of Florida law will not apply to them.  This is far different than advocating that the parties are not legally married based on a Mexican divorce or an ex-parte divorce in another domestic jurisdiction.  Fortunately, the Service understood this distinction and ruled accordingly.

From an administrative standpoint, clearly this is the preferred option.  If State of Residence were the controlling factor, one can imagine the administrative nightmare that would follow.  For example, assume the following: 

Example 1: 

Gob and Tobias, both of whom are Florida residents, travel to Massachusetts in 2004, marry, and afterwards return back to Florida.  Gob, who is the wealthier spouse, owns both of the couple’s residences, one of which is in New York (a Recognition State) and the other of which is in Florida (a Non-Recognition State).  Assume that the only income earned by the couple is New York municipal bond income so that from a state income tax standpoint, their tax domicile is neutral.  For all years of the marriage, the couple spends 8 months of the year in Florida and 4 months in New York. 

Suppose in 2013, Gob, whose net worth is $50,000,000, wishes to purchase a residence on the shore in Ocean City, New Jersey for $10,000,000 and desires to place title in both his and Tobias’s names. 

If Gob were to remain a Florida resident, this would result in a $5,000,000 taxable gift by him to Tobias (assume that Gob had already utilized his annual exclusion as to Tobias); if Gob were to be a New York resident, the gift would qualify for the gift tax marital deduction.  What proof would the Service require for Gob to claim New York as his domicile at the time of the gift?  Do the standard state income tax tests apply, i.e., six months and a day?  Does the tax domicile in this instance reflect the “state of mind,” so that Gob can declare himself to be a New York resident at the time of the gift?  What proof would be needed…a valid marriage certificate and/or a recently recorded Declaration of Domicile?  Would such documents be required by all married taxpayers so as to avoid any subsequent equal protection arguments? 

Fortunately, based on the Service’s position in Rev. Rul. 2013-17, this is not a concern.

3.      “Quasi-Marriages” Are Not Recognized

At the end of the ruling, the Service noted that for Federal tax purposes, the term “marriage” does not include registered domestic partnerships, civil unions, or other similar formal relationships recognized under state law that are not denominated as a marriage under that state’s law, and the terms “spouse,” “husband and wife,” “husband,” and “wife” do not include individuals who have entered into such a formal relationship.  This is probably the correct result – the focus in Windsor was on “marriage.”  Thus, the import is on the actual marriage ceremony.  “Quasi-marriage” relationships are not “marriages” and thus should not be considered. 

This harkens back to Justice Samuel Alito’s comments in the Windsor oral argument.  Justice Alito wondered whether, when discussing the use of “marriage” within § 2 of DOMA, perhaps Congress could have avoided the argument altogether and used a more neutral term such as “certified domestic units” as a way to avoid a definition of “marriage” and instead focus on who is entitled to receive Federal benefits.[10]  Likewise, if Congress intended for such “quasi-marriages” or “certified domestic units” to receive the benefits of marriage under the Code, it would have specifically so provided.  From a strict interpretation, the fact that the Code uses the term “marriage” appears to be a sufficient limitation. 

Consider the ramifications if such benefits were extended to “quasi-marriages.”   Most states with “quasi-marriage” provisions for same-sex couples vary in what they provide.  Some states do not provide all of the benefits of marriage – for example, whereas Hawaii grants all of the rights and responsibilities common to marriage,[11] Wisconsin only allows some rights, such as the ability to inherit a partner’s estate in the absence of a will and a presumption of survivorship in jointly-titled property.[12]  If Federal marriage recognition were applied to “quasi-marriages,” would recognition be granted to those states that do not provide all of the benefits of marriage, and, if not, to what degree would a state have to convey rights in order to achieve Federal recognition?

What the Service is likely concluding is that the issue before the Supreme Court in Windsor focused on “marriage,” so for a state’s residents to obtain Federal benefits of “marriage,” they must be, in fact, “married.”  In other words, the Service arrived at the easier conclusion from an administrative standpoint.

Notice IR-2013-72

The purpose of Notice IR-2013-72 is to provide guidance with respect to the filing of tax returns as a result of the Windsor decision.  The Notice specifically provides that, “same-sex couples will be treated as married for all federal tax purposes, including income and gift and estate taxes” and that the Notice “applies to all federal tax provisions where marriage is a factor, including filing status, claiming personal and dependency exemptions, taking the standard deduction, employee benefits, contributing to an IRA and claiming the earned income tax credit or child tax credit.” 

The interesting aspect of the Notice pertains to prior taxable years.  While legally-married same-sex couples generally must file their 2013 federal income tax return using either the married filing jointly or married filing separately filing status, individuals who were in same-sex marriages may, but are not required to, file original or amended returns choosing to be treated as married for federal tax purposes for one or more prior tax years still open under the statute of limitations.

