President Obama and Attorney General Holder have announced that they will stop defending the Defense of Marriage Act (DOMA) in court. But, they also say that executive agencies will continue to enforce the law. What does this mean for taxpayers who want to file tax returns claiming their marital status is valid?
I blogged about this on February 23. Amy Elliott has written a nice summary for Tax Notes about the various tax issues affected by DOMA. She quotes me as advising same-sex couples to file amended returns filing jointly. I do advise that for couples who would benefit from a joint filing. The reason you should only file jointly on an amended return is that DOMA is still in effect and your original return should reflect current law. The tax cases that are being litigated now to challenge DOMA all involve taxpayers who filed amended returns or claims for refund, claiming valid marital status. The IRS rejected those claims and that gave the taxpayers standing to sue in federal court. If you want to join them in federal court, you too can file a claim via an amended return. Once the IRS rejects your claim, you have two years to file suit. See IRC §6532.
If your position is that you are due a refund because DOMA is unconstitutional, you may not want to go to court to litigate that issue yourself. There are 11 cases already in court litigating that issue. See Elliott. But you may want to file a claim for refund before the statute of limitations runs on your right to do so. Normally you have 3 years from April 15 of the year in which you filed your original return. Thus a 2007 tax return can be amended or a claim for refund for that year can be filed by April 15, 2011.
If you want to protect yourself from the running of the statute of limitations, and wait to see whether in fact DOMA is struck down by the courts, you might consider filing a protective claim for refund. A protective claim should be filed using Form 843, a copy of which is available here. You would state that the refund claim is based on the unconstitutionality of DOMA, an issue pending in current litigation. Presumably the IRS would decide to hold the claim and not act on it until the issue has been finally resolved in court. For more details about protective claims, see GCM 38786, relevant portions of which are contained here.
You should also consult your tax adviser about this process.
