The Supreme Court’s decision on DOMA and Prop 8 is not only a civil rights win for same sex couples- it’s a financial win for many.
In an unprecedented event last week, the Supreme Court ruled that the 1996 Defense of Marriage Act (“DOMA”) singled out same-sex marriage and treated same-sex couples "as living in marriages less respected than others." This week’s ruling will now give same-sex couples many of the same benefits (and in some cases, drawbacks) as any other married couple in the eyes of the law. Married same-sex couples in a dozen states and the District of Columbia will now be eligible for more than “1,000 spousal benefits previously off limits under DOMA.” And the court's other decision on Wednesday, striking down California's Prop 8, paves the way for same-sex marriages to resume in that state.
Key Aspects of the DOMA Ruling Include:
Income tax: Same-sex couples will now be able to file their federal income taxes jointly. For many couples -- especially those where one person earns significantly more than the other -- merging incomes for tax purposes will result in big savings. In addition, many education benefits, such as the American Opportunity Tax Credit and Lifetime Learning Credit, are now available to the spouse in a same-sex marriage where one spouse pays for qualified expenses of the other.
Health insurance: Some same-sex couples pay income tax on imputed income for the medical benefits one partner receives through the other's health insurance plan; this will now likely change. Meanwhile, many federal employees will likely be granted spousal benefits like partner health insurance.
Estate and Gift tax: Same-sex couples will also be exempt from gift tax when transferring assets to each other. Under DOMA, any gift between same-sex spouses of more than $14,000 (the 2013 annual gift tax exclusion) began utilizing the lifetime exclusion limit of $5.25 million-- after which tax was assessed on gifts exceeding the exclusion. Opposite-sex couples have never been subject to that tax. Same-sex couples will also be eligible to “split” gifts to take advantage of a doubled annual gift tax exclusion ($14,000 above x 2 married individuals or $28,000 for 2013) In addition, the unused lifetime exclusion of the decedent spouse is now portable and will allow the estate of the surviving spouse to utilize it.
Social Security benefits: Same-sex couples will now be eligible for the same federal tax treatment and Social Security benefits as opposite-sex couples in the event that one spouse passes away. This means a surviving spouse will be eligible for Social Security survivor’s benefits and will be exempt from the federal estate tax on assets exceeding $5.25 million. Note: In states where same-sex marriage is banned, this issue still has to be sorted out as the Social Security Administration has based these benefits on the state of residence.
While many will receive the benefits of this ruling; they will also receive its downside. For example, same-sex couples who divorce may be subject to the federal gift tax when dividing assets, or be partially responsible for the back taxes of the divorcing partner. Also, same-sex married couples will now have to file as either married filing joint, surviving spouse or married filing separate. Thus, the “marriage penalty” will impact some same-sex couples.
What the decision doesn't do: While many specifics of the Supreme Court's ruling are still blurry, it appears that couples must be married at a state level for all of these federal benefits to apply -- meaning domestic partnerships and civil unions don't qualify. It's also unclear whether federal benefits will apply to same-sex couples who marry in a state where same-sex marriage is legal but move to a state where it's not recognized.
To learn more check out this special report detailing Post DOMA Tax Implications
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Due Date of July 31, 2013 for Payment of Tax on Certain Self-funded Health Insurance Plans
The Affordable Care Act of 2010 established the Patient-Centered Outcome Research Institute (PCORI) for the purpose of conducting research to evaluate and compare health outcomes, clinical effectiveness, risks and benefits of two or more medical treatments, services, and procedures. This “PCORI fee” was created, in part, to pay for its activities.
The fee is one dollar, times the “average number of lives” covered under the plan, for each plan year ending after September 30, 2012 and before October 1, 2013 and two dollars per covered person for each plan year that ends thereafter and up through September 30, 2019.
The “average number of lives” is determined by one of four optional methods. For plan years beginning before July 11, 2012 and ending after October 1, 2012 any reasonable method can be used per IRS Form 720.
Employers with self-funded health insurance plans (including VEBAs) are now required to pay a “fee” to the IRS for each plan year ending after September 30, 2012 and before October 1, 2019.
Employers with self insured plans that have year-ends between October 1, 2012 and December 31, 2012 are required to pay the fee and file Form 720, Quarterly Federal Excise Tax Return by July 31, 2013.
The fee is considered to be a deductible tax expense.
Generally, health insurance policies and self-insured plans that provide only excepted benefits, such as plans that offer benefits limited to vision or dental benefits, are not subject to the PCORI fee. The PCORI tax applies to tax-exempt organizations and governmental entities.
Employer Mandate Penalty - 2014
Starting in 2014 the ACA will impose an annual penalty on employers who:
(1) do not offer group health insurance coverage to at least 95% of its employees OR
(2) offer its employees coverage that is unaffordable. Health insurance coverage is considered affordable if an employee's required contribution to the plan for self coverage does not exceed 9.5% of the employee's household income (or Form W-2) for the tax year.
For an employer that offers no coverage, the tax is $2,000 for each full time employee (in excess of 30) if at least one employee is certified and enrolled in qualified health care coverage under an insurance exchange. If an employer offers unaffordable coverage, the tax is $3,000 for each employee that is certified. The penalty is calculated on a monthly basis and applies to tax exempt organizations and government entities.
Applicable tax is determined on 2013 employee levels
Only an applicable large employer (ALE) is subject to the tax. The ALE threshold is triggered if an employer hires an average of 50 full time employees (which includes full time equivalents or “FTEs”) in the preceding calendar year. FTEs are determined by aggregating part-time employees under specific rules provided. There are also special rules for seasonal employees. Part-time employees are considered only for purposes of determining ALE status. They are not considered in calculating the penalty.
Thus, for 2014, an employer determines whether it qualifies as an ALE by virtue of its employee count in 2013. An employer can determine whether it has exceeded the ALE threshold by looking at any consecutive six month period it chooses to use in 2013, instead of the full year.
Aggregation of separate businesses may be required in determining ALE status.
Generally, the employee count for separate businesses that share a significant level of common ownership must be aggregated and treated as a single employer in determining whether ALE status applies.
In 2013 employers should assess effort to compile information needed.
Calculating the number of employees subject to the penalty could become very complicated. This is because employers could have a number of different employee “types” (i.e. variable hour, part-time, seasonal, salaried, common law employees v. independent contractors, etc.) Employers should assess the effort needed to make an accurate count of its full time employees There is also an obligation to furnish information to the employees, which is due January 31st of the calendar year following the year for which the employer return is required to be filed. Whether ALEs or employers providing minimal health insurance coverage, there is still a reporting requirement to the IRS even if no penalty is due.
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