Payroll Manager's - Kluwer Law International
Payroll Manager's - Kluwer Law International
Payroll Manager's - Kluwer Law International
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<strong>Payroll</strong> Manager’s<br />
LetterVolume 26, No. 3 • February 7, 2010<br />
Why You May See More<br />
Form 668-Ws in 2010<br />
Like other creditors in this economy, the Internal<br />
Revenue Service (IRS) is being forced to take sterner<br />
measures to collect what it is owed. IRS levies on<br />
wages and other income jumped from $2.6 million<br />
in fiscal year 2008 to $3.4 million in fiscal 2009, a 30%<br />
increase. The stepped-up collection effort, in turn,<br />
increases the chances that your company will be<br />
receiving Form 668-Ws from the IRS for employees.<br />
Form 668-W, Notice of Levy on Wages, Salary and Other<br />
Income, is the form your company receives when it<br />
must implement a levy on an employee’s wages to<br />
pay off an outstanding tax liability. The form tells<br />
you how much must be withheld, where to remit<br />
payments, and how soon to begin withholding.<br />
WHAT TO DO As soon as you receive Form<br />
668-W, give Parts 2, 3, and 4 to the employee so<br />
he or she can complete the Statement of Exemption<br />
and Filing Status sections of the form. The<br />
employee must return Parts 3 and 4 to you<br />
within three working days.<br />
The IRS recently issued the 2010 tables used for<br />
calculating the amount of salary, wages, and other<br />
income that is exempt from federal tax levy. These<br />
tables must be used by employers when they receive<br />
a Form 668-W. The exemption tables are reproduced<br />
later in this issue.<br />
The IRS revises the exemption tables each year to<br />
take into account inflation and the exempt amount<br />
of wages typically increases from year to year. But<br />
because there has been no inflation recently (or at<br />
least, there has been no inflation according to the<br />
government’s calculations), the exempt amounts for<br />
2010 are the same as for 2009.<br />
Updated statement. If an employee’s filing status<br />
or the number of exemptions claimed changes while<br />
a levy is in effect, the employee may give you a new<br />
statement to change the amount that is exempt.<br />
2010 Levy Tables ................................................................3<br />
Update on COBRA Subsidy Extension ..........................4<br />
How You Handle FICA Overpayments<br />
Determines the Interest the IRS Pays .......................5<br />
Meals and Lodging Help Meet Minimum Wage<br />
Requirement—Maybe ................................................6<br />
<strong>Payroll</strong> Puzzler ..................................................................7<br />
<strong>Payroll</strong> News and Views ..................................................8<br />
Eight Tips If Your<br />
Company Is Audited<br />
By Joanne Mitchell-George<br />
What’s a payroll manager to do when he or she<br />
receives a notice about an employment tax audit?<br />
This may become more commonplace as the IRS<br />
is launching employment tax audits (see the start<br />
of our audit series in the November 21, 2009, issue<br />
of <strong>Payroll</strong> Manager’s Letter ) and the states are also<br />
increasing the number of audits to replace lost revenue<br />
due to the economic downturn. To assuage<br />
your fears, we asked Mindy Harada, CPP, of OS<br />
<strong>Payroll</strong> Consulting, to draw on her experiences as a<br />
former payroll tax auditor for California and former<br />
employee of one of the Big 4 accounting firms.<br />
Here are Harada’s tips on what to do when faced<br />
with an audit.<br />
1. Contact the sender of the audit notice. You<br />
want to find out what initiated the audit so that<br />
you can understand the direction of the audit.<br />
Hopefully, the notice contains a name and phone<br />
number. If so, call the auditor and politely ask<br />
what started the audit. (Often the auditor will tell<br />
you.) You are better off knowing what the auditor<br />
is looking for rather than being surprised.
