Tax Strategies & Credits

Windsor decision retirement plan amendment deadline is December 31, 2014

12/30/2014

In 2013, the Supreme Court handed down the Windsor decision, which struck down Section 3 of the Defense of Marriage Act (DOMA), which was originally enacted by congress and signed into law by President Bill Clinton in 1996. That section established a definition of marriage as the “legal union between one man and one woman as husband and wife” for purposes of administering federal law. The law also made the specific distinction that the term “spouse” referred to “a person of the opposite sex who is a husband or wife.” U.S. v. Windsor, et al, (Sup Ct 2013) 111 AFT 2d 2013-2385 determined that Section 3 was an unconstitutional deprivation of equal protection. Section 3 had meant that same-sex spouses were not recognized in qualified retirement plans, but the Windsor decision changed that for those in “lawful marriages.”

Shortly after the decision was handed down, the Internal Revenue Service published Rev Rul 2013-17, which provided guidance regarding Windsor's implications for Federal taxes. This revision indicated that same-sex couples who had legally married in jurisdictions that recognized their marriage would also be recognized as legally married in terms of their federal taxes – as long as their “state of celebration” deemed them legally married the IRS would consider them so, even if their state of residence does not. The guidance specified that the terms “spouse,” “husband and wife,” “husband,” and “wife” were to be inclusive for and apply to instances in which a person was married to someone that is the same sex as themselves as long as their marriage is legal in the state in which it took place. It also specified that the word “marriage” could be applied to those of the same sex.

One of the implications of this decision was that it necessitated that amendments be made to the language and qualification requirements of qualified retirement plans. Rev Proc 2007-44, 2007-28 IRB 54 sets down rules regarding when amendments that have an impact on the provisions of a written plan document need to be in place. It sets forth that an interim amendment needs to be established either by the end of the plan year in which the change is first effective, or the due date of the employer's tax return for the tax year that includes the date that the change is first effective – whichever is later.

Another IRS ruling, Rev Rul 2013-17, indicated that though the ruling was to be effective going forward as of Sept. 16, 2013, from the perspective on taxpayers it could be interpreted retroactively “with respect to any employee benefit plan or arrangement or any benefit provided thereunder only for purposes of filing original returns, amended returns, adjusted returns, or claims for credit or refund of an overpayment of tax concerning employment tax and income tax with respect to employer-provided health coverage benefits or fringe benefits that were provided by the employer and are excludable from income” with regard to marital status. This specifically referred to Code Sec. 106, Code Sec. 117(d), Code Sec. 119, Code Sec. 129, and Code Sec. 132. Additionally, the agency promised more guidance regarding how Windsor would impact the application of other employee benefits, benefit plans and arrangement. This information was then released in Weekly Alert 3, dated 9/5/2013.

As the end of 2014 approaches, it is important to take note of the guidance that the IRS provided in question-and-answer format in their Notice 2014-19, 2014-17 IRB 979. This guidance was specific to qualified retirement plans and their amendments, and indicated a deadline of December 31, 2014 for creating amendments needed in relation to the Windsor decision, specifically referencing plans whose terms define a marital relationship by reference to Section 3 of DOMA, which Windsor struck down. The details of this notice can be found in Weekly Alert 18, dated 04/10/2014. That end-of-December deadline is fast approaching. It is essential that any retirement plants that have not yet aligned their terms to be consistent with the Windsor decision do so, and that those plans that offered amendments immediately after the decision was handed down ensure that their amendments remain in compliance with guidance handed down since the original decision.

Though the IRS originally indicated that plans simply needed to treat same-sex spouses as a spouse, and did not require that amendments be issued, rulings issued in April of 2014 changed that and required amendments be made by December 31, 2014 to any plan that defined marriage according to Section 3 of DOMA. There are several specific codes within qualified retirement plans that may contain these references that need to be changed. They include:

Code Sec. 401(a)(11) – This indicates that certain qualified retirements plans are required to give married participants a qualified joint and survivor annuity (QJSA) upon retirement. It also generally indicates that the surviving spouse of a married participant who dies before retirement must be given a qualified pre-retirement survivor annuity (QPSA). In plans that fall under these requirements, the married participant can only waive the QJSA or QPSA if spousal consent is provided (pursuant to Code Sec. 417). In those plans that allow loans to be provided to participants, consent must be obtained from the spouse of a married participant before that loan is made (pursuant to Code Sec 417(a)(4).

Code Sec 401(a)(11)(B)(iii) – This indicates that when a married participant dies and the participant's benefit is payable in full to the surviving spouse, certain qualified defined contribution retirement plans are exempt from the QJSA and QPSA requirements unless that spouse has consented to the designation of a different beneficiary.

Code Sec. 401(a)(9)'s required minimum distribution rules – these provide other alternatives for spouses that are specifically not available to non-spousal beneficiaries.

Code Sec. 402(c)'s rollover rules – these provide other alternatives for spouses that are specifically not available to non-spousal beneficiaries.

