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ARTICLE · 30 SEPTEMBER 2013

The Windsor FICA Fix

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As promised, the Internal Revenue Service has prescribed special procedures that employers may use in order to retroactively correct FICA withholding and payment following the Supreme Court's decision earlier this year in United States v. Windsor, and last month's Revenue Ruling 2013-17, under which same-sex couples are treated as married for all federal tax purposes if they were legally married, regardless of residence.

United StatesEmployment and HR
Jeffrey Ashendorf
Jeffrey Ashendorf
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Executive Summary:  As promised, the Internal Revenue Service has prescribed special procedures that employers may use in order to retroactively correct FICA withholding and payment following the Supreme Court's decision earlier this year in United States v. Windsor, and last month's Revenue Ruling 2013-17 (the "Ruling"), under which same-sex couples are treated as married for all federal tax purposes if they were legally married, regardless of residence.  For background, see our previous Legal Alert: IRS Answers Residence Question for Same Sex Spouses, at http://www.fordharrison.com/9568, and the article linked therein.                             

Prior to the Windsor decision, the Defense of Marriage Actprohibited recognition of same-sex marriages for purposes of Federal laws – including the Internal Revenue Code. As a result, employers were required to withhold and pay employment taxes with respect to certain benefits provided to an employee's same-sex spouse

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