<strong>Payroll</strong> Manager’s Letter<br />
Editors<br />
Dorinda DeScherer, J.D.<br />
Terence Myers, J.D.<br />
Managing Editors<br />
Joanne Mitchell-George, J.D.<br />
Amy Burke<br />
Elizabeth Venturo<br />
Editorial Director<br />
Ellen Ros<br />
Group Publisher<br />
Paul Gibson<br />
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to provide accurate and authoritative<br />
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or other professional service.<br />
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assistance is required, the services<br />
of a competent professional<br />
person should be sought—From<br />
a Declaration of Principles jointly<br />
adopted by a Committee of the<br />
American Bar Association and a<br />
Committee of Publishers.<br />
© 2010 Aspen Publishers.<br />
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For example, if the audit is to<br />
determine if a worker was an independent<br />
contractor, the Accounts<br />
Payable or HR department would<br />
need to be involved. Or your<br />
company may be audited as part<br />
of a widespread audit targeting a<br />
particular industry. Knowing what<br />
initiated the audit will assist you in<br />
determining where your potential<br />
exposure may be and who you<br />
may need to involve in the audit<br />
process.<br />
2. Determine if you can handle the<br />
audit yourself. Sometimes payroll<br />
managers feel that the receipt of an<br />
audit notice means they must run<br />
to their corporate counsel, outside<br />
attorney, or CPA. Before you do<br />
so, try to assess the situation. Are<br />
you comfortable dealing with the<br />
auditor? Do you have the time to<br />
deal with the auditor’s requests?<br />
Remember, you are probably the<br />
most knowledgeable person about<br />
employment tax issues in your<br />
company.<br />
BE PREPARED If you<br />
determine that you will need<br />
help, be sure to seek a professional<br />
who is well versed in<br />
employment tax law, be it an<br />
attorney, CPA, or consultant.<br />
(Some payroll managers found<br />
that they spent so much time<br />
trying to educate the professionals<br />
about the specifics of the<br />
company’s employment tax situation<br />
that it would have been<br />
easier to handle the audit<br />
requests themselves.) Keep in<br />
mind that the audit is not something<br />
you can ignore.<br />
3. Specify one person as the point<br />
of contact in the company for the<br />
auditor. You don’t want the auditor<br />
asking one person for some<br />
information and another person<br />
for additional information. Let<br />
the auditor know the name of<br />
the person who can be contacted<br />
for all questions and requests<br />
for information. All information<br />
should flow both from and to the<br />
designated point of contact so that<br />
you are aware of the information<br />
provided and the requests made by<br />
the auditor.<br />
4. Try to limit the list of records to<br />
be provided. Often, the auditor<br />
will request more records than<br />
are needed, such as three to four<br />
years’ worth of employment tax<br />
records. Ask the auditor if you can<br />
start with just one year’s worth<br />
of records and try to determine<br />
from the auditor if the problem<br />
being examined is restricted to a<br />
particular time period.<br />
5 . Review any records before<br />
handing them over to the auditor.<br />
Again, you don’t want to be<br />
surprised. Nor do you want any<br />
company employees or executives<br />
to be surprised. If you see<br />
something in the records that you<br />
recognize as a potential problem,<br />
let the proper company officials<br />
know.<br />
6. Be cooperative but not overly<br />
helpful. Gone are the days when<br />
you could stick the auditor in<br />
the “dungeon” to review the<br />
company’s files. You don’t want to<br />
antagonize the auditor. However,<br />
don’t make it so comfortable that<br />
the auditor won’t want to leave.<br />
Put the auditor in a restricted area<br />
such as a conference room. Be sure<br />
the room is not near the accounting<br />
records.<br />
CAUTION You don’t<br />
want to make the mistake that<br />
one company did when it was<br />
audited by the state of California.<br />
The auditor was directed to set<br />
up shop in the file room thereby<br />
having access to all the company<br />
records. This resulted in a $1<br />
million assessment. If the company<br />
representative had taken<br />
the time to meet with the auditor<br />
and had given the auditor<br />
only the requested files, you can<br />
assume that the assessment may<br />
