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The Wagner Law Group Description 

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 


Established in 1996, The Wagner Law Group has 23 attorneys engaged exclusively in employee benefits, estate planning and employment law. Seven of our attorneys are AV rated by Martindale-Hubbell as having very high to preeminent legal abilities and ethical standards. The firm is among the largest ERISA boutiques in the country. Our practice is national in scope, with clients in more than 40 states and several foreign countries.



Contact Info

The Wagner Law Group


  Integrity | Excellence


Massachusetts Office 

Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110

Florida Office 

Tel: (561) 293-3590
Fax: (561) 293-3591
7108 Fairway Drive
Suite 125
Palm Beach Gardens, FL 33418


San Francisco Office

Tel: (415) 625-0002

Fax: (415) 358-8300

315 Montgomery Street

Suite 904

San Francisco, CA 94104





October 3, 2013 

 State and Federal Law Alert


IRS Notice Provides Procedures to Correct Overwithholdings and Overpayments Related to Same-Sex Spousal Benefits


The IRS has issued Notice 2013-61, which outlines special administrative procedures for employers to use to correct overwitholdings of income taxes and overpayments of payroll taxes for 2013 and prior open tax years with respect to employer-provided, same-sex spousal benefits. This guidance supplements Revenue Ruling 2013-17, which clarified that under the U.S. Supreme Court's decision in U.S. v.Windsor, the IRS will recognize all legally-married, same-sex couples for federal tax purposes, regardless of where the couple lives. (See the Alert of 9/5/2013 for further details.)


Correction Methods for 2013. Notice 2013-61 offers the following alternatives for employers that have treated the value of same-sex spousal benefits as compensation on their Forms 941 for the first three quarters of 2013:

  • Employers may correct overwithholding and overpayments for the first three quarters of 2013 on the fourth quarter's Forms 941 if employees are reimbursed for overwithholdings and overpayments by December 31, 2013.
  • Employers that do not reimburse employees for the overwithholdings and overpayments by December 31, 2013 may file one Form 941-X for the fourth quarter of 2013 to correct FICA overpayments for all quarters in 2013. This alternative allows employers to avoid having to file separate Forms 941-X for each quarter of 2013.  

Under the second alternative, however, employers cannot make an adjustment for income tax overwithholding. Instead, employees will receive a credit for the overwithholding when they file their 2013 federal income tax returns.


Correction Methods for Prior Years (2010 through 2012). For calendar years 2010 through 2012, Notice 2013-61 authorizes employers to file a single Form 941-X for the fourth quarter of the applicable year to correct for FICA overpayments made in any or all quarters of that year.


While Notice 2013-61 allows employers to file only one Form 941-X to correct overpayments, it does not relieve employers of their obligation to file Forms W-2c (to allow employees to correct their prior income tax returns), obtain written consent from affected employees, and reimburse employees for FICA overpayments.


Procedural Issues. The special administrative procedures provided in Notice 2013-61 are optional and are intended to relieve filing and reporting burdens associated with the retroactive application of Revenue Ruling 2013-17. Employers may still use standard procedures for correcting income tax overwithholding and FICA overpayments.


All Forms 941 and Forms 941-X filed pursuant to Notice 2013-61 must include the name "WINDSOR" in dark, bold letters across the top of page one to alert the IRS that the forms are related to adjustments in response to Revenue Ruling 2013-17.


Recommendations. In consideration of the guidance provided by Notice 2013-61, employers are advised to determine any income taxes that were overwithheld in 2013 and make the necessary corrections on the fourth quarter 2013 Form 941. Employers should also consider whether it would be more advantageous to simply file refund claims for prior years or to take a credit.


IRS Notice 2013-61 is accessible at: http://www.irs.gov/pub/irs-drop/n-13-61.pdf.



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Pursuant to Internal Revenue Service Circular 230, we hereby inform you that any advice set forth herein with respect to US federal tax issues is not intended or written by The Wagner Law Group to be used and cannot be used, by you or any taxpayer, for the purpose of avoiding penalties that may be imposed on you or any other person under the Internal Revenue Code.


This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.