HHS announces first guidance implementing Supreme Court’s decision on the Defense of Marriage Act

Today, the Department of Health and Human Services (HHS) issued a memo clarifying that all beneficiaries in private Medicare plans have access to equal coverage when it comes to care in a nursing home where their spouse lives.  This is the first guidance issued by HHS in response to the recent Supreme Court ruling, which held section 3 of the Defense of Marriage Act unconstitutional.

“HHS is working swiftly to implement the Supreme Court’s decision and maximize federal recognition of same-sex spouses in HHS programs,” said HHS Secretary Kathleen Sebelius.  “Today’s announcement is the first of many steps that we will be taking over the coming months to clarify the effects of the Supreme Court’s decision and to ensure that gay and lesbian married couples are treated equally under the law.”

“Today, Medicare is ensuring that all beneficiaries will have equal access to coverage in a nursing home where their spouse lives, regardless of their sexual orientation,” said Centers for Medicare & Medicaid Services (CMS) Administrator Marilyn Tavenner.  “Prior to this, a beneficiary in a same-sex marriage enrolled in a Medicare Advantage plan did not have equal access to such coverage and, as a result, could have faced time away from his or her spouse or higher costs because of the way that marriage was defined for this purpose.”

Under current law, Medicare beneficiaries enrolled in a Medicare Advantage plan are entitled to care in, among certain other skilled nursing facilities (SNFs), the SNF where their spouse resides (assuming that they have met the conditions for SNF coverage in the first place, and the SNF has agreed to the payment amounts and other terms that apply to a plan network SNF).  Seniors with Medicare Advantage previously may have faced the choice of receiving coverage in a nursing home away from their same-sex spouse, or dis-enrolling from the Medicare Advantage plan which would have meant paying more out-of-pocket for care in the same nursing home as their same-sex spouse.

Today’s guidance clarifies that this guarantee of coverage applies equally to all married couples.  The guidance specifically clarifies that this guarantee of coverage applies equally to couples who are in a legally recognized same-sex marriage, regardless of where they live.
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Same-Sex Married Couples Finally Get Some Certainty

Treasury and IRS Announce That All Legal Same-Sex Marriages Will Be Recognized For Federal Tax Purposes; Ruling Provides Certainty, Benefits and Protections Under Federal Tax Law for Same-Sex Married Couples

IR-2013-72, Aug. 29, 2013

WASHINGTON — The U.S. Department of the Treasury and the Internal Revenue Service (IRS) today ruled that same-sex couples, legally married in jurisdictions that recognize their marriages, will be treated as married for federal tax purposes. The ruling applies regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that does not recognize same-sex marriage.

The ruling implements federal tax aspects of the June 26 Supreme Court decision invalidating a key provision of the 1996 Defense of Marriage Act.

Under the ruling, same-sex couples will be treated as married for all federal tax purposes, including income and gift and estate taxes. The ruling applies to all federal tax provisions where marriage is a factor, including filing status, claiming personal and dependency exemptions, taking the standard deduction, employee benefits, contributing to an IRA and claiming the earned income tax credit or child tax credit.

Any same-sex marriage legally entered into in one of the 50 states, the District of Columbia, a U.S. territory or a foreign country will be covered by the ruling. However, the ruling does not apply to registered domestic partnerships, civil unions or similar formal relationships recognized under state law.

Legally-married same-sex couples generally must file their 2013 federal income tax return using either the married filing jointly or married filing separately filing status.

Individuals who were in same-sex marriages may, but are not required to, file original or amended returns choosing to be treated as married for federal tax purposes for one or more prior tax years still open under the statute of limitations.

Generally, the statute of limitations for filing a refund claim is three years from the date the return was filed or two years from the date the tax was paid, whichever is later. As a result, refund claims can still be filed for tax years 2010, 2011 and 2012. Some taxpayers may have special circumstances, such as signing an agreement with the IRS to keep the statute of limitations open, that permit them to file refund claims for tax years 2009 and earlier.

Additionally, employees who purchased same-sex spouse health insurance coverage from their employers on an after-tax basis may treat the amounts paid for that coverage as pre-tax and excludable from income.

How to File a Claim for Refund

Taxpayers who wish to file a refund claim for income taxes should use Form 1040X, Amended U.S. Individual Income Tax Return.

Taxpayers who wish to file a refund claim for gift or estate taxes should file Form 843, Claim for Refund and Request for Abatement. For information on filing an amended return, see Tax Topic 308, Amended Returns, available on IRS.gov, or the Instructions to Forms 1040X and 843. Information on where to file your amended returns is available in the instructions to the form.