1.     Retroactive Filings and Assessments for Open Years

The Service was extremely careful in its use of terms.  Two points may be elicited from this statement:  (1) the Service only provides authority for open tax years, and (2) the Service provided inferred non-assessment guidance as to such open years. 

With respect to the open tax years, the Service gives credence to the proposition that an unconstitutional determination renders a statute as inoperative as if it had never been passed and never existed so as to be void ab initio.  Such a determination would allow a taxpayer to file amended returns for such prior years based on the law as it now exists as to such time period, i.e., as if the applicable statute were not then in existence.  This is to be contrasted by the repeal of a statute without retroactive effect – in that instance, the statute was valid for such prior years so the ability to claim a refund in the absence of such statute should not be present.

With income taxes, many same-sex married taxpayers may actually owe additional taxes if they were required to file retroactive returns reflecting a married status.  The Service was obviously cognizant of this when it promulgated its “optional” amended return provision (the “Optional Requirement”).  Query, though, whether this was a faux pas by the Service.

By its Optional Requirement, the Service infers that if taxpayers would actually owe more in taxes by changing their status to “married,” they are not required to file an amended return and, presumably, pay any additional taxes.  With respect to amended returns, there is no current requirement under the Code or Treasury Regulations for a taxpayer to file an amended tax return;[13] the primary reference is a statement contained in the Treasury Regulations stating that, in certain circumstances, a taxpayer “should” file an amended income tax return.[14]  However, with respect to the affirmative statement that taxpayers are not required to file amended returns, by negative inference the Service is also stating that it cannot assess in any such prior year based on the marital status. 

The pool of taxpayers affected by the Windsor decision is seemingly small when compared to the pool of total potential taxpayers.  Thus, decisions in light of the Windsor opinion are generally academic when applied to the population at large.  The Service’s actions, however, now become precedent, so query whether it would be bound by its inference of non-assessment.  Consider in the near future if another provision affecting tax statutes is determined to be unconstitutional, except such tax statutes affect a much larger sample size of the taxpaying population.  If the Service then wished to retroactively assess a specific taxpayer affected by such determination because such taxpayer engaged in an abusive transaction previously protected by the now-unconstitutional statute, it might be prevented from any assessment based on its actions with respect to same-sex married taxpayers. 

While there are certainly arguments as to why the Service might not be so bound, perhaps the better position for the Service in IR-2013-72 would have been to remain silent on any requirement (for or against) to file returns and only state that a taxpayer may wish to file an amended return.  In keeping with a fairness approach to retroactive assessments, the Service could have retained this power but have privately determined that it would not pursue such assessments.  Such a position would have completely preserved its right to determine if enforcement of a future unconstitutionality is warranted.[15]

2.     What About Closed Years?

As stated above, for most taxpayers, retroactive filings of income tax returns could actually increase the income tax liability, so the decision whether to file amended returns can only be determined after running some comparative financial analysis.  However, with respect to estate or gift tax returns, the decision is crystal clear.  Any such return filed prior to the Windsor decision on account of a gift or a devise to a same-sex spouse necessarily resulted in either the use of applicable exclusion amount or the payment of transfer taxes. If the tax year is open, IR-2013-72 is clear that amended returns can be filed. However, what if the tax year is closed under the applicable statute of limitations?  Should the unconstitutionality cause the year to be re-opened?

The Service was silent on this position, which is, from the Service’s perspective, the proper course of action.  However, suppose that in Example 1 above, the year that Gob purchases the property and places it in joint names with Tobias is not 2013 but is 2006.  Assuming that Gob had not made any prior taxable gifts, based on 2006’s maximum applicable exclusion amount of $2,000,000 and top transfer tax rate of 46%, Gob would have paid federal gift taxes of $1,380,000.  It is not unreasonable to assume that, based on the void ab initio theory, Gob is none too pleased to know that the gift taxes were technically improperly paid and that he has no recourse because tax year 2006 is a closed year.  One would presume that there actually exists a taxpayer in Gob’s shoes who has already consulted with tax counsel about fighting this issue.

As previously advocated by the author in his commentary, “DOMA: What If Unconstitutionality Becomes a Reality?”,[16] the law is likely on the side of the Service in that, courtesy of the ability to file for a protective claim for refund, the Code provides an adequate post-deprivation remedy and therefore the unconstitutionality of § 2 of DOMA is not sufficient to overcome the applicable statute of limitations.  However, as also advocated in said article, a “remoteness” test as to unconstitutionality should be applied as a factor to re-open the statute of limitations. 

