A recent decision by a federal appeals court regarding the Defense of Marriage Act (DOMA) suggests same-sex couples may want to file something known as a protective refund claim with the Internal Revenue Service in the event the Supreme Court overturns the law. In Windsor v United States, the court allowed an estate tax marital deduction to the surviving spouse of a same-sex couple, striking down the DOMA definition of marriage as unconstitutional.
DOMA is a federal law that defines marriage as the legal union of one man and one woman. This means that same-sex marriages are not recognized for federal purposes, including insurance benefits for government employees, Social Security survivor benefits, and the filing of joint tax returns. The constitutionality of which is expected to eventually be considered by the Supreme Court.
Married same-sex couples hoping to benefit from a challenge to DOMA shouldn’t wait for a final decision before filing a “Protective Refund Claim” under with the Internal Revenue Code Section 254, as the statute for filing amended returns only allows three years from the timely filing of the original return. The deadline for amending the 2009 returns will be closing in 2013.
In case the U.S. Supreme Court strikes down DOMA and to preserve your potential refund, same-sex couples who are married and, those who are in domestic union States, should file their claims to protect their right to refunds now. This will keep open those claims for years that are closing, until this matter is resolved by the Supreme Court.