Tax Guidance For Individuals In a Same-Sex Marriage

NOTE: This Article Has Been Replaced by a Revised Article Dated October 13, 2014. See the new article...

Federal Tax Treatment

For Federal tax purposes, Rev. Rul. 2013-17 provides that the Internal Revenue Service (IRS) will recognize a marriage of same-sex individuals that was validly entered into in a state whose laws authorize the marriage of two individuals of the same sex. This applies even if the married couple is domiciled in a state that does not recognize the validity of same-sex marriages.

As a result, for tax year 2013 and going forward, same-sex spouses generally must file their federal income tax returns using a filing status of married filing jointly or married filing separately. For tax year 2012 and all prior years, same-sex spouses who file an original tax return on or after September 16, 2013, generally must file their returns using a filing status of married filing jointly or married filing separately.

For tax year 2012, same-sex spouses who filed their tax return before September 16, 2013, may choose (but are not required) to amend their federal tax returns to file using a filing status of married filing jointly or married filing separately. For tax years 2011 and earlier, same-sex spouses who filed their tax returns timely may choose (but are not required) to amend their federal tax returns to file using a filing status of married filing jointly or married filing separately provided the period of limitations for amending the return has not expired.

Wisconsin Tax Treatment

Wisconsin does not recognize a same-sex marriage. Section 71.03(2)(d), Wis. Stats., provides that a husband and wife may file a joint return for income tax purposes. Individuals who entered into a same-sex marriage in another state cannot file a Wisconsin income tax return using a tax status of married filing jointly or married filing separately.

In the case of same-sex individuals who are considered married for federal tax purposes:

  • Each individual must file a Wisconsin income tax return on Form 1 or Form 1NPR (if a nonresident or part-year resident). Form 1A or Form WI-Z may not be filed for Wisconsin.
  • Each individual must file their Wisconsin income tax return separately using the filing status of single or, if qualified, head of household.
  • Same-sex individuals who file a joint federal income tax return must complete a new Wisconsin form, Schedule S, Allocation of Income to be Reported by Same-Sex Couples Filing a Joint Federal Return. Schedule S shows the amount of income as reported on the federal return that is allocable to each individual, and determines the federal adjusted gross income to be used for Wisconsin tax purposes. Wisconsin marital property law does not apply to this allocation.
  • For tax year 2012 and late returns from prior years filed on or after September 16, 2013, returns may not be e-Filed and must be filed on paper.
  • A complete copy of the federal return and Schedule S must be attached to Form 1 or Form 1NPR.

The above guidance applies to:

  • 2012 returns filed on or after September 16, 2013,
  • Late returns from prior years filed on or after September 16, 2013, and
  • Returns filed for tax year 2013 and going forward.

Although amended returns may be filed for federal tax purposes to change the filing status to married filing jointly or married filing separately, no amended returns may be filed for Wisconsin to change the filing status.

Schedule S will be available online at Wisconsin Department of Revenue  by September 30, 2013. The department may issue further guidance as needed.

September 6, 2013