ILNews

IBA: Providing Benefits to Same-Gender Partners Can Be Taxing

Back to TopCommentsE-mailPrintBookmark and Share

 

clingerman-katrina-mug Clingerman

shaefer-shalina-mug Schaefer

By Katrina Clingerman and Shalina Schaefer, Ice Miller LLP

More than a dozen states and the District of Columbia now recognize same-sex relationships under various names, such as domestic partnerships, civil unions, or same-gender marriages. (We use the term “same-gender partner” generically to refer to any relationship of this sort.) The recognition provided by these states ranges from recognition of certain partnerships to the granting of certain spousal rights to same-gender partners. Several states and localities now require same-gender partner benefits to be offered to all public employees, require insurers to provide some level of same-gender partner benefits, or require any employers contracting with a municipality to provide same-gender partner benefits to their employees. In contrast, many other states have clarified that marriage is limited to the union of a man and a woman and providing same-gender partner benefits in these states may therefore be difficult or even prohibited. With states varying so widely in their policies, employers must carefully research the applicable laws in each state in which employees are located. Whether a company is offering health coverage to same-gender partners to be competitive, to provide equal benefits to all its employees, or to comply with changes in state or local law, there are federal tax issues to keep in mind. The purpose of this article is to alert you to federal tax issues involved in providing same-gender partner health benefits.

The Internal Revenue Code (“Code”) provides tax-favored treatment of employer-provided health benefits for employees and their spouses, dependents, and children through the end of the year in which they turn 26. However, the Defense of Marriage Act precludes the treatment of a same-gender partner as a “spouse” for these purposes. Thus, the value of health coverage provided to the partner can only be excluded from the employee’s taxable income if the partner qualifies as a “dependent” of the employee under Code Section 152 (a “Code Section 152 dependent”).

Qualifying as a Code Section 152 dependent of an employee would require, among other things, that the partner be a member of the employee’s household, share a principal residence with the employee, receive over half of the individual’s support from the employee, and not be a “qualifying child” of any other person. Often, the financial support requirement disqualifies many same-gender partners from being a dependent. Note that this is not a determination easily made by the employer, which may necessitate establishing a certification process for affected employees.

When a same-gender partner is not a Code Section 152 dependent, the value of health coverage provided to the partner must be added to the employee’s reported income (this is called “imputed income”). This means that both the value of the partner’s coverage subsidized by the employer and the portion of the premium paid by the employee for the partner’s coverage are taxable.

The difficulty in taxing employees on the value of same-gender partner health coverage is in determining the fair market value of such coverage, which is the imputed income amount. The Internal Revenue Service (“IRS”) has refused to issue any rulings that approve of a particular approach. Therefore, employers have adopted a variety of approaches. Most employers agree that beginning with the plan’s own COBRA rates (less the 2% administrative fee) is a logical starting point, and the IRS has officially neither disputed nor blessed this approach.

Employers are in less agreement as to the appropriate means of allocating the value of the coverage where coverage is provided to a family group consisting of both taxable and non-taxable individuals. For example, under an employer’s health plan, one employee may elect family coverage to cover herself, her child, and her same-gender partner. A second employee may elect family coverage to cover himself, his two children, and his same-gender partner. Both employees pay the same premium for family coverage and neither of them can claim their same-gender partner as a Code Section 152 dependent. What portion of each employee’s family premium is attributable to the same-gender partner’s coverage, and, therefore, taxable to the employee? Because no single approach has been approved, the approach is often determined based upon the circumstances and premium structure of the individual employer.

As the trend of providing same-gender partner benefits continues, companies will need to ensure that they understand their federal tax reporting and withholding responsibilities with respect to taxable same-gender partner benefits. In addition, it will be important to understand the state and local laws impacting the provision of such benefits in each locality where the employer operates.•
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. You just need my social security number sent to your Gmail account to process then loan, right? Beware scammers indeed.

  2. Hello everyone am precious from the united state of America am here to testify in the name of this great man who has brought back happiness into my family after my lover Chris left me for 3years for another woman,i really loved Chris because he was my first love i tried everything within my power to get Chris back to my life but people i met just kept on scamming me and lying to me,Then normally on Saturdays i do go out to make my hair and get some stuff,Then i had people discussing at the saloon if they do listen to there radio well,That there is a program (how i got back my ex)And started talking much about Dr EDDY how this man has helped lots of people in bringing back there lover,So immediately i went close to those ladies i met at the saloon and i explained things to them they said i should try and contact Dr EDDY that he has been the talk of the town and people are really contacting him for help immediately we searched on the internet and read great things about Dr EDDY i now got all Dr EDDY contact instantly at the saloon i gave Dr EDDY a call and i shared my problem with him he just told me not to worry that i should just be happy,He just told me to send him some few details which i did,And then he got back to me that everything would be okay within 36hours i was so happy then Dr EDDY did his work and he did not fail me,My lover Chris came to me in tears and apologized to me for leaving me in deep pain for good 3years,So he decided to prove that he will never leave me for any reason he made me had access to his account and made me his next of kin on all his will,Now the most perfect thing is that he can't spend a minute without seeing me or calling me,Am so grateful to Dr EDDY for bringing back the happiness which i lack for years,Please contact Dr EDDY for help he is a trustworthy man in email is dreddyspiritualtemple@gmail.com or you can call him or whatsapp him with this number...+23408160830324 (1)If you want your ex back. (2) if you always have bad dreams. (3)You want to be promoted in your office. (4)You want women/men to run after you. (5)If you want a child. (6)[You want to be rich. (7)You want to tie your husband/wife to be yours forever. (8)If you need financial assistance. (9)If you want to stop your Divorce. 10)Help bringing people out of prison. (11)Marriage Spells (12)Miracle Spells (13)Beauty Spells (14)PROPHECY CHARM (15)Attraction Spells (16)Evil Eye Spells. (17)Kissing Spell (18)Remove Sickness Spells. (19)ELECTION WINNING SPELLS. (20)SUCCESS IN EXAMS SPELLS. (21) Charm to get who to love you. CONTACT:dreddyspiritualtemple@gmail.com

  3. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: http://media.star-telegram.com/Munchausenmoms/ Here are the two research papers: http://www.sciencedirect.com/science/article/pii/0145213487900810 http://www.sciencedirect.com/science/article/pii/S0145213403000309 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

  4. MELISA EVA VALUE INVESTMENT Greetings to you from Melisa Eva Value Investment. We offer Business and Personal loans, it is quick and easy and hence can be availed without any hassle. We do not ask for any collateral or guarantors while approving these loans and hence these loans require minimum documentation. We offer great and competitive interest rates of 2% which do not weigh you down too much. These loans have a comfortable pay-back period. Apply today by contacting us on E-mail: melisaeva9@gmail.com WE DO NOT ASK FOR AN UPFRONT FEE. BEWARE OF SCAMMERS AND ONLINE FRAUD.

  5. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

ADVERTISEMENT