FAQs about Same Sex Marriage and Income Tax Laws, Part 2

Following is Part 2 in a series of articles on frequently asked questions about federal income tax laws and same sex marriage as addressed by the IRS.  Part 1 of this FAQ at FAQs about Same Sex Marriage and Income Tax Laws, Part 1.

Can one partner in a same sex married couple use the standard deduction while the other partner uses itemized deductions?

No, regardless of the filing status used by the couples, if one member of the couple chooses to claim itemized deductions, the other member of the couple cannot elect to take the standard deduction.  This limit on a given couple attempting to use both itemized deductions and the standard deduction is the same whether it is a same sex or a heterosexual couple.

If a taxpayer adopts the child of his or her same sex spouse, can the taxpayer claim the adoption credit.

No, the taxpayer cannot claim the adoption credit when adopting the child of his or her same sex spouse.  The IRS does not consider the child of a spouse, whether a same sex spouse or a heterosexual spouse, an eligible child for purposes of claiming the adoption credit.

In general, do provisions of the federal income tax code apply to same sex married couples in the same manner as they do to heterosexual married couples?

Yes, in the eyes of the IRS and its application of federal income tax code, same sex married couples and heterosexual married couples receive equal treatment concerning the federal income tax code and how it applies to a married couple.

If a sole proprietor employs his or her same sex spouse in his or her business, can the sole proprietor claim a refund on Social Security, Medicare, and Federal Unemployment Tax Act (FUTA) taxes paid pertaining to any wages given to the same sex spouse?

When one member of a same sex married couple works in the employment of the other member of a same sex married couple, the spouse is not considered an employee in the eyes of the IRS for computation of FUTA.  Therefore, the sole proprietor can claim a refund for any FUTA taxes paid related to services rendered by his or her same sex spouse for previous tax years where the option to amend his or her tax return is still available.

However, if the same sex spouse provided services to his or her spouse as an employee in his or her sole proprietorship, those services are subject to Social Security and Medicare taxes.  Therefore, the sole proprietor cannot claim a refund for any Social Security or Medicare taxes paid previously for a same sex spouse.

What are the rules for qualified retirement plans in relation to same sex spouses?

Qualified retirement plans must consider a same sex spouse as a spouse when it comes to meeting any tax requirements related to a qualified retirement plan.  Qualified retirement plans must consider a same sex spouse as a spouse for plan purposes when the union was entered into in a legal manner, even if the same sex married couple now live in a state that does not recognize same sex marriages.  Same sex couples in a civil union or domestic partnership is not considered as a married couple for purposes of tax considerations related to qualified retirement plans.

Who should I talk to if I have other questions about federal income tax laws and same sex marriage?

If you have other questions on this subject, your should speak to a tax attorney about your questions and how federal income tax laws apply to you.  A tax attorney will have the training and experience to apply the internal revenue code and other tax laws to same sex married couples and help them file state or federal income tax returns.

You can speak with a tax attorney by completing the form on this web site or calling the telephone number at the top of this page.  The initial consultation with a tax attorney is free of charge.  All conversations with your tax attorney are confidential.

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by Mark Johnston

Mark has been a contributor to legal web sites related to bankruptcy, tax, and criminal law since 2011. He has an Accounting degree from Texas A&M University.