have been considerably less.<br />
7. Advise contractors if the audit is<br />
a worker classification one. If you<br />
2<br />
<strong>Payroll</strong> Manager’s Letter
find out that the auditor is trying to determine<br />
if workers are legitimately independent contractors,<br />
ask the auditor if the contractors will be<br />
contacted. If so, give the contractors a heads up.<br />
You can send the contractors a letter saying that<br />
they may hear from the state or federal government<br />
as part of an inquiry about your company.<br />
You don’t want the contractors to feel as if they<br />
are being audited. (Some states send contractors<br />
a postcard about the audit, which may intimidate<br />
the contractors.) You can provide the contractor<br />
with the IRS Form SS-8 so that the contractor can<br />
be familiar with the type of questions that the<br />
auditor may ask.<br />
DON’T COACH In your letter, you can<br />
let the contractor know that the company contact<br />
is available to talk. Although you want to<br />
put the contractors at ease, be careful not to<br />
tell them what they can and can’t say. You<br />
don’t want it to sound like you put the words<br />
into their mouths.<br />
8. Get a sense of how the audit is going. Generally,<br />
the auditor will be on site for only a day (sometimes<br />
longer for multinational companies). Any follow-up<br />
can be by email or phone. Before the auditor leaves,<br />
ask if he or she can give you preliminary findings.<br />
Depending on the auditor, you may be able to dispute<br />
the findings at the early stage. Sometimes the<br />
auditor will give you the preliminary findings to<br />
review and suggest you get back to the auditor with<br />
any additional information if needed. Always keep<br />
in mind that you have the ability to appeal any decision<br />
with which you don’t agree.<br />
REMAIN CALM Although the thought<br />
of an audit can be daunting, remember to follow<br />
the steps above to successfully survive an<br />
employment tax audit.<br />
2010 Levy Tables<br />
<strong>Payroll</strong> Manager’s Letter 3
Update on COBRA Subsidy Extension<br />
As we reported in the last issue of <strong>Payroll</strong><br />
Manager’s Letter , the COBRA health care subsidy—<br />
and the related payroll tax credit for employers—<br />
has been extended. And that means your payroll<br />
department will be dealing with the subsidy and<br />
the related employment tax credit for an extended<br />
period of time. The Department of Labor (DOL)<br />
recently issued guidance on the subsidy extension<br />
[DOL Fact Sheet, COBRA Premium Reduction<br />
(Jan. 8, 2010)].<br />
Basic rules. The COBRA subsidy allows eligible<br />
individuals who lose their jobs and their family<br />
members to obtain continued health care coverage<br />
under an employer plan by paying just 35% of the<br />
otherwise required premium, with the employer<br />
picking up the remaining 65% of the cost. An<br />
employer providing the COBRA subsidy can then<br />
claim an offsetting credit against its payroll tax<br />
liabilities for its 65% of the cost.<br />
As originally enacted in early 2009, individuals<br />
were eligible for the subsidy if they were involuntarily<br />
terminated from employment during the<br />
period beginning September 1, 2008, and ending<br />
December 31, 2008. The subsidy itself applied for<br />
periods of health coverage that began on or after<br />
February 17, 2009, and lasted for a period of nine<br />
months.<br />
New rules. The Department of Defense Appropriations<br />
Act of 2010 continues the COBRA eligibility<br />
period for two months through February 28, 2010.<br />
Consequently, employees who lose their jobs in the<br />
first two months of 2010 will now qualify for the<br />
subsidy.<br />
In addition, the new law extends the subsidy<br />
from nine months to 15 months. Significantly, this<br />
extension applies to all eligible individuals—both<br />
individuals who become newly eligible in 2010 and<br />
individuals who were already receiving the subsidy<br />
in 2009.<br />
KEY POINT The new law does not<br />
extend the maximum COBRA coverage<br />
period beyond the 18 months that normally<br />
applies in the case of a termination of employment.<br />
As a result, individuals who became<br />
eligible for COBRA in September 2008 will<br />
still max out their COBRA coverage at the end<br />
of February.<br />
Transition rules. Because the subsidy period was<br />
originally limited to nine months, employees who<br />
were eligible for the subsidy at the outset reached<br />
the end of their subsidy period last November.<br />
