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Defense of Marriage Act: DOL Recognizes Same-Sex Marriages & IRS Issues Procedures for Employment Tax Adjustments

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September 2013

DOL Recognizes Same-Sex Marriages

The Employee Benefits Security Administration (EBSA) issued Technical Release 2013-04 recognizing all legal same-sex marriages for purposes of ERISA and related rulings and regulations. The technical release implements the Supreme Court’s Windsor ruling and follows recent IRS guidance on this issue (see our August Monthly Benefits Update) providing that “spouse” means any individual lawfully married under the law of a jurisdiction having the legal authority to sanction marriages (including U.S. states, territories, and possessions, as well as foreign countries) and that “marriage” includes any same-sex marriage legally recognized as marriage under such law—even if the couple lives in a state that does not recognize same-sex marriage. On the other hand, non-marriage relationships such as domestic partnerships and civil unions are not recognized, even if state law grants those relationships marriage-equivalent rights. The technical release further indicates that EBSA intends to issue additional guidance on potential retroactivity issues and other specific provisions.

IRS Issues Procedures for Employment Tax Adjustments
The IRS has issued simplified procedures that employers may use, if they wish to seek tax reimbursements, to correct employment tax (FICA and federal income tax withholding) overpayments for 2013 and prior years resulting from the change in tax treatment for health and certain other benefits provided to employees’ same-sex spouses. Notice 2013-61 provides detailed rules concerning reporting obligations for employers. 

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