Tax Gross-Up as an Equalizer for Employees

The issue of same-sex marriage has received an enormous amount of attention recently, not only from the media and the various talking heads espousing both positive and negative commentary but also from state legislatures, the president, and even the U.S. Supreme Court. An individual's marital status is generally determined under state law for purposes of administering federal tax law. Windsor v. United States, 699 F.3d 169, 177 (2d Cir. 2012). However, section 3 of the Defense of Marriage Act (DOMA) provides that in interpreting the meaning of federal law, the word "spouse" "refers only to a person of the opposite sex who is a husband or wife." DOMA currently prevents same-sex couples from taking advantage of the tax benefits that their straight counterparts receive, including the exclusion from income of employer-paid health benefits to an employee's spouse. There has been a growing trend lately whereby an employer will not only pay for the health benefits of its same-sex employees' spouses and domestic partners but also offer a "tax gross-up"—reimbursement for the tax incurred by a same-sex employee as a result of the health benefits paid to that employee's spouse or domestic partner.