How must lawfully married same-sex couples file their Nebraska individual income tax returns, and can they amend prior-year returns?

Plain-English summary

This ruling, issued shortly after the U.S. Supreme Court's decision in Obergefell v. Hodges, explains how lawfully married same-sex couples file Nebraska individual income tax returns. The core rule is Nebraska's general one: your Nebraska filing status follows your federal filing status (Neb. Rev. Stat. § 77-2732). So a couple lawfully married during the tax year must use the same filing status on the Nebraska return as on the federal return, unless Nebraska law allows otherwise.

What's mandatory:

• For tax years 2015 and after, lawfully married same-sex couples must match their federal filing status on the Nebraska return.
• For an original Nebraska return filed on or after June 29, 2015 for a pre-2015 tax year, the couple must also use the same status as their federal return.

What's optional (amended returns for earlier years):

• Tax year 2014, if the couple already filed their original Nebraska return before June 29, 2015: they may (but are not required to) amend to a married filing status (jointly or separately) matching the federal return -- and if they do, all items on the Nebraska return must be adjusted to be consistent with the new married status.
• Years before 2014: the couple may choose to amend to a married filing status matching the federal return, if the time to file an amended return for that year has not expired.

Refund window: Under Neb. Rev. Stat. § 77-2793, a claim for credit or refund of an overpayment generally must be filed within three years from the date the return was filed or two years from when the tax was paid, whichever is later. That window governs how far back an amendment producing a refund can reach.

What this means for you

Married same-sex couples filing in Nebraska

For 2015 forward, file your Nebraska return using the same status as your federal return -- typically married filing jointly or married filing separately. You do not have a separate Nebraska election; Nebraska keys off the federal return.

Couples considering amending an earlier year

For 2014 (if you filed before June 29, 2015) and earlier open years, amending to a married status is your choice, not a requirement. If amending could produce a refund, act within the § 77-2793 window -- three years from filing or two years from payment, whichever is later -- or the claim will be time-barred. Remember to adjust every affected item on the return to match the new married status.

Tax preparers

Confirm the client's federal filing status first; the Nebraska status must conform. Watch the § 77-2793 refund deadline when advising on amendments for pre-2015 years, and note the resident/nonresident nuances in § 77-2732(3) where one spouse is a nonresident or part-year resident.

Common questions

Q: What filing status must a married same-sex couple use in Nebraska?
A: The same status used on their federal income tax return (Neb. Rev. Stat. § 77-2732), for tax years 2015 and after and for original pre-2015 returns filed on or after June 29, 2015.

Q: Do we have to amend our earlier Nebraska returns?
A: No. For 2014 (if filed before June 29, 2015) and earlier open years, amending to a married status is optional, not required.

Q: How long do we have to claim a refund from an amendment?
A: Generally three years from the date the return was filed or two years from when the tax was paid, whichever is later (Neb. Rev. Stat. § 77-2793).

Q: What if we amend -- do we just change the status box?
A: No. All items required to be reported on the Nebraska return must be adjusted to be consistent with the new married filing status.

Citations and references

• Neb. Rev. Stat. § 77-2732 -- Nebraska filing status follows the federal return; a joint federal return generally yields joint and several Nebraska liability, with exceptions where one spouse is a nonresident or part-year resident.
• Neb. Rev. Stat. § 77-2793 -- claim for credit or refund within three years from filing or two years from payment, whichever is later.
• Obergefell v. Hodges (U.S. Supreme Court) -- recognition of lawful same-sex marriages.

Source

• Landing page: https://revenue.nebraska.gov/about/legal-information/revenue-rulings-issued-tax-commissioner
• Original PDF: https://revenue.nebraska.gov/sites/revenue.nebraska.gov/files/doc/legal/rulings/rr221502_same-sex.pdf

Original ruling text

Revenue Ruling 22-15-2

Individual Income Tax

July 7, 2015

Filing an Original or Amended Nebraska Individual Income Tax Return
as a Same-Sex Married Couple
This guidance document is advisory in nature but is binding on the Nebraska Department of Revenue
(Department) until amended. A guidance document does not include internal procedural documents
that only affect the internal operations of the Department and does not impose additional requirements
or penalties on regulated parties or include confidential information or rules and regulations made in
accordance with the Administrative Procedure Act. If you believe that this guidance document imposes
additional requirements or penalties on regulated parties, you may request a review of the document.
This guidance document may change with updated information or added examples. The Department
recommends you do not print this document. Instead, sign up for the subscription service at revenue.
nebraska.gov to get updates on your topics of interest.

Issue
How should same-sex individuals who are lawfully married file their Nebraska individual income tax
returns?

Conclusion
Same-sex couples who were lawfully married during the tax year for which they are filing must file their
Nebraska individual income tax returns using the same filing status as used for their federal income tax
returns unless otherwise allowed by Nebraska law.

Analysis
Neb. Rev. Stat. § 77-2732 provides:
(1) If the federal tax liability of husband or wife is determined on separate federal returns, their tax
liabilities in this state shall be separately determined.
(2) Except as provided in subsection (3) of this section, if the federal tax liability of husband and wife
is determined on a joint federal return, their tax liability shall be determined in this state jointly and
their tax liability shall be joint and several.
(3) If the federal tax liability of husband and wife is determined on a joint federal return and either
husband or wife is a nonresident individual or partial-year resident individual and the other a resident
individual, separate taxes shall be determined on their separate tax liabilities in this state on such
forms as the Tax Commissioner shall prescribe and their tax liability shall be separate unless both
elect to determine their joint tax liability in this state as if both were resident individuals, in which

Nebraska Department of Revenue, PO Box 94818, Lincoln, Nebraska 68509-4818

Revenue Ruling 22-15-2

July 7, 2015

Page 2 of 2

case their tax liability shall be joint and several. If a husband and wife file a joint federal income tax
return but determine their tax liabilities in this state separately, they shall compute their tax liabilities
in this state as if their federal tax liabilities had been determined separately.
(4) During the time a claim for credit or refund may be filed pursuant to section 77-2793, a husband
and wife electing to be taxed as if both were residents of this state may revoke the election by
each filing a separate return on such forms and in such manner as may be required by the Tax
Commissioner.
Pursuant to the decision issued by the Supreme Court of the United States in Obergefell v. Hodges and
Neb. Rev. Stat. § 77-2732, for tax years 2015 and after, lawfully married same-sex couples must file their
Nebraska individual income tax returns using the same filing status as used to file their federal income tax
returns. Additionally, lawfully married same-sex couples who file an original Nebraska individual income
tax return on or after June 29, 2015, for a tax year prior to 2015, must file their returns using the same
filing status as used to file their federal income tax returns.
For tax year 2014, lawfully married same-sex couples who filed their original Nebraska individual
income tax returns before June 29, 2015, may choose, but are not required, to amend their Nebraska
individual income tax returns to change their filing status to married, filing jointly or married, filing
separately as reflected on their federal income tax return, in which case all items required to be reported
on the Nebraska individual income tax return must be adjusted to be consistent with the new married
filing status.
For tax years before 2014, lawfully married same-sex couples may choose, but are not required, to
amend their Nebraska individual income tax returns to change their filing status to married, filing jointly
or married, filing separately as reflected on their federal return, if the time period for filing an amended
income tax return for the tax year has not expired.
Neb. Rev. Stat. § 77-2793 provides that taxpayers may file a claim for credit or refund of an overpayment
of any income tax within three years from the date the return was filed or two years from the time the tax
was paid, whichever period expires later.

APPROVED:

Leonard J. Sloup
Acting Tax Commissioner
July 7, 2015