Under this approach, as to Gob, (a) was it reasonable for him to assume that, when the statute of limitations on his 2006 gift tax return ran in 2010 (assuming a timely filed Federal gift tax return), § 2 of DOMA would be held to be unconstitutional as near in the future as June 2013 so that he should have filed for a protective claim for refund, or (b) was the likelihood of such unconstitutionality so remote that the filing of a protective claim for refund would have been a waste of everyone’s time, including that of the Service for processing the forms.  Clearly, as to DOMA, when one considers that only 13 months passed from the Southern District of New York’s trial court decision in Windsor to the United States Supreme Court’s decision, “remoteness” must and should play an important role in any determination for a refund of DOMA-paid taxes.

Conclusion:

Much was decided by the Service in both Rev. Rul. 2013-17 and IR-2013-72, but some questions remain unanswered.  Further, one position taken by the Service could have future ramifications in the event of a future as-yet-unknown tax statute unconstitutional determination.  Despite all of this discussion, we have most likely not heard the last from the Service on this issue as Rev. Rul. 2013-17 states that the Service may provide additional guidance on this subject and on the application of Windsor with respect to Federal tax administration, and other agencies may provide guidance on other Federal programs that they administer that are affected by the Code.  In other words, this is not the end of the story. 

 

HOPE THIS HELPS YOU HELP OTHERS MAKE A POSITIVE DIFFERENCE!

 

George D. Karibjanian

 

CITE AS:

LISI Estate Planning Newsletter #2137 (September 3, 2013) at http://www.LeimbergServices.com   Copyright 2013 Leimberg Information Services, Inc. (LISI). Reproduction in Any Form or Forwarding to Any Person Prohibited – Without Express Permission.

CITES: 

Revenue Ruling 2013-17; IR-2013-72

CITATIONS:

 

[1]  Estate Planning Newsletter #2118 (July 23, 2013).

[2] References to “Code” shall be to the Internal Revenue Code of 1986, as amended.

[3] See generally Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988); Rust v. Sullivan, 500 U.S. 173 (1991), and United States v. X-Citement Video, Inc., 513 U.S. 64 (1994).

[4] Query of whether this is a harbinger of changes in other Federal laws?  Consider that all of the following rely on the State of Residence for final determination:  28 C.F.R. § 32.3 (2013) (Federal regulations pertaining to Public Safety Officers' Death, Disability, and Educational Assistance Benefit Claims); 20 C.F.R. § 222.11(a)(2) (2013) (Federal regulations pertaining to the Railroad Retirement Board and the determination of the marriage relationship); Family Medical Leave Act Rights – U.S. Department of Labor Wage and Hour Division Fact Sheet #28F, released August 9, 2013 (determining that FMLA rights are only applicable if the State of Residence is a Recognition State); and SSI Internal Notice GN 00210 Basic, released August 9, 2013 (stating that SSI claims for same-sex spouses residing in Non-Recognition States will continue to be stayed pending further governmental action).

[5] Unless otherwise stated, code section references shall be to the Code.

[6] Supreme Court Justice Elena Kagan may beg to differ with this statement.  See Response of Justice Elena Kagan during the Oral Argument of Paul D. Clement, counsel for the Respondent Bipartisan Legal Advisory Group of the United States, in United States v. Windsor, argued March 27, 2013, Transcript p. 74.

[7] Rev. Rul. 67-442, 1967-2 CB 65.

[8] For example, as to community property, § 1014(b)(6) provides for special basis adjustments upon death for property owned as “community property,” and as to homestead property, Treas. Reg. §20.2056(b)(-7(g) states that the provisions of local law must be taken into account in determining whether the marital deduction applies such that, in Estate of Henry Kyle, 94 T.C. 829 (1990), under Texas’s homestead law, the fact that a surviving spouse’s abandonment of the homestead property would terminate the spouse’s homestead right was sufficient to deny QTIP treatment to the estate.

[9] Rev. Rul. 58-66, 1958-1 CB 60.

[10] Response of Justice Samuel A. Alito, Jr. during the Oral Argument of Paul D. Clement, counsel for the Respondent Bipartisan Legal Advisory Group of the United States, in United States v. Windsor, argued March 27, 2013, Transcript pp. 76-77.

[11] See generally Haw. Rev. Stat. Ch. 572B.

[12] See generally Wis. Stat. Ch. 770; as to intestate inheritance, Wis. Stat. § 852.01(1)(a) and as to joint property, Wis. Stat. § 700.19(2m).

[13] See, e.g., Harrington, as updated by Moore, Selected Procedural Issues in Estate and Gift Tax Controversies, ALI-ABA Course of Study, Estate Planning in Depth, 651 (June 2006). 

[14] See Treas. Reg. §1.461-1(a)(3) (where a taxpayer ascertains that an item should have been included in gross income in a prior taxable year, the taxpayer should file an amended return).

[15] For additional thoughts on this issue, see George D. Karibjanian, Guidance on Effect of the United States Supreme Court’s Decision in Windsor v. United States, submitted to the Department of Treasury July 18, 2013, released July 23, 2013.

[16] Estate Planning Newsletter #1986 (July 16, 2012).