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Special September 15th Deadline for Same-Sex Married Couples Who Want to File as Single

By September 3, 2013

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Same-sex married couples who wish to file their 2012 federal tax returns as if they were single, unmarried persons have until September 15, 2013, to file their single returns. After September 15th, same-sex married couples will be required to file their returns as married persons.

First, some background.

On August 29, 2013, the Internal Revenue Service provided guidance for same-sex married couples on how to file their tax returns in light on the Supreme Court's decision in United States v. Windsor.  The IRS, following the Supreme Court's decision, said that "all legal same-sex marriages will be recognized for federal tax purposes." The IRS simulataneously issued Revenue Ruling 2013-17 (pdf), a news release (IR-2013-72), and updated two FAQ pages: one relating same-sex couples and another related to registered domestic partners and civil unions.

These documents provide guidance on a wide range of issues. Over the next several days, we'll look at different parts of these materials to see what's in there.

For today's post, let's start with a very intriguing date: September 16, 2013.

That's the day that the IRS will start applying the guidance found in Rev. Ruling 2013-17. "The holdings of this ruling will be applied prospectively as of September 16, 2013," the ruling says on page 13.

On that day, and going forward, same-sex married couples will be required to file their tax returns using a filing status for married persons, either married filing jointly, married filing separately, or in certain circumstances as head of household.

This implies that September 15th is the last day that the IRS will allow a person in a same-sex marriage to file as if they were unmarried (using either the single or head of household filing status).

The IRS addresses this issue in their FAQ for Same-Sex Married Couples, in Q&A 2, which I quote in full below, highlighting the really interesting part:

"Q2. Can same-sex spouses file federal tax returns using a married filing jointly or married filing separately status?

"A2. Yes. For tax year 2013 and going forward, same-sex spouses generally must file using a married filing separately or jointly filing status. For tax year 2012 and all prior years, same-sex spouses who file an original tax return on or after Sept. 16, 2013 (the effective date of Rev. Rul. 2013-17), generally must file using a married filing separately or jointly filing status. For tax year 2012, same-sex spouses who filed their tax return before Sept. 16, 2013, may choose (but are not required) to amend their federal tax returns to file using married filing separately or jointly filing status. For tax years 2011 and earlier, same-sex spouses who filed their tax returns timely may choose (but are not required) to amend their federal tax returns to file using married filing separately or jointly filing status provided the period of limitations for amending the return has not expired. A taxpayer generally may file a claim for refund for three years from the date the return was filed or two years from the date the tax was paid, whichever is later. For information on filing an amended return, go to Tax Topic 308, Amended Returns, at http://www.irs.gov/taxtopics/tc308.html." [Emphasis added.]

Notice something interesting here? A same-sex married couple could file two single returns before September 16, 2013. And what if the couple does file two single returns before September 16? Then the couple "may choose (but are not required) to amend their federal tax returns using married filing separately or jointly filing status."

The IRS has given same-sex married couples a rare opportunity to pick their filing status for their 2012 tax returns. Commenting on these FAQs, Spidell Publishing released the following "flash e-mail" discussing this special deadline:

"The FAQs make it clear that same-sex married couples must file extended 2012 returns by September 15, 2013, to file as single."

Same-sex couples can, between now and September 15th, optimize their 2012 federal tax return by choosing either to file two single returns, or to file one return using the married-filing-jointly status, or to file two returns using the married-filing-separately status. But if you want to file as if you are unmarried, that return will have to be filed with the IRS no later than September 15, 2013. After that, the option to file as single will no longer be a valid alternative.

Note: September 15, 2013, is a Sunday. For taxpayers who will be mailing in their 2012 returns, the returns will need to be postmarked on or before September 15th, which means the returns will need to be postmarked no later than Saturday, September 14th.

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