Life After DOMA: What if You Amend One Year But Not the Next?

Something else that’s been playing on my mind about the DOMA ruling: since amending prior years (2010-2012) to file as married is optional for same-sex married couples, what happens if the couple has carryback or carryforwards that affect multiple years, but they don’t want to amend all affected years?

For example, say it’s beneficial for the couple to amend 2010 but not 2011 or 2012. There’s nothing that requires the couple to also amend 2011 or 2012. But what if 2010 contains a re-adjusted loss or basis calculation (NOL, suspended passive-activity losses, etc.) that carries forward to future years? Not amending 2011 or 2012 means those years are now wrong because the adjustments from 2010 aren’t accounted for. And that creates a trainwreck into 2013.

I feel like I should know the answer to this, but honestly, I don’t. So I’m opening up the floor to other tax pros out there for their perspective.

It seems to me that, even if the couple in our example here chooses not to amend 2011 or 2012, they would need to track any necessary adjustments for those years (based on the 2010 amendment) and use those adjustments to prepare their 2013 return. But I’m not sure that doing it that way is really kosher compared to actually amending 2011 and 2012. And some of it would depend on what, exactly, is being carried forward from year-to-year.