The Treasury Department and IRS today released for publication in the Federal Register a notice of proposed rulemaking concerning the definition of married couples for purposes of provisions in the Code.
The proposed regulations [PDF 231 KB] note that after decisions of the U.S. Supreme Court, the IRS and Treasury determined that, for federal tax purposes, marriages of couples of the same-sex are to be treated the same as marriages of couples of the opposite-sex and that prior guidance using terms such as “husband,” “wife,” and “husband and wife” are to be interpreted in a neutral way to include same-sex spouses as well as opposite-sex spouses. Therefore, today’s proposed regulations amend the current regulations under section 7701 to provide that, for federal tax purposes, the terms “spouse,” “husband,” and “wife” mean an individual lawfully married to another individual, and the term “husband and wife” means two individuals lawfully married to each other. These definitions apply regardless of the individual’s sex.
The proposed regulations also provide that a marriage of two individuals will be recognized for federal tax purposes if that marriage would be recognized by any state, possession, or territory of the United States. Under this rule, whether a marriage conducted in a foreign jurisdiction will be recognized for federal tax purposes depends on whether that marriage would be recognized in at least one state, possession, or territory of the United States.
While the proposed regulations define terms relating to marital status for federal tax purposes, today’s release states that the IRS may provide additional guidance as needed. For example, the IRS has already issued more particular guidance for employers regarding qualified retirement plans.
Lastly, for federal tax purposes, the term “marriage” does not include registered domestic partnerships, civil unions, or other similar relationships recognized under state law that are not denominated as a marriage under that state’s law; and the terms “spouse,” “husband and wife,” “husband,” and “wife” do not include individuals who have entered into such a relationship.
While some states extend all of the rights and responsibilities of marriage under state law to couples in registered domestic partnerships, civil unions, or other similar relationships, the proposed regulations note that those states intentionally determined not to denominate those relationships as marriages. Similar rules exist in some foreign jurisdictions. As explained in the preamble, treating couples in civil unions and registered domestic partnerships the same as married couples who are in a relationship denominated as marriage under state law could undermine the expectations certain couples have regarding the scope of their relationship. Further, no provision of the Code indicates that Congress intended to recognize as marriages civil unions, registered domestic partnerships, or similar relationships. Accordingly, these proposed regulations explain that the IRS will not treat civil unions, registered domestic partnerships, or other similar relationships as marriages for federal tax purposes.
© 2017 KPMG LLP, a Delaware limited liability partnership and the U.S. member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.
The KPMG logo and name are trademarks of KPMG International. KPMG International is a Swiss cooperative that serves as a coordinating entity for a network of independent member firms. KPMG International provides no audit or other client services. Such services are provided solely by member firms in their respective geographic areas. KPMG International and its member firms are legally distinct and separate entities. They are not and nothing contained herein shall be construed to place these entities in the relationship of parents, subsidiaries, agents, partners, or joint venturers. No member firm has any authority (actual, apparent, implied or otherwise) to obligate or bind KPMG International or any member firm in any manner whatsoever. The information contained in herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation. For more information, contact KPMG's Federal Tax Legislative and Regulatory Services Group at: + 1 202 533 4366, 1801 K Street NW, Washington, DC 20006.