The Supreme Court ruling on DOMA will not be out until June 2013. Tax year 2009 closes for refunds next week. Certain same-sex couples who had taxable income on the federal return created by tax-free state employer benefits should file for a contingent refund before the clock runs at. This type of benefit would have triggered income tax and FICA taxes.
How do you do this? File a 1040-X and in the explanation field put "changing two S returns to MFJ contingent on Supreme court ruling on DOMA"? For line 7 wages the original includes the benefits for spouse, so just subtract that for the final value? And how to handle the social security tax on this amount?
Do note the some would be hit by a marriage penalty, namely that if both are working and making about 85k or more, then the the MFJ return would typically have more tax than 2 S returns.
The Supreme Court doesn't always make their rulings retroactive. If they overturn DOMA they may or they may not, but my guess is that it will be prospective only.
two S returns to MFJ contingent on Supreme court ruling on DOMA"? For line 7 wages the original includes the benefits for spouse, so just subtract that for the final value? And how to handle the social security tax on this amount?
working and making about 85k or more, then the the MFJ return would typically have more tax than 2 S returns.
For social security and medicare taxes paid on the taxable employee benefits, I would file Form 843. The explanation would be that employer provided benefits should have been tax free. No need to enter anything else. You just need to get the request filed by 4/15/13.
For income taxes. that requires a 1040X. However, one would need to first recalculate the 2009 returns as either married separate or married joint, factor in the FICA adjustment above and see if it is worth doing. If it is... then file the 1040X and change single to MFS or MFJ as needed. In the explanation field I would just say you were changing filing status to conform with tax law. The whole idea is to just get the forms filed by 4/15/13.
If the decision by USSC upholds DOMA or somehow does not uphold DOMA and does not allow for changes to prior years (I don't see how this would be possible.) then the filings are worthless. If on the other hand, DOMA is tossed out and prior years are open, you have covered your bases.
A good, perhaps preferred, option is to prepare and file a _protective_ claim for refund using Form 843, Claim for Refund and Request for Abatement. Across the top of the form write, "Protective Claim for Refund Pending Outcome of United States v. Windsor." That way the claim will be timely filed and the IRS will know not to process the claim until after the Supremes reach a decision.
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