[Federal Register Volume 80, Number 205 (Friday, October 23, 2015)]
[Proposed Rules]
[Pages 64378-64381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-26890]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Parts 1, 20, 25, 26, 31, and 301

[REG-148998-13]
RIN 1545-BM10


Definition of Terms Relating to Marital Status

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document contains proposed regulations that reflect the 
holdings of Obergefell v. Hodges, 576 U.S. __, 135 S. Ct. 2584 (2015), 
Windsor v. United States, 570 U.S. __, 133 S. Ct. 2675 (2013), and 
Revenue Ruling 2013-17 (2013-38 IRB 201), and that define terms in the 
Internal Revenue Code (Code) describing the marital status of 
taxpayers. The proposed regulations primarily affect married couples, 
employers, sponsors and administrators of employee benefit plans, and 
executors. This document invites comments from the public regarding 
these proposed regulations.

DATES: Written or electronic comments and requests for a public hearing 
must be received by December 7, 2015.

ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG-148998-13), Room 
5205, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, 
Washington, DC 20044. Submissions may be hand-delivered Monday through 
Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-
148998-13), Courier's Desk, Internal Revenue Service, 1111 Constitution 
Avenue NW., Washington, DC; or sent electronically via the Federal 
eRulemaking Portal at www.regulations.gov (IRS REG-148998-13).

FOR FURTHER INFORMATION CONTACT: Concerning the proposed amendments to 
the regulations, Mark Shurtliff at (202) 317-3400; concerning 
submissions of comments and requests for a hearing, Regina Johnson at 
(202) 317-6901 (not toll-free numbers).

SUPPLEMENTARY INFORMATION:

Background and Explanation of Provisions

    This document contains proposed amendments to the Income Tax 
Regulations (26 CFR part 1), the Estate Tax Regulations (26 CFR part 
20), the Gift Tax Regulations (26 CFR part 25), the Generation-Skipping 
Transfer Tax Regulations (26 CFR part 26), the Employment Tax and 
Collection of Income Tax at Source Regulations (26 CFR part 31), and 
the Regulations on Procedure and Administration (26 CFR part 301).

Amendments to Regulations Incorporating Holdings of Windsor, 
Obergefell, and Revenue Ruling 2013-17

    On June 26, 2013, the Supreme Court in United States v. Windsor, 
570 U.S. __, 133 S. Ct. 2675 (2013), held that Section 3 of the Defense 
of Marriage Act, which generally prohibited the federal government from 
recognizing the marriages of same-sex couples, is unconstitutional 
because it violates the principles of equal protection and due process. 
Revenue Ruling 2013-17 provides guidance on the Windsor decision's 
effect on the IRS's interpretation of Code sections that refer to 
taxpayers' marital status. Cf. Notice 2014-19 (2014-47 IRB 979), 
amplified by Notice 2014-37 (2014-24 IRB 1100) (regarding the 
application of the Windsor decision to qualified retirement plans); 
Notice 2014-1 (2014-02 IRB 270) (regarding elections and reimbursements 
for same-sex spouses under cafeteria plans, flexible spending 
arrangements, and health savings accounts following the Windsor 
decision); Notice 2013-61 (2013-44 IRB 432) (regarding the application 
of the Windsor decision and Rev. Rul. 2013-17 to employment taxes and 
special administrative procedures for employers to make adjustments or 
claims for refund or credit); and Revenue Procedure 2014-18 (2014-7 IRB 
513) (regarding extensions of time for estates to make a portability 
election). On June 26, 2015, the Supreme Court in Obergefell v. Hodges, 
576 U.S. __ (2015), held that state laws are ``invalid to the extent 
they exclude same-sex couples from civil marriage on the same terms and 
conditions as opposite-sex couples'' and ``that there is no lawful 
basis for a State to refuse to recognize a lawful same-sex marriage 
performed in another State on the ground of its same-sex character.'' 
Obergefell, 576 U.S. at 23, 28.
    In light of the holdings of Windsor and Obergefell, the Treasury 
Department and the IRS have determined that, for

