The Supreme Court is set to review the Defense of Marriage Act ("DOMA") soon. In my opinion, DOMA violates at least three separate provisions of the U.S. Constitution. Most obviously, DOMA clearly violates the explicit guarantee of equality contained in the Equal Protection Clause. In addition, DOMA violates the Due Process Clause insofar as it deprives a significant minority of Americans of the constitutional right of marriage. Finally, DOMA arguably violates the First Amendment's guarantees of religious freedom insofar as primary opposition to same-sex marriage appears to be religiously based. In light of the foregoing, I expect the Supreme Court to invalidate DOMA. From a tax perspective, the invalidation of DOMA will trigger a right to tax refunds for prior year overpayments (because same-sex married couples have been denied the favorable tax treatment associated with being married). From a tax planning perspective, same-sex couples who may be entitled to a tax benefit should not wait for a final decision from the Supreme Court before filing a protective refund claim with the Internal Revenue Service. Rather, same-sex couples who are legally married should file claims now in order to protect their refund rights from expiring under the three-year statute of limitations that applies with respect to tax refund claims.
Same-Sex Couples Should Consider Filing Protective Tax Refund Claims in Anticipation of DOMA's Invalidation
November 9, 2012
