Windsor – DOMA Notice

IRS issues more guidance on the retroactive effect of the Supreme Court’s decision in Windsor.

In U.S. v. Windsor (2013) the U.S. Supreme Court held that the Federal Defense of Marriage Act (“DOMA”) is unconstitutional. Exactly how the IRS would implement this reversal of law was left to future pronouncements by the IRS. On January 17, 2017 the IRS issued Notice 2017-15 which basically states that the Windsor decision rendered the DOMA void from the beginning and therefore actions taken to enforce that law, or procedures designed to enforce that law are retroactively revoked.

The question then is, in the face of an unconstitutional law, does the statute of limitations prevent individuals from going back to a time prior to the beginning of period of the applicable statute and seeking a revision to their taxes? In other words, does the Statute of Limitations trump the retroactive nature of the repeal of DOMA?

Two specific situations were addressed.

The first is how to treat gifts between same sex spouses that occurred prior to Windsor, as to whether the gifting spouse used up any of his or her applicable exclusion amount. The second situation is how the GST exemption might be restored when there was a pre-Windsor generational transfer, which I am not going to discuss in this blog.

As to the first issue, the IRS states that the donor-spouse’s applicable exclusion will be restored, as if the gift qualified originally for the marital exclusion from gift tax. However, the IRS will not be refunding any gift taxes paid, for which the Statute of Limitations has expired. On the other hand, although no refund will be given, the gift tax paid will be recognized for purposes of computing the estate tax.

Another issue that was tangentially included in the Notice is what happens if a gift was to a trust that would have qualified for QTIP treatment (the marital deduction), but no QTIP election was made because the law at that time didn’t provide for it between same sex spouses. The IRS has stated that they will allow the surviving spouse to make a “very late” QTIP election, but it will not be automatic. A Private Letter ruling seeking 9100 relief must be filed.

Please contact me if you have questions about the repeal of DOMA, or other estate tax related questions.

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