CA Same Sex Marriage - Amending 2011 - New law

[ed_accountant]

Regarding the new federal Same sex law effective 9/16/13.

http://www.irs.gov/uac/Newsroom/Treasury-and-IRS-Announce-That-All-Legal-Same-Sex-Marriages-Will-Be-Recognized-For-Federal-Tax-Purposes;-Ruling-Provides-Certainty,-Benefits-and-Protections-Under-Federal-Tax-Law-for-Same-Sex-Married-Couples

I need to confirm the following since this is not my area of expertise:

I have CA same sex client that were a registered domestic partners in CA for year 2011 but not officially married. This couple were officially married after year 2011 since marriage was not available by law in year 2011.

This client wants to amend year 2011 and file a joint return based on the new law.

http://www.irs.gov/uac/Answers-to-Frequently-Asked-Questions-for-Same-Sex-Married-Couples

Federal determines marriage based on State law. Are the CA registered domistic partners considered married by CA law?

Thanks

[Mr. Pencil]

Are the CA registered domestic partners considered married by CA law?

No. As your own link says, "the ruling does not apply to registered domestic partnerships," Some people expect that to change, but it will probably have to wait for a court case. Or your own clients could be the court case!

Personally, I don't believe it will change. California law has always maintained a very big distinction between marriage, which in the past was only for heterosexuals, and RDP which included both same-sex and some opposite-sex couples. Now the limitation has been reversed, so either couple can get married but only certain opposite-sex couples can choose RDP. In fact, one of the purposes of RDP is to avoid certain third-party legal issues of marriage, especially in terms of pensions and support payments from a prior marriage. That's a distinction which remains as definite as male and female, so I don't think your clients will ever have any legal basis for their position that California RDP was equivalent to marriage in 2011.

[ed_accountant]

Thank you Mr Pencil, I appreciate your help!

[joanmcq]

It's not true that same sex couples can no longer register as RDPs. My assistant just did this past November. But no, the IRS does not recognize them as married although CA does. So you'd still file two single (or single/HOH if applicable) federal returns under community property rules, and CA as either MFS or MFJ.

There is quite a bit of litigation and requests for clarification going on regarding RDPs and civil unions. You could file a protective claim for the 2011 year as joint in case the rules change in the future. I did so for several of my married clients and the claims for 2008 & 2009 are just starting to be processed.

[ed_accountant]

Thanks Joan,

So, they cannot amend 2011 but since they are legally CA married for year 2013, they can file MFJ for Federal and CA for 2013.

Thanks

[joanmcq]

Right