[[Page 64379]]

federal tax purposes, marriages of couples of the same-sex should be 
treated the same as marriages of couples of the opposite-sex and that, 
for reasons set forth in Revenue Ruling 2013-17, terms indicating sex, 
such as ``husband,'' ``wife,'' and ``husband and wife,'' should be 
interpreted in a neutral way to include same-sex spouses as well as 
opposite-sex spouses. Accordingly, these proposed regulations amend the 
current regulations under section 7701 of the Internal Revenue Code 
(Code) to provide that, for federal tax purposes, the terms ``spouse,'' 
``husband,'' and ``wife'' mean an individual lawfully married to 
another individual, and the term ``husband and wife'' means two 
individuals lawfully married to each other. These definitions apply 
regardless of sex.
    In addition, these proposed regulations provide that a marriage of 
two individuals will be recognized for federal tax purposes if that 
marriage would be recognized by any state, possession, or territory of 
the United States. Under this rule, whether a marriage conducted in a 
foreign jurisdiction will be recognized for federal tax purposes 
depends on whether that marriage would be recognized in at least one 
state, possession, or territory of the United States. This comports 
with the general principles of comity where countries recognize actions 
taken in foreign jurisdictions, but only to the extent those actions do 
not violate their own laws. See Hilton v. Guyot, 159 U.S. 113, 167 
(1895) (``A judgment affecting the status of persons, such as a decree 
confirming or dissolving a marriage, is recognized as valid in every 
country, unless contrary to the policy of its own law.'').
    Although these proposed regulations define terms relating to 
marital status for federal tax purposes, the IRS may provide additional 
guidance as needed. For example, the IRS has already issued more 
particular guidance for employers regarding the application of Revenue 
Ruling 2013-17 to qualified retirement plans, and that guidance remains 
in effect. See Notice 2014-19 (2014-47 IRB 979).

Registered Domestic Partnerships, Civil Unions, or Other Similar 
Relationships Not Denominated as Marriage

    For federal tax purposes, the term ``marriage'' does not include 
registered domestic partnerships, civil unions, or other similar 
relationships recognized under state law that are not denominated as a 
marriage under that state's law, and the terms ``spouse,'' ``husband 
and wife,'' ``husband,'' and ``wife'' do not include individuals who 
have entered into such a relationship.
    Except when prohibited by statute, the IRS has traditionally looked 
to the states to define marital status. See Loughran v. Loughran, 292 
U.S. 216, 223 (1934) (``Marriages not polygamous or incestuous, or 
otherwise declared void by statute, will, if valid by the law of the 
state where entered into, be recognized as valid in every other 
jurisdiction.''); see also Revenue Ruling 58-66 (1958-1 CB 60) (if a 
state recognizes a common-law marriage as a valid marriage, the IRS 
will also recognize the couple as married for purposes of federal 
income tax filing status and personal exemptions). States have 
carefully considered the types of relationships that they choose to 
recognize as a marriage and the types that they choose to recognize as 
something other than a marriage. Although some states extend all of the 
rights and responsibilities of marriage under state law to couples in 
registered domestic partnerships, civil unions, or other similar 
relationships, those states have intentionally chosen not to denominate 
those relationships as marriages. Similar rules exist in some foreign 
jurisdictions.
    Some couples have chosen to enter into a civil union or registered 
domestic partnership even when they could have married, and some 
couples who are in a civil union or registered domestic partnership 
have chosen not to convert those relationships into a marriage even 
when they have had the opportunity to do so. In many cases, this choice 
was deliberate, and couples who enter into civil unions or registered 
domestic partnerships may have done so with the expectation that their 
relationship will not be treated as a marriage for purposes of federal 
law. For some of these couples, there are benefits to being in a 
relationship that provides some, but not all, of the protections and 
responsibilities of marriage. For example, some individuals who were 
previously married and receive Social Security benefits as a result of 
their previous marriage may choose to enter into a civil union or 
registered domestic partnership (instead of a marriage) so that they do 
not lose their Social Security benefits. More generally, the rates at 
which some couples' income is taxed may increase if they are considered 
married and thus required to file a married-filing-separately or 
married-filing-jointly federal income tax return. Treating couples in 
civil unions and registered domestic partnerships the same as married 
couples who are in a relationship denominated as marriage under state 
law could undermine the expectations certain couples have regarding the 
scope of their relationship. Further, no provision of the Code 
indicates that Congress intended to recognize as marriages civil 
unions, registered domestic partnerships, or similar relationships. 
Accordingly, the IRS will not treat civil unions, registered domestic 
partnerships, or other similar relationships as marriages for federal 
tax purposes.

