Employee Benefits Compliance

IRS Notice 2013-61: Same-Sex Spouses & Procedures for Employers to Correct Overpayment of Employment Taxes

The IRS issued Notice 2013-61 today (Sept 23, 2013) to provide “special administrative procedures for employers to correct overpayments of employment taxes for 2013 and prior years with respect to certain same-sex spouse benefits and certain remuneration paid to same-sex spouses, including overpayments that result from a taxpayer’s retroactive application of the holdings of Rev. Rul. 2013-17. With respect to these overpayments for 2013, this notice provides two alternative special administrative procedures.

  • Under the first alternative, employers may use the fourth quarter 2013 Form 941, Employer’s QUARTERLY Federal Tax Return, to correct these overpayments of employment taxes for the first three quarters of 2013.
  • Under the second alternative, employers may file one Form 941-X, Adjusted Employer’s QUARTERLY Federal Tax Return or Claim for Refund, for the fourth quarter of 2013 to correct these overpayments of FICA taxes for all quarters of 2013.

With respect to these overpayments of FICA taxes for years before 2013, employers can make a claim or adjustment for all four calendar quarters of a calendar year on one Form 941-X filed for the fourth quarter of such year if the period of limitations on refunds under section 6511 of the Internal Revenue Code (Code) has not expired and, in the case of adjustments, the period of limitations will not expire within 90 days of filing the adjusted return. Under normal procedures, employers are required to file a Form 941-X for each calendar quarter for which a refund claim or adjustment is made. The special administrative procedures provided in this notice are optional.”