IRS Provides New Tax Guidance for Same-Sex Couples

The IRS has revised its guidance for same-sex domestic partners, same-sex individuals in civil unions, and other same-sex couples with marriage recognized by state law. This guidance provides direction for same-sex couples on benefits and IRS tax filings.

Specifically,

  • Same-sex partners may not file using a married filing separately or jointly filing status.
  • A taxpayer cannot file as head of household if the taxpayer’s only dependent is his or her same-sex partner.
  • If same-sex partners have a child together, either parent, but not both, may claim a dependency deduction for the qualifying child. If both parents claim a dependency deduction for the child on their income tax returns, the IRS will treat the child as the qualifying child of the parent with whom the child resides for the longer period of time.
  • A same-sex partner may itemize or claim the standard deduction regardless of whether his or her partner itemizes or claims the standard deduction.
  • If a same-sex couple adopts a child together, one or both of the same-sex partners may qualify for the adoption credit, but they may not both claim credit for the same qualified adoption expenses, and neither same-sex partner may claim more than the amount of expenses that he or she paid or incurred.
  • If a same-sex partner is the stepparent of his or her partner’s child under the laws of the state in which the partners reside, then the same-sex partner is the stepparent of the child for federal income tax purposes.

The IRS also provides specific guidance for same-sex domestic partners who reside in community property states.

  • Registered domestic partners must each report half the combined community income earned by the partners. In addition to half of the community income, a partner who has income that is not community income must report that separate income.
  • Half of the income, deductions, and net earnings of a business operated by a registered domestic partner must be reported by each registered domestic partner on a Schedule C (or Schedule C-EZ).
  • Registered domestic partners are each entitled to half of the credits for income tax withholding from the combined wages of the registered domestic partners.
  • Community property laws are not taken into account in determining earned income for purposes of the dependent care credit, the refundable portion of the child tax credit, the earned income credit, and the making work pay credit.

This new guidance provides direction for domestic partners and same-sex couples as more and more states are weighing in on the federal Defense of Marriage Act.

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