However, the extension of the subsidy period to<br />
15 months was not enacted until mid-December. As<br />
a result, these employees may have either dropped<br />
COBRA coverage starting in December or continued<br />
the coverage by paying 100 percent of the<br />
premium.<br />
Individuals caught in this “transition” must<br />
receive notice of the changes to subsidy within 60<br />
days of the first day of the transition period. In other<br />
words, an employee whose nine-month subsidy ran<br />
out at the end of November should have received<br />
notice of the new law change by the end of January<br />
2010.<br />
According to the DOL, individuals who<br />
dropped COBRA coverage at the end of the<br />
nine-month subsidy period have until the later<br />
of (a) February 17, 2010, (b) 30 days after the notice<br />
of the extension is provided, or (c) the end of the<br />
otherwise applicable payment grace period to<br />
restore coverage and pay the premiums for the<br />
transition period.<br />
PAYROLL IMPACT Because of this<br />
transition, some eligible individuals will be<br />
paying premiums and receiving subsidies in<br />
2010 for coverage provided in December 2009.<br />
Despite the mismatch, the payroll tax credit<br />
for these subsidies should be claimed for 2010,<br />
not 2009. Internal Revenue Service guidance<br />
provides that the credit should be claimed on<br />
the employment tax return for the quarter in<br />
which the subsidy is provided or for a later<br />
quarter in the same calendar year [COBRA:<br />
Questions and Answers for Employers,<br />
Q&A FP-15].<br />
Individuals who continued coverage during the<br />
transition period by paying full premiums are<br />
also entitled to retroactive subsidies. The DOL<br />
guidance says these individuals should contact<br />
the plan administrator or sponsoring employer<br />
to discuss whether the subsidy will be provided<br />
either as a credit for future months of coverage or<br />
as a reimbursement of the premium overpayment.<br />
Here again, the employment tax credit for these<br />
subsidies should be claimed for the quarter in 2010<br />
when they are provided (whether in the form of<br />
a credit or reimbursement) or for a later quarter<br />
in 2010.<br />
4 <strong>Payroll</strong> Manager’s Letter
How You Handle FICA Overpayments Determines<br />
The Interest the IRS Pays<br />
The Internal Revenue Service (IRS) pays interest<br />
when refund claims are filed for overpayments of<br />
FICA. But according to newly released IRS guidance,<br />
the amount of interest paid can depend on how an<br />
employer handles the refund claim [Chief Counsel<br />
Advice 200951033].<br />
Interest rates. The tax law provides that a<br />
taxpayer filing a refund claim for an erroneous<br />
overpayment of taxes is entitled to interest accrued<br />
from the date of the overpayment [I.R.C. § 6611].<br />
There are three different interest rates that<br />
can be used to calculate the interest owed on<br />
overpayments:<br />
1. Interest owed by the IRS to noncorporate taxpayers<br />
is calculated at a “regular” rate equal to the<br />
Adjusted Federal Rate (AFR) plus 3 percentage<br />
points;<br />
2. The “regular” interest rate for refunds due corporations<br />
is equal to the AFR plus 2 percentage<br />
points; and<br />
3. To the extent that an overpayment of tax by<br />
a corporation exceeds $10,000, interest on a<br />
refund is computed at the AFR plus 0.5%. (This<br />
rate is often referred to as the “GATT” rate<br />
because it was enacted as part of a law implementing<br />
the Uruguay Round of the General<br />
Agreement on Tariffs and Trade (GATT))<br />
[I.R.C. § 6621(a)].<br />
FICA refund claims. Since FICA taxes are shared<br />
by employers and employees, but refund claims are<br />
usually initiated by employers (by filing Form 941-<br />
X), the IRS has set up procedures designed to protect<br />
employees’ rights.<br />
Generally speaking, an employer cannot file a<br />
refund claim for its share of FICA taxes unless it also<br />
files a claim for a refund of the employee’s share. To<br />
do that, the employer must either (1) repay or reimburse<br />
the employee for the employee’s share of FICA<br />
before filing the claim, or (2) receive written consent<br />
from the employee to file a refund claim on behalf of<br />
the employee, in which case the employer refunds<br />
the employee’s share after getting the gross refund<br />
from the IRS.<br />
The repay/written consent requirement does<br />
not apply, of course, if no FICA was erroneously<br />
withheld from the employee’s pay (i.e., the employee<br />
has no right to a refund). This requirement also<br />
