Skip to content

MarriageSame Sex Couples: How to Preserve The Right To File An Amended “Married” Federal Tax Return

December 4, 2012

Though same sex marriage is legal in New York, because of the Defense of Marriage Act (“DOMA”), the federal government will not recognize it. It is widely believed that the United States Supreme Court will hear arguments on the constitutionality of DOMA, but, unless and until DOMA is declared unconstitutional and same sex marriage is recognized by the federal government, same sex couples cannot file a joint tax return.       

If same sex marriage is recognized by the federal government, same sex couples may be eligible to file an amended return to change their filing status.   The problem is, however, that taxpayers are only permitted to amend their returns for the prior three tax years or two years since paying the tax.     For any tax returns filed outside of the limitation period, the tax payers may just be out of luck.

Same sex filers can protect their rights by filing a “Protective Claim for Refund.” As pointed out by Moskowitz LLP, “A Protective Claim for Refund may be advisable if your right to a tax refund is contingent on future events and may not be determinable until after the time period for filing a claim for refund expires.”    

Provided the protective return was timely filed and the deductible amount is not determined until the expiration of the limitation, the IRS may refund the over paid tax resulting from the change in filing status.


The information contained in this website has been provided for general informational purposes only and DOES NOT constitute legal advice; there is no warranty on this information and it does not in any way constitute an attorney-client relationship. Prior results do not guarantee a similar outcome. All individuals are encouraged to seek independent counsel for advice regarding their specific situation and facts. 


Further, e-mails or other correspondence with any member of this firm does not create an attorney-client relationship without the explicit written agreement between the parties

Call Now Button