Following the U.S. Supreme Court’s recent decisions that the federal government recognize and state allow same sex marriage (Windsor, 133 S. Ct. 2675 (2013); Obergefell v. Hodges, 135 S. Ct. 2584 (2015)), the IRS last month issued proposed regulations under Sec. 7701 amending the definitions of “spouse” and “husband and wife” to reflect those historic decisions (REG-148998-13).
Under the regulations proposed by the IRS, for federal tax purposes, the terms “spouse,” “husband,” and “wife” are defined as an individual lawfully married to another individual. “Husband and wife” is defined as two individuals lawfully married to each other. Both definitions are applied without regard to the sex of the taxpayers. The IRS is, in practice, already interpreting these terms under Rev. Rul. 2013-17 to include same sex spouses.
The IRS has reported that there are over 200 provisions in the Code and regulations that include the terms “spouse,” “marriage,” “husband and wife,” “husband,” and “wife.”
The proposed rules also includes a provision that a marriage of two individuals is recognized for federal tax purposes if the marriage would be recognized by any state, possession, or territory of the United States. According to the preamble of the proposed regulations, this means that whether a marriage in a foreign jurisdiction would be recognized depends on whether it is recognized in at least one state, possession, or territory.
The rules also clarify that taxpayers who are not married but have entered into registered domestic partnerships, civil unions, or similar relationships will not be treated as married, which the IRS believes will permit taxpayers who choose not to be married to have that choice respected for tax purposes.
The regulations will apply when they are published as final in the Federal Register. Once the regulations are finalized, they will make Rev. Rul. 2013-17 obsolete.
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