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Return to Windsor: A Novel Tax Code Correction

Tax Law Certified SpecialistCalifornia Bar Certified Specialist in Tax Law


by Michael Hackman





Here’s the next chapter in the saga known as Edith Schlain Windsor v. The United States of America. (For a quick recap, please read Tax & Estate Planning – Small Win for Same Sex Couples?)

Tax Refund for Same Sex Married Couples

Two representatives of the state of Massachusetts, Senator Elizabeth Warren and Congressman Richard Neal, have introduced a new bill, the Refund Equality Act, to allow same-sex married couples to amend their tax returns as far back as the date of their marriage. But what does this mean, exactly?

The backstory:

Current law allows any married couple who previously filed tax returns as individuals, to amend their returns to file jointly. They may amend up to three years of filings.

The U.S. Supreme Court’s decision to overturn the Defense of Marriage Act (DOMA) in 2013 (this time it was the U.S. v. Windsor), and its follow-up landmark decision in Obergefell v. Hodges in 2015 (which recognized same-sex marriage as a fundamental right protected by the U.S. Constitution), meant, among other important considerations, that gay married couples in any U.S. state could finally match their straight counterparts when it came to yearly tax savings.

But the three year cap created a problem. Same sex couples were out of luck when it came to tax refunds for the years prior to the 2013 Windsor decision, if they were married before then – even though DOMA and bans on gay marriage were deemed unconstitutional.

Revising Tax Code A Matter of Equal Rights

Proposed Bill Tax Refund for Gay Married CouplesThe Refund Equality Act of 2017 seeks to make amends, literally and figuratively. In a press release, Congressman Neal stated:

This bill would codify into law an important correction that would enable same-sex married couples to go back and claim the tax refunds and credits for which they qualify. The Supreme Court has ruled as such, and now it's time for Congress to act and make sure all Americans are treated with the fairness and equality they deserve under the law.   

Before and after the Windsor decision, the Internal Revenue Service lacked the authority to override time limitations in the tax code, but exceptions for other groups did exist. The Refund Equality Act attempts to fix the disparity by creating an exemption specifically for same-sex couples to apply for adjustments dating back to the date of marriage.

The Joint Committee on Taxation estimates $67M would be returned to the qualifying couples.

Every good story has a bit of irony, and this one does as well. Edith Windsor and her spouse may not qualify for a tax refund under this new bill. Why? Under Section 2 of the current bill, an amendment to Internal Revenue Code 1986 would stipulate regarding spouses:

“Who were married under state law (as such term is used in Revenue Ruling 2103-17). . . .”

Windsor married in 2007, which could mean six years of amended returns between then and 2013. But the couple married in Canada!


Michael Hackman is the Chair of both our Tax, and Trust & Estate Planning Practice Groups.

This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.



Environmental Law: H.R. 2936 a Solution to Fire-borrowing?

Environmental Litigation AttorneyEnvironmental Litigation

Stephen T. Holzer



The federal House Natural Resources Committee (HNRC) recently passed H.R. 2936, a bill to improve the overall health of forests and other lands across the country.

The bill was introduced by Bruce Westerman (R-AK), who is Chair of the Oversight and Investigations Subcommittee of HNRC. (Before taking his Congressional seat, Westerman earned a degree in biological and agricultural engineering, and subsequently served as engineer and forester for an engineering consulting firm. See

The Resilient Federal Forests Act, or H.R. 2936, may reduce the risk of wildfire. According to Rob Bishop (R-UT):

Our forest health crisis can no longer be neglected. Active management is needed to reduce the risk of catastrophic wildfire and improve the health and resiliency of our forests and grasslands. More money alone is not the solution. This comprehensive forest management package solves the fire-borrowing problem and gives federal land managers immediate tools to increase the pace and scale of management and restoration projects.

“Fire-borrowing” is the practice of taking funds earmarked for fire prevention, to supplement firefighting instead. The Western Governors’ Association (WGA) addressed the problem in a letter to key congressional leaders late last year:

…the current funding situation has allowed severe wildfires to burn through crippling amounts of the very funds that should instead be used to prevent and reduce wildfire impacts, costs, and safety risks to firefighters and the public.