Code Sec. 1563(e)(5) – This is for the purpose of understanding whether corporations are members of a controlled group under Code Sec. 414(b), and treats a spouse as owning the shares owned by the other spouse.

Code Sec. 318(a)(1) – This is for the purpose of understanding whether an employee is classified as a key employee under Code Sec. 416(i)(1), including whether an employee is to be considered a 5% owner, and treats a spouse as owning the shares owned by the other spouse.

Code Sec. 409(n) – This is a prohibitive code written for preventing employee stock ownership plans (ESOP) that acquire certain employer securities from allocating or accruing the securities for the advantage of certain individuals. The code specifies that these disqualified individuals include the spouse of the seller as well as the spouse of any person owning 25% or more of the securities involved.

Code Sec. 409(p) – This is a prohibitive code written to prevent the assets of an employee stock ownership plan (ESOP) consisting of S-corporation stock from accruing during a non-allocation year for the advantage of any disqualified person or certain family members (including the spouse) of the disqualified person under certain circumstances.

Code Sec. 401(a)(13)(B) – This code is specific to plans pursuant to qualified domestic relations orders (QDRO) as described in Code Sec. 414(p) and Code Sec. 402(e)(1). These codes allow an alternate payee who is a spouse or former spouse of the participant to be treated as the distributee of a distribution under a QDRO. The code prohibits anti-alienation rules from applying to the creation, assignment, or recognition of an alternate payee's right to receive all or a portion of the benefits payable to a participant under a plan pursuant to a qualified domestic relations order (QDRO).

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Lee Reams, BSME, EA

Editor-in-Chief

Besides his role at CountingWorks as an educator and speaker to thousands of accountants nationwide, Lee manages a technical research service for a large group of tax accountants which sharpens his technical skills. Lee served on the Board of Blackline Systems, is a former Board of Director for the California Tax Education Council, is a Past President of the San Fernando Valley Chapter of Enrolled Agents, Member and Past Director for the California Society of Enrolled Agents.

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You agree that: (i) the Website shall be deemed solely based in California; and (ii) the Website shall be deemed a passive website that does not give rise to personal jurisdiction over Taxbuzz or CountingWorks, Inc., either specific or general, in jurisdictions other than California. These Terms and Conditions shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Any claim or dispute between you and Taxbuzz that arises in whole or in part from the Website shall be decided exclusively by a court of competent jurisdiction located in Los Angeles County, California. These Terms and Conditions, together with the Privacy Policy at https://www.taxbuzz.com/t/privacy and any other legal notices published by Taxbuzz on the Website, shall constitute the entire agreement between you and Taxbuzz concerning the Website. If any provision of these Terms and Conditions is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms and Conditions, which shall remain in full force and effect. No waiver of any term of this these Terms and Conditions shall be deemed a further or continuing waiver of such term or any other term, and Taxbuzz's failure to assert any right or provision under the Terms and Conditions shall not constitute a waiver of such right or provision. YOU AND TAXBUZZ AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Liability Limitation and Usage Guidelines for TaxBuzz AI:
Limitation of Liability:

TaxBuzz AI is a tool designed to provide tax professionals with assistance in generating responses to tax research questions. While we strive to maintain the accuracy and reliability of the information provided, it is imperative to recognize that tax laws are dynamic and subject to change. Therefore, the use of TaxBuzz AI should be complemented by professional judgment and consultation with legal and tax experts.

By utilizing TaxBuzz AI, you acknowledge and agree that the information generated should not be considered as a substitute for professional advice tailored to your specific circumstances. We explicitly disclaim any liability for the consequences arising from the use of advice generated by TaxBuzz AI. Users are encouraged to independently verify the information and seek professional advice before making decisions based on the AI-generated responses.

Usage Guidelines:
- Professional Judgment: TaxBuzz AI is a tool to aid tax professionals in research and analysis. It is not a replacement for professional judgment, and users should exercise their expertise when interpreting and applying the information generated.
- Consultation with Experts: While TaxBuzz AI provides valuable insights, it is crucial to consult with legal and tax experts to ensure the advice aligns with the latest legal developments and specific nuances of a particular situation.
- Verification of Information: Users are responsible for independently verifying the information provided by TaxBuzz AI, especially in instances where the advice generated is critical to decision-making.
- Educational Purposes: TaxBuzz AI is intended for educational and informational purposes only. It is not intended to provide specific legal or tax advice tailored to individual circumstances.
- Non-Endorsement: The use of TaxBuzz AI does not constitute an endorsement or guarantee of the accuracy of the information provided. Users are encouraged to corroborate the advice with other reliable sources.
By accessing and using TaxBuzz AI, you agree to abide by these terms and acknowledge the limitations outlined herein. We reserve the right to modify these terms at any time, and your continued use of TaxBuzz AI constitutes acceptance of any such modifications. If you do not agree with these terms, please refrain from using TaxBuzz AI.

TaxBuzz.com is a service of CountingWorks, Inc., 2549 Eastbuff Drive., #448 208, Newport Beach, CA 92660

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