Future Guidance

Treasury and the IRS intend to issue streamlined procedures for employers who wish to file refund claims for payroll taxes paid on previously-taxed health insurance and fringe benefits provided to same-sex spouses. Treasury and IRS also intend to issue further guidance on cafeteria plans and on how qualified retirement plans and other tax-favored arrangements should treat same-sex spouses for periods before the effective date of this Revenue Ruling.

Other agencies may provide guidance on other federal programs that they administer that are affected by the Code.

Revenue Ruling 2013-17, along with updated Frequently Asked Questions for same-sex couples and updated FAQs for registered domestic partners and individuals in civil unions, are available today on IRS.gov. See also Publication 555, Community Property.

Treasury and the IRS will begin applying the terms of Revenue Ruling 2013-17 on Sept. 16, 2013, but taxpayers who wish to rely on the terms of the Revenue Ruling for earlier periods may choose to do so, as long as the statute of limitations for the earlier period has not expired.

CA Gov. Brown Could Teach NV Gov. Sandoval a Few Things

SACRAMENTO – Governor Edmund G. Brown Jr. today issued the following statement on the United States Supreme Court ruling on Proposition 8 (Hollingsworth v. Perry):

“After years of struggle, the U.S. Supreme Court today has made same-sex marriage a reality in California. In light of the decision, I have directed the California Department of Public Health to advise the state’s counties that they must begin issuing marriage licenses to same-sex couples in California as soon as the Ninth Circuit confirms the stay is lifted,” said Governor Brown.

The effect of today’s U.S. Supreme Court ruling is that the 2010 federal district court’s decision that Proposition 8 is unconstitutional is left intact and the law cannot be enforced.

In response, the Governor has directed the California Department of Public Health to advise county officials today that the district court’s injunction against Proposition 8 applies statewide and that all county clerks and county registrar/recorders must comply with it. However, same-sex Californians will not be able to marry until the Ninth Circuit Court of Appeals confirms the stay of the injunction, which has been in place throughout the appeals process, is lifted.

In preparation for this outcome, Governor Brown sought an opinion from California Attorney General Kamala D. Harris on whether the state, through the California Department of Public Health, can advise county clerks and registrar/recorders that they are bound by the federal district court’s ruling that Proposition 8 is unconstitutional.

The Attorney General concluded that the California Department of Public Health “can and should” instruct county officials that they “must resume issuing marriage licenses to and recording the marriages of same-sex” couples. The Department will issue another letter to county officials as soon as the Ninth Circuit Court of Appeals confirms the stay is lifted.

The Department of Public Health letter to county officials can be found here.

The Attorney General’s letter to Governor Brown can be found here.

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Advocacy: Please Urge Your NV Assemblyperson to Support Marriage Equality

We need you to act right now and send a message to your Nevada Assemblyperson urging them to support legislation that would begin the multi-year process to repeal the state’s ban on same-sex marriage and allow all couples in Nevada the right to marry the person they love.

Support for same-sex marriage has grown since the unfortunate “policy” ban was passed in 2002 and thus enshrined in our state’s Constitution. More than a decade has passed since that infelicitous event.  It’s now time to fix that and for our state lawmakers to honor love, commitment, and all families in Nevada.

In Nevada,”marriage equality” is not just a “social” issue, it’s also an economic issue.  As the “Marriage Capital of the World”  — our economy benefits from extensive tourism dollars of couples traveling to our state to share their vows and celebrate their union.  Economically, we should never enshrine social policy in NV’s Constitution that conflicts with economic policy and demotes our status to “Nevada—the Marriage Capital for straight, heterosexual couples only.”  “Policy” should be handled in the purview of the Legislature such that it can be addressed effectively as mores within our society change over time.

In the next couple of days, the Assembly Committee on Legislative Operations and Elections is set to consider legislation that would begin the multi-year process to repeal the state’s constitutional ban on same-sex marriage and allow all couples in not just in Nevada, but from across our nation and from all over the world, to marry in our State. Last month, the state senate took the first step in making marriage equality a reality by passing this important piece of legislation.

For full marriage equality in Nevada, the legislature will need to pass the same bill in 2015, placing it on the 2016 election ballot where Nevada voters will have the opportunity to honor the thousands of loving, committed couples in the state. Your voice is important and could help make the difference.

As I said, the state Senate has already approved this legislation. Your voice could help make the difference in moving it through the Assembly. Please send a message to your State Assemblyperson TODAY urging him/her to pass the bill.

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