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.