Effect on Other Documents

    These proposed regulations would, as of the date they are published 
as final regulations in the Federal Register, obsolete Revenue Ruling 
2013-17. Taxpayers may continue to rely on guidance related to the 
application of Revenue Ruling 2013-17 to employee benefit plans and the 
benefits provided under such plans, including Notice 2013-61, Notice 
2014-37, Notice 2014-19, and Notice 2014-1.

Proposed Effective/Applicability Date

    The regulations, as proposed, would be applicable as of the date of 
publication of a Treasury decision adopting these rules as final 
regulations in the Federal Register.

Statement of Availability for IRS Documents

    For copies of recently issued Revenue Procedures, Revenue Rulings, 
Notices, and other guidance published in the Internal Revenue Bulletin, 
please visit the IRS Web site at http://www.irs.gov.

Special Analyses

    Certain IRS regulations, including this one, are exempt from the 
requirements of Executive Order 12866, as supplemented and reaffirmed 
by Executive Order 13563. Therefore, a regulatory impact assessment is 
not required. It has also been determined that section 553(b) of the 
Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to 
these regulations. In addition, because the regulations do not impose a 
collection of information on small entities, the Regulatory Flexibility 
Act (5 U.S.C. chapter 6) does not apply. Accordingly, a regulatory 
flexibility analysis is not required under the Regulatory Flexibility 
Act (5 U.S.C. chapter 6). Pursuant to section 7805(f) of the Code, this 
notice of proposed rulemaking will be submitted to the Chief Counsel 
for Advocacy of the Small Business Administration for comment on its 
impact on small businesses.

Comments and Requests for Public Hearing

    Before these proposed regulations are adopted as final regulations,

[[Page 64380]]

consideration will be given to any comments that are submitted timely 
to the IRS as prescribed in this preamble under the Addresses heading. 
Treasury and the IRS request comments on all aspects of the proposed 
rules. All comments will be available at www.regulations.gov or upon 
request. A public hearing will be scheduled if requested in writing by 
any person who timely submits written comments. If a public hearing is 
scheduled, notice of the date, time, and place for the public hearing 
will be published in the Federal Register.

Drafting Information

    The principal author of these proposed regulations is Mark 
Shurtliff of the Office of the Associate Chief Counsel, Procedure and 
Administration.

List of Subjects

26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

26 CFR Part 20

    Estate taxes, Reporting and recordkeeping requirements.

26 CFR Part 25

    Gift taxes, Reporting and recordkeeping requirements.

26 CFR Part 26

    Estate, Reporting and recordkeeping requirements.

26 CFR Part 31

    Employment taxes, Income taxes, Penalties, Pensions, Reporting and 
recordkeeping requirements, Social Security, Unemployment compensation.

26 CFR Part 301

    Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income 
taxes, Penalties, Reporting and recordkeeping requirements.

Proposed Amendments to the Regulations

    Accordingly, 26 CFR parts 1, 20, 25, 26, 31, and 301 are proposed 
to be amended as follows:

PART 1--INCOME TAXES

0
Paragraph 1. The authority citation for part 1 continues to read in 
part as follows:

    Authority: 26 U.S.C. 7805 * * *

0
Par 2. Section 1.7701-1 is added to read as follows:


Sec.  1.7701-1  Definitions; spouse, husband and wife, husband, wife, 
marriage.

    (a) In general. For the definition of the terms spouse, husband and 
wife, husband, wife, and marriage, see Sec.  301.7701-18 of this 
chapter.
    (b) Effective/applicability date. The rules of this section apply 
to taxable years ending on or after the date of publication of the 
Treasury decision adopting these rules as final regulation in the 
Federal Register.

PART 20--ESTATE TAX; ESTATES OF DECEDENTS DYING AFTER AUGUST 16, 
1954

0
Par. 3. The authority citation for part 20 continues to read in part as 
follows:

    Authority:  26 U.S.C. 7805 * * *

0
Par. 4. Section 20.7701-2 is added to read as follows:


Sec.  20.7701-2  Definitions; spouse, husband and wife, husband, wife, 
marriage.

