In October 2013, the Oregon Department of Justice (“DOJ”) issued a decision to allow State agencies to recognize out of state same sex marriages. (See my previous blog posting on October 8). Now, effective January 1, 2014, a new Oregon Administrative Rule requires all State agencies to recognize same sex marriages validly performed in other jurisdictions. OAR 105-010-0018. This rule follows the reasoning of the DOJ’s decision that the state must recognize those same-sex marriages in order to comport with the United States Constitution. The rule expires on June 30, 2014 and is intended to give agencies time to adopt specific rules and procedures implementing this mandate prior to the expiration date. We expect to see agencies come out with their new rules and procedures over the next six months, which should provide more clarity for same-sex couples in Oregon.
As many of our clients know, the United States Supreme Court is hearing two cases related to the federal Defense of Marriage Act (“DOMA”) next week. The high Court will hear oral arguments in Windsor v. United States on Wednesday, March 27, 2013. If the plaintiff, Edie Windsor, prevails, she will be entitled to a $363,000 refund (plus interest) of estate tax imposed on the estate of her spouse Thea Spyer, who died in 2009. Ms. Spyer’s estate incurred this tax expense because DOMA dictates that the one hundred percent spousal exemption under IRC section 2056(a) is unavailable to same sex couples.
The deadline to file individual income tax returns was on Wednesday, April 15 for 2009. Even if Ms. Windsor prevails and DOMA is ruled unconstitutional, we do not anticipate that the Court will issue an opinion before April 15, 2013, when the statute of limitations to file amended returns for tax year 2009 expires. Same sex couples who were legally married in 2009 under the laws of their state and would have been entitled to a tax refund in that year if they were eligible for the “married filing jointly” status, may consider filing a protective refund claim for that period. The IRS’s policy where there is ongoing litigation or the law is uncertain, is to collect the properly filed protective refund claims and either pay them or deny them when the law in the applicable area is settled. Even if Ms. Windsor does not prevail or if her case is dismissed on procedural grounds, such filings may eventually result in significant payments if DOMA is ultimately held unconstitutional. These refunds would be paid with interest calculated from the original due date of the return.