December 10, 2012

Marcum’s LGBT & Non-Traditional Family Practice Group Featured in AccountingToday Article "Supreme Court to Hear DOMA Case with Tax Implications"

Accounting Today

By Michael Cohn

Featured Nanette Miller, Partner, Assurance

Marcum’s LGBT & Non-Traditional Family Practice Group Featured in AccountingToday Article "Supreme Court to Hear DOMA Case with Tax Implications" Tax & Business


The Supreme Court has agreed to hear a pair of cases challenging the constitutionality of the federal Defense of Marriage Act and of California’s Proposition 8, which banned same-sex marriage, and the cases could have tax ramifications.

The high court granted certiorari to the two cases on Friday. The court will hear arguments in both United States v. Windsor, which challenges the constitutionality of DOMA, and of Hollingsworth v. Perry, which challenges Prop. 8. In the Windsor case, the petitioner, Edith Schlain Windsor, claimed that she overpaid estate taxes after the death of her longtime partner. In 2007, she married Thea Spyer, her same-sex partner of more than 40 years, in Canada. The couple resided in New York.

Tax experts in the Lesbian, Gay, Bisexual and Transgender practice group at the accounting and advisory firm Marcum LLP said Monday that the U.S. Supreme Court’s decision to hear a bellwether case challenging a key section of the Defense of Marriage Act could open the door to equal tax treatment for same-sex married couples under federal law. If the court overturns the act’s definition of marriage as a union between a man and a woman, same-sex married couples will be entitled to the same income and estate tax deductions and many other federal benefits available to traditional families, which are currently denied to them.

“In addition to achieving future tax parity, a favorable ruling would entitle nontraditional couples who are legally married for state purposes to file amended federal tax returns retroactively,” said Nanette Lee Miller, national leader of Marcum’s LGBT practice group and Partner-in-Charge of Assurance Services for the firm’s California offices. “Therefore, we are strongly urging our LGBT clients to immediately file protective claims for refunds of any overpayments, pending the court’s ruling. Since there is a three-year statute of limitations on tax refund claims, it is imperative that claims be filed as soon as possible to protect any potential refunds for returns dating back as far as 2009.”

“An affirmative ruling by the court will also allow same-sex married couples to benefit from tax-advantaged estate planning,” said Janis Cowhey McDonagh, a partner in the firm’s New York City office and a member of its Trusts and Estates Practice group, who frequently lectures on LGBT estate and income tax issues, and is the author of “Top 10 Estate Planning Tips for LGBT & Non-Traditional Families.”

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