    (a) In general. For the definition of the terms spouse, husband and 
wife, husband, wife, and marriage, see Sec.  301.7701-18 of this 
chapter.
    (b) Effective/applicability date. The rules of this section apply 
to taxable years ending on or after the date of publication of the 
Treasury decision adopting these rules as final regulation in the 
Federal Register.

PART 25--GIFT TAX; GIFTS MADE AFTER DECEMBER 31, 1954

0
Par. 5. The authority citation for part 25 continues to read in part as 
follows:

     Authority: 26 U.S.C. 7805 * * *

0
Par. 6. Section 25.7701-2 is added to read as follows:


Sec.  25.7701-2  Definitions; spouse, husband and wife, husband, wife, 
marriage.

    (a) In general. For the definition of the terms spouse, husband and 
wife, husband, wife, and marriage, see Sec.  301.7701-18 of this 
chapter.
    (b) Effective/applicability date. The rules of this section apply 
to taxable years ending on or after the date of publication of the 
Treasury decision adopting these rules as final regulation in the 
Federal Register.

PART 26--GENERATION-SKIPPING TRANSFER TAX REGULATIONS UNDER THE TAX 
REFORM ACT OF 1986

0
Par. 7. The authority citation for part 26 continues to read in part as 
follows:

     Authority: 26 U.S.C. 7805 * * *

0
Par. 8. Section 26.7701-2 is added to read as follows:


Sec.  26.7701-2  Definitions; spouse, husband and wife, husband, wife, 
marriage.

    (a) In general. For the definition of the terms spouse, husband and 
wife, husband, wife, and marriage, see Sec.  301.7701-18 of this 
chapter.
    (b) Effective/applicability date. The rules of this section apply 
to taxable years ending on or after the date of publication of the 
Treasury decision adopting these rules as final regulation in the 
Federal Register.

PART 31--EMPLOYMENT TAXES AND COLLECTION OF INCOME TAX AT THE 
SOURCE

0
Par. 9. The authority citation for part 31 continues to read in part as 
follows:

     Authority:  26 U.S.C. 7805 * * *

0
Par. 10. Section 31.7701-2 is added to read as follows:


Sec.  31.7701-2  Definitions; spouse, husband and wife, husband, wife, 
marriage.

    (a) In general. For the definition of the terms spouse, husband and 
wife, husband, wife, and marriage, see Sec.  301.7701-18 of this 
chapter.
    (b) Effective/applicability date. The rules of this section apply 
to taxable years ending on or after the date of publication of the 
Treasury decision adopting these rules as final regulation in the 
Federal Register.

PART 301--PROCEDURE AND ADMINISTRATION

0
Par. 11. The authority citation for part 301 continues to read in part 
as follows:

    Authority:  26 U.S.C. 7805 * * *

0
Par. 12. Section 301.7701-18 is added to read as follows:


Sec.  301.7701-18  Definitions; spouse, husband and wife, husband, 
wife, marriage.

    (a) In general. For federal tax purposes, the terms spouse, 
husband, and wife mean an individual lawfully married to another 
individual. The term husband and wife means two individuals lawfully 
married to each other.
    (b) Persons who are married for federal tax purposes. A marriage of 
two individuals is recognized for federal tax purposes if the marriage 
would be recognized by any state, possession, or territory of the 
United States.
    (c) Persons who are not married for federal tax purposes. The terms 
spouse, husband, and wife do not include individuals who have entered 
into a registered domestic partnership, civil union, or other similar 
relationship not denominated as a marriage under the law of a state, 
possession, or territory of the United States. The term husband

[[Page 64381]]

and wife does not include couples who have entered into such a 
relationship, and the term marriage does not include such 
relationships.
    (d) Effective/applicability date. The rules of this section apply 
to taxable years ending on or after the date of publication of the 
Treasury decision adopting these rules as final regulation in the 
Federal Register.

John M. Dalrymple,
Deputy Commissioner for Services and Enforcement.
[FR Doc. 2015-26890 Filed 10-21-15; 4:15 pm]
 BILLING CODE 4830-01-P