does not apply if the employer is unable to locate<br />
the employee or the employee refuses to provide<br />
the necessary written consent. In these situations,<br />
an employer may file a refund claim for only<br />
the employer’s share of FICA [Reg. § 31.6402(a)-<br />
2(a)(1)(ii)].<br />
New IRS Guidance<br />
XYZ Corporation deducted the employee’s<br />
share of FICA tax from its employee’s wages. XYZ<br />
paid that amount and its share of FICA tax to the<br />
IRS. XYZ later discovers that there was an overpayment<br />
of FICA tax. XYZ files a claim for refund<br />
of the overpayment plus interest. The refund<br />
claim indicates that (1) XYZ repaid or reimbursed<br />
some employees prior to filing the claim, (2)<br />
other employees have consented to having XYZ<br />
pursue the FICA claim on their behalf, and (3) in<br />
some cases, XYZ is filing only for its share of the<br />
refund.<br />
Which interest rates apply to the FICA<br />
overpayments?<br />
IRS answer. The IRS may refund an overpayment<br />
of tax, including interest, only to the taxpayer<br />
that made the overpayment. Thus, it is important<br />
to establish who “paid” the FICA taxes in XYZ’s<br />
case.<br />
• When a corporation is permitted to file a refund<br />
claim for only its own share of the FICA tax<br />
(Situation 3 above), interest will be calculated<br />
at the regular corporate rate or the GATT rate if<br />
applicable.<br />
• If a corporate employer repays a FICA tax overpayment<br />
to its employee and then files a claim for<br />
refund (Situation 1 above), the overpayment is<br />
generally considered to be “paid” by the employer.<br />
Thus, interest on the overpayment is calculated<br />
using either the regular corporate rate or the<br />
GATT rate.<br />
• Where the corporation files a claim on behalf of<br />
an employee and the refund plus interest will<br />
be paid over to the employee by the employer<br />
(Situation 2 above), then the corporate interest<br />
rates do not apply to the employee’s share of the<br />
FICA overpayment; instead, the regular noncorporate<br />
rate applies. This is because the employee<br />
share is considered the employee’s refund and<br />
failure to pay the correct interest to the employee<br />
would underpay the employee. The interest on<br />
the employer’s share of the overpayment is computed<br />
using either the regular corporate rate or<br />
the GATT rate.<br />
<strong>Payroll</strong> Manager’s Letter 5
Meals and Lodging Help Meet Minimum<br />
Wage Requirement—Maybe<br />
For minimum wage purposes, the Fair Labor<br />
Standards Act (FLSA) does not require your company<br />
to pay the required $7.25 per hour solely in<br />
cash. In determining whether the minimum wage<br />
requirement has been met, your company may<br />
include the reasonable cost of furnished meals, lodging,<br />
and the like. However, as a new case illustrates,<br />
you cannot lump these items in with cash wages<br />
after your company’s wage rate has been challenged<br />
by a worker or the government; you must treat them<br />
as part of a worker’s wage package right from the<br />
get-go.<br />
Under the FLSA, wages include “the reasonable<br />
cost … to the employer of furnishing such employee<br />
with board, lodging, or other facilities, if such board,<br />
lodging or other facilities are customarily furnished<br />
by such employer to his employees” [29 U.S.C.<br />
§ 202(m)]. It is also essential that an employee’s<br />
acceptance of these benefits be voluntary and<br />
uncoerced [29 C.F.R. § 531.30].<br />
Example. Bill Smith works 40 hours per week<br />
for XYZ Inc. He is paid $200 a week cash wages.<br />
In addition, Smith accepts lodging and meals from<br />
XYZ as compensation for work he does. The reasonable<br />
cost of the meals and lodging provided is<br />
$120 a week. For minimum wage purposes, Smith’s<br />
weekly earnings are $200.00 + $120.00 = $320.00.<br />
Even though Smith receives only $5 per hour in cash<br />
wages, the meals and lodging bring his wages up<br />
to $8 per hour ($300/40 hours). So XYZ meets the<br />
FLSA’s minimum wage requirements.<br />
“Reasonable cost” cannot exceed the employer’s<br />
actual cost for the meals, lodging, or other facilities.<br />
This excludes any profit to the employer or to any<br />
person affiliated with the employer. For example,<br />
profits to an employer’s close relative, business<br />
associate, or agent, or to a business closely connected<br />
with an employer, will be excluded from the<br />
computation of wages.<br />
Calculation of the reasonable cost to the employer<br />
