Same-Sex Marriage Tax Guidance Issued in Wisconsin

Author: Rena Pirsos, XpertHR Legal Editor

September 24, 2013

Although same-sex marriage is not recognized in Wisconsin, the state Department of Revenue (the Department) has issued tax guidance for individuals in a same-sex marriage. The guidance serves as the state's response to the recent revenue ruling issued by the Internal Revenue Service (IRS) which recognizes - for federal tax purposes - same-sex marriages legally entered into in other states even where the couple lives in a state that does not recognize same-sex marriages.

Wisconsin law allows opposite-sex married couples to file a joint return for income tax purposes but does not allow same-sex couples who were married in another state to file a Wisconsin income tax return using the tax status of married filing jointly or married filing separately. The guidance lists the following tax filing rules for same-sex couples who are considered married for federal tax purposes:

  • Each individual must file a Wisconsin income tax return on Form 1 or Form 1NPR (if a nonresident or part-year resident). Form 1A or Form WI-Z may not be filed for Wisconsin.
  • Each individual must file their Wisconsin income tax return separately using the filing status of single or, if qualified, head of household.
  • Same-sex couples who file a joint federal income tax return must complete a new Wisconsin form, Schedule S, Allocation of Income to be Reported by Same-Sex Couples Filing a Joint Federal Return. Schedule S shows the amount of income as reported on the federal return that is allocable to each individual, and determines the federal adjusted gross income to be used for Wisconsin tax purposes.
  • For tax year 2012 and late returns from prior years filed on or after September 16, 2013, returns may not be filed electronically and must be filed on paper. A complete copy of the federal return and Schedule S must be attached to Form 1 or Form 1NPR.

The guidance applies to:

  • 2012 returns filed on or after September 16, 2013;
  • Late returns from prior years filed on or after September 16, 2013; and
  • Returns filed for tax year 2013 and going forward.

Although amended returns may be filed for federal tax purposes to change the filing status to married filing jointly or married filing separately, no amended returns may be filed for Wisconsin to change filing status.

The guidance notes that Schedule S will be available online at the Department's website by September 30, 2013, and that the Department may issue further guidance as needed.

Note that, unlike federal law, the value of health insurance benefits provided by employers to employees' same-sex spouses and their dependents will remain subject to Wisconsin income tax withholding.