Photo of Abraham Gutwein

Abraham Gutwein is a senior counsel in the Tax Department. Abe devotes a substantial part of his time to the resolution of tax controversies and advising on the tax aspects of bankruptcy reorganizations.

Abe has advised numerous corporate and individual clients on a broad range of substantive and procedural issues that have arisen during the course of federal, state and local tax disputes, and has participated in the litigation and settlement of many such disputes at the audit and administrative levels and before the courts.

In addition, Abe frequently counsels a broad range of clients on sales tax issues, as well as being involved in all aspects of Proskauer's general tax practice.

Abe advises clients about the complex tax issues that often arise in the course of bankruptcy restructurings, including cancellation of debt income, net operating losses, original issue discount and the operation of the “priority” rules governing governmental tax claims.

Continuing its implementation of the United States Supreme Court decision in U.S. v. Windsor, the Internal Revenue Service (IRS) recently issued Notice 2013-61, which provides guidance for employers to make claims for refunds or adjustments of overpayments of Federal Insurance Contributions Act (FICA) and Federal income tax withholding (employment taxes) for 2013 and prior years with respect to certain fringe benefits and remuneration provided to same-sex spouses of employees.

In Revenue Ruling 2013-17 issued in August, the IRS announced that effective September 16, 2013, for Federal tax purposes, it would recognize same-sex marriages and was adopting a “place of celebration” rule pursuant to which all same-sex couples married in a state or foreign jurisdiction permitting such marriages would be recognized as spouses for federal tax purposes, regardless of their state of residence. It also announced that it intended to distribute streamlined procedures for employees who wish to claim refunds for federal income taxes paid on the value of health coverage to same-sex spouses and guidance for employers who wish to claim refunds for payroll taxes paid on such benefits.

Notice 2013-61 provides these special streamlined administrative procedures. Under these procedures, if an employer that withheld employment taxes for same-sex spouse benefits paid to or on behalf of an employee in the third quarter of 2013 ascertains the amount withheld on those benefits and repays or reimburses the employee for these amounts before filing the third quarter Form 941 (Employer’s Quarterly Federal Tax Return) due on October 31, 2013, an employer need not report these wages and withholding on the third quarter Form 941. If an employer does not repay or reimburse the employee for the overcollected amount before it files the third quarter 2013 Form 941, an employer must report the amount of the overcollection on that return and can use one of two special administrative procedures to make an adjustment or claim a refund.