Same-Sex Married Couples Qualify Under LIHTC Student Rule

On Aug. 29, the IRS and the Treasury Department released Revenue Ruling 2013-17, providing guidance for the treatment of same-sex marriages. Revenue Ruling 2013-17 will be applied prospectively as of Sept. 16, 2013.

With respect to tax credit sites and 100 percent full-time student households, the ruling clarifies that same-sex couples who are married under state law can be found eligible for the LIHTC program under the exception in the student rule [IRC §42(i)(3)(D)(ii)(II)] that allows married couples who file jointly to qualify, even if every household member attends school full time. (Note that this ruling was issued after publication of the September Insider, which mentioned the need for such guidance in "IRS Issues 2013-2014 Priority Guidance Plan.")

According to an update to LIHC Newsletter #52 by Grace Robertson, the exception can be applied retroactively to same-sex couples currently occupying low-income units. For example, if a same-sex married couple is in the process of being evicted because they are both full-time students and were determined to be ineligible for the exception, then the exception is applied retroactively and the couple does not violate the requirement that a unit not be occupied entirely by full-time students.