BOND INFORMATION MEMO - Employee Benefits Law - IRS Special Procedures for Refunds of Taxes on Same-Sex Spouse Benefits

Sep 19, 2026

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BOND INFORMATION MEMO summarizes key IRS actions affecting employee benefits paid to same-sex spouses following the Windsor decision. It explains how the Internal Revenue Code exclusion and DOMA Section 3 were addressed, the tax treatment for lawfully married same-sex couples, and the ability to seek refunds for open tax years. The memo outlines Notice 2013-61’s special employer procedures for correcting FICA and federal withholding, including required filings and deadlines.

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Employee Benefits Law

IRS guidance after United States v. Windsor

Revenue Ruling 2013-17 tax treatment

Notice 2013-61 special procedures for employers

Alternative procedures for 2013 overpayments

Optional procedures for pre-2013 years

Filing deadlines for Form 941-X

Conclusion

BOND INFORMATION MEMO Employee Benefits Law October 2013 IRS Releases Special Procedures for Employers to Seek Refunds of Taxes on Same-Sex Spouse Benefits The Internal Revenue Code (“Code”) excludes from an employee’s income the value of certain employerprovided benefits that cover or are provided to the spouse of the employee. Section 3 of the Federal Defense of Marriage Act (“DOMA”), however, prohibited the IRS from recognizing same-sex spouses under the Code. Thus, until recently, the value of benefits provided by an employer to the same-sex spouse of an employee generally had to be treated (for federal income tax purposes) as additional wages paid to the employee. On June 26, 2013, the United States Supreme Court, in United States v. Windsor, ruled that Section 3 of DOMA was unconstitutional. (For a more detailed discussion of the Windsor decision, see our July 2013 Employee Benefits Law Action Memo.) Since Windsor, several pieces of IRS guidance have addressed how the IRS will implement the decision. In Revenue Ruling 2013-17, the IRS held that individuals of the same sex who are lawfully married under the laws of any State will be treated as spouses for federal income tax purposes, even if the same-sex couple currently resides in a State that does not recognize same-sex marriages. Employees who are lawfully married to a person of the same sex will no longer be required to recognize income (for federal income tax purposes) equal to the value of certain benefits provided to the employee’s same-sex spouse. In addition, because the Windsor decision has retroactive effect, the IRS also indicated that employees who previously paid federal income taxes on the value of benefits provided to their same sex spouses can seek refunds of those taxes by filing amended individual tax returns for open tax years (generally 2010, 2011 and 2012, as applicable) . In Notice 2013-61, the IRS provided special administrative procedures that an employer may follow to correct the employer’s overpayments of FICA taxes and federal income tax withholding on same-sex spouse benefits. Generally, employers file an IRS Form 941 to report FICA tax paid and income tax withheld for each calendar quarter. A Form 941-X is used to correct overreported taxes for each calendar quarter. In Notice 2013-61, the IRS pointed out that employers may still use the regular Form 941-X procedure for overpayments relating to same-sex spouse benefits. However, to reduce administrative burden, the IRS provided alternative procedures for employers to use for taxes attributable to same-sex spouse benefits (including taxes on premiums paid for health plan coverage, remitted tuition benefits, dependent care benefits and other fringe benefits) . Bond publications are for clients and friends of the firm and are not a substitute for professional counseling or advice. For information about our firm, practice areas and attorneys, visit our website, [www.bsk.com](www.bsk.com). Attorney Advertising • © 2013 Bond, Schoeneck & King, PLLC ALBANY BUFFALO GARDEN CITY ITHACA NEW YORK CITY OSWEGO ROCHESTER SYRACUSE UTICA NAPLES, FL OVERLAND PARK, KS For 2013 overpayments, the IRS provided the following two alternative procedures for employers: 1. If an employer repays or reimburses (against subsequent wages) employees for over-collected FICA taxes and income tax withholding for same-sex spouse benefits for the first three quarters of 2013 by December 31, 2013, then the employer may make a corresponding reduction to the FICA wages and income taxes withheld for the first three quarters of 2013 on its fourth quarter 2013 Form 941. 2. If an employer does not repay or reimburse employees for over-collected FICA taxes and income tax withholding for same-sex spouse benefits by December 31, 2013, then the employer may file one Form 941-X for the fourth quarter of 2013 to correct FICA taxes for all quarters of 2013. However, under this option, an employer cannot make adjustments

FAQs

What changed for tax treatment of employer-provided benefits to same-sex spouses after Windsor?

After United States v. Windsor, Section 3 of DOMA was held unconstitutional. The IRS guidance treats lawfully married same-sex spouses as spouses for federal income tax purposes, meaning employees are no longer required to treat certain benefit values as additional wages.

How can employees seek refunds for taxes paid on same-sex spouse benefits?

Because the Windsor decision has retroactive effect, employees who previously paid federal income taxes on the value of benefits provided to their same-sex spouses can seek refunds by filing amended individual tax returns for open tax years.

What special procedures does Notice 2013-61 provide for employer overpayments of FICA and withholding?

Notice 2013-61 sets forth special administrative procedures employers may follow to correct overpayments relating to same-sex spouse benefits. It includes alternative options to reduce administrative burden, while also requiring compliance with Form 941/941-X related steps and, in some cases, filing Forms W-2c and writing “WINDSOR” on Form 941-X.

Sep 19, 2026

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