California Drought Hampers FirefightingThe Association cites an increase in firefighting costs by the U.S. Forest Service (USFS) from 13 percent in 1991, to nearly 50 percent in recent years. That’s quite a chunk of change, especially given the present administration’s intention to cut the forestry budget by $1 billion. On the other hand, some would argue that individual states should pick up any extra expense of fire fighting in their own jurisdictions, inasmuch as such fighting has as its purpose the protection of local ecology and people.

The editorial board of the Fresno Bee, in support of another House bill, the Wildfire Disaster Funding Act, says fire-borrowing is expected to devour up to 70 percent of the USFS’s budget in less than a decade.  Those who believe the planet will get progressively warmer also believe we will see more and more wildfires over the years, triggering even more emergency extinguishing efforts rather than prevention.

Insect infestation and botanical diseases combined with drought (especially here in California) have yielded a lot of dead wood. This over-abundant fuel situation combined with the severe depletion of USFS fire prevention budgets by emergency firefighting efforts creates – dare we say it – a perfect firestorm.

Westerman and other H.R. 2936 supporters hope to reverse the destructive cycle.

Details of the Resilient Federal Forests Act

If passed by both houses of Congress and signed into law, H.R. 2936 may expedite:     

  • Environmental analysis
  • Forest management activities
  • Stewardship and end result contracting
  • Secure rural schools and communities
  • Provide additional funding sources for forest management
  • Protect and manage tribal forests 

Additionally, H.R. 2963 would define categorical exclusions to expedite: 

  • Critical response actions
  • Salvage operations for catastrophic events
  • Plans for successional forestry
  • Plans for roadside projects
  • Reduced risk of wildfire
  • Improve or restore National Forest System Lands 

Part of the bill also addresses litigation, and prohibits fee awards given to plaintiffs and their attorneys, thus reducing the potential for “bounty hunter” litigation.

Where’s the Conflagration?

Westerman’s forest resiliency bill is running into some controversy, primarily from environmentalists who wish to limit logging activities, protect endangered species and preserve the rights of citizens to sue should unforeseen circumstances arise. They claim the bill is riddled with loopholes.

Federal Bill Reduces Forest Fire Fuel

Detailed arguments against passing the Resilient Federal Forest Act are outlined in a press release regarding the “Logging Bill” as it is called by the Western Environmental Law Center: 

  • Unsustainable logging permitted, characterized as a timber industry “wish list”.
  • Landowners with easements over public land will be given ownership.
  • Logging and salvage logging projects, herbicide application, and construction projects encompassing less than 10K acres may dodge environmental surveys and analysis.
  • Endangered Species Act may be subverted.
  • Public oversight severely limited.
  • Funds allocated to land stewardship diverted to USFS to plan timber sales.
  • Attorneys’ fees cannot be awarded if government breaks the law.
  • Forest plans no longer enforceable.
  • Diverts authority to determine impact on endangered species to land management agencies. 

So what’s the best way to save our national forests? 

The aforementioned Wildfire Disaster Funding Act increases the budget for firefighting. That in itself can be a controversial method among certain factions. But adding more federal funding does not come burdened with the same hot-topic environmental concerns of the Westerman bill.

There is yet another issue—whether increased fire-fighting funding is sought at the federal or state level, the perennial question arises as to who is going to pay, and how? The federal government is $20 trillion in debt; and states like California have pension programs that are also deeply in debt and threaten the states’ financial viability.

Are those advocating more fire-fighting funding willing either to pay yet more in taxes or to reduce other government expenditures to prevent the debt from spiraling out of control? There is simply not enough money to do everything we want government to do, all at once.

It’s said that Nero watched Rome burn – and some contend he even started the fire to clear room to build a palace. The question is, should we allow Rome to burn, or control the clearing with H.R. 2936? That remains to be seen.

Stephen T. Holzer is a Business Litigation Attorney and the Chair of our Environmental Practice Group.

This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

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