may factor in the costs of operation and maintenance,<br />
including adequate depreciation plus a<br />
reasonable allowance for interest on the depreciated<br />
amount of capital invested by the employer. In any<br />
case, however, the maximum amount allowable as<br />
reasonable cost to the employer will be the fair rental<br />
value of the lodging and the fair price of the meals<br />
or facilities offered for sale [29 C.F.R. § 531.3].<br />
It makes no difference whether the cost of meals<br />
and lodging is deducted from the amounts required<br />
to be paid as wages, or whether the cost of such<br />
facilities is added to the amount paid as wages<br />
[29 C.F.R. § 531.36]. For example, the minimum<br />
wage requirements can be satisfied either by paying<br />
a wage at or above $7.25 per hour and deducting the<br />
applicable cost of an apartment or by paying a cash<br />
wage below $7.25 and adding the fair rental value<br />
of the apartment to bring the wages over $7.25 per<br />
hour.<br />
“Other facilities” includes:<br />
1. Meals furnished at company restaurants or cafeterias<br />
or by hospitals, hotels, or restaurants to their<br />
employees;<br />
2. Meals, dormitory rooms, and tuition furnished by<br />
a college to its student employees;<br />
3. Housing furnished for dwelling purposes;<br />
4. General merchandise furnished at company stores<br />
and commissaries (including articles of food,<br />
clothing, and household effects);<br />
5. Fuel, electricity, water, and gas furnished for the<br />
noncommercial personal use of the employee; and<br />
6. Transportation furnished employees between<br />
their homes and work where the travel time does<br />
not constitute hours worked compensable under<br />
the FLSA and the transportation is not an incident<br />
of and necessary to the employment.<br />
To qualify as wages, the facilities must have been<br />
furnished for the benefit of the employee and not the<br />
employer. Housing on company premises furnished<br />
to employees has been ruled to constitute part of<br />
wages, despite arguments that such housing is<br />
provided primarily for the benefit of the employer.<br />
Documentation Is a Must<br />
The FLSA, and many state wage-hour laws as<br />
well, requires that records be kept detailing the cost<br />
or value of the lodging and meals provided. Failure<br />
to keep these records can prevent an employer from<br />
including the meals and lodging in wages.<br />
New case in point. Nedra Jones worked for an<br />
assisted living facility in Maryland. She filed a lawsuit<br />
against her employer for, among other things,<br />
its failure to pay her the required minimum wage<br />
under the FLSA and Maryland law. The employer<br />
argued that Jones was adequately paid through cash<br />
and benefits, including room and board provided<br />
to her. The employer said that, on top of her cash<br />
wages, Jones received $654 per month in room and<br />
board that should be counted to make up the total<br />
wages paid to her.<br />
6 <strong>Payroll</strong> Manager’s Letter
A federal district court ruled against the employer.<br />
The employer acknowledged that it did not provide<br />
Jones with any documentation showing the amount<br />
of any deductions for room or board taken from her<br />
wages.<br />
Because of the lack of documentation, the court<br />
said that any room and board provided for Jones<br />
could not be counted under either Maryland or the<br />
FLSA. FLSA regulations require an employer who<br />
deducts board, lodging, and other facilities from an<br />
employee’s wages to maintain and preserve records<br />
substantiating these costs on a workweek basis<br />
[29 C.F.R. § 516.27(a) and (b)]. Jones’s employer<br />
maintained no such records.<br />
In addition, Maryland law requires that if an<br />
employer plans to include board and lodging as part<br />
of a wage plan for an employee, the employer may<br />
not do so unless it receives written authorization by<br />
the employee [Md. Code. Ann., Lab. & Empl., § 3-503].<br />
Jones’s employer never received this authorization.<br />
According to the court, the failure to substantiate<br />
the cost of the room and board, the failure to obtain<br />
written authorization from Jones, and the failure to<br />
provide her with documentation of the amount of<br />
room and board all precluded the employer from<br />
counting room and board as wages paid to Jones<br />
[Jones v. Way of Hope, Inc, Civ. No. L-08-1517<br />
(Md., 11-6-09)].<br />
<strong>Payroll</strong> Puzzler<br />
Q. Is a signing bonus paid to a nonexempt<br />
new hire included in the regular rate of pay for<br />
computing overtime?<br />
A. Yes. A bonus is excluded from an<br />
employee’s regular rate of pay if it is “discretionary,”<br />
but a signing bonus does not qualify as a<br />
discretionary bonus. Under Department of Labor<br />
regulations, a bonus is discretionary only if it is<br />
determined by the employer without prior promise<br />
or agreement. The employee must have no<br />
contract right, express or implied, to any amount.<br />
If the employer promises in advance to pay a<br />
bonus, the employer has abandoned its discretion<br />
with regard to the bonus [29 C.F.R. § 778.211].<br />
Thus, any bonus promised to an individual upon<br />
acceptance of a job offer would not be considered<br />
discretionary.<br />
Q. My company reimbursed the travel<br />
expenses of several job applicants. Are these<br />
reimbursements taxable to the applicants if<br />
we received the required documentation to<br />
substantiate their expenses? Does it make<br />
any difference whether the individuals were<br />
actually hired or not?<br />
A. The IRS addressed this question in a ruling<br />
issued way back in 1963 [Rev. Rul. 63-77, 1963-<br />
1 C.B. 177]. The IRS said that reimbursements<br />
for transportation, meals, and lodging paid to<br />
prospective employees for traveling to a job<br />
interview site were not included in taxable wages<br />
because the individuals were not yet employees.<br />
The IRS also stated that the reimbursements need<br />
not be included in the individuals’ gross income<br />
as long as the reimbursements did not exceed the<br />
individuals’ expenses. Thus, the reimbursements<br />
were not subject to employment taxes and<br />
did not have to be reported on a Form W-2 or<br />
Form 1099.<br />
However, because of subsequent developments,<br />
a little question mark may hang over this<br />
ruling. In 1984, Congress enacted detailed rules<br />
governing fringe benefits, including “working<br />
condition” fringe benefits. Under these rules,<br />
expense reimbursements are excluded from an<br />
individual’s income if he or she would be entitled<br />
to deduct the expenses as business expenses<br />
[Reg. § 1.132-5(a)(1)]. An individual is entitled to<br />
deduct job search expenses so reimbursements for<br />
these expenses meet the general working condition<br />
fringe benefit requirement. However, here’s<br />
the catch: The working condition fringe benefit<br />
exclusion applies only to a company’s current<br />
employees and independent contractors. It does<br />
not cover prospective employees, especially if<br />
they are never actually hired.<br />
Where does this leave travel reimbursements<br />
to prospective employees? Given the fact that the<br />
IRS has not specifically addressed this issue since<br />
the fringe benefit rules were enacted and that it<br />
has never revoked the 1963 ruling, you are probably<br />
on safe ground treating the reimbursements<br />
as tax-free.<br />
<strong>Payroll</strong> Manager’s Letter 7
<strong>Payroll</strong> News and Views<br />
E-Verify. The U.S. Citizenship and<br />
Immigration Services (USCIS) has announced<br />
plans to conduct an Internet and telephone<br />
survey on the federal government’s E-Verify<br />
program [F.R. Doc. E9–31423, 1-5-10]. E-Verify is<br />
the Web-based program operated by USCIS and<br />
the Social Security Administration that allows<br />
participating employers to electronically verify<br />
the employment eligibility of their newly hired<br />
employees. The survey will be used to “evaluate<br />
how the E-Verify program is working nationally<br />
and among a specific group of employers,<br />
to determine whether employers are using the<br />
program as intended and to evaluate positive and<br />
negative impacts of the program in a mandatory<br />
environment,” said USCIS.<br />
Job outlook for 2010. While employers<br />
continue to closely monitor the progress of recovery<br />
for the U.S. economy, they are beginning to<br />
consider hiring strategies designed to preserve<br />
the health and growth of their businesses for the<br />
future, according to CareerBuilder’s 2010 Job<br />
Forecast. Twenty percent of employers plan to<br />
increase their number of full-time, permanent<br />
employees in 2010, up from 14% in 2009. Nine<br />
percent say they plan to decrease headcount in<br />
2010, down sharply from 16% in 2009. Sixty-one<br />
percent don’t plan to change staff levels, while<br />
10% say they are unsure. Comparing selected<br />
industries, hiring is expected to increase in information<br />
technology, manufacturing, financial<br />
services, professional and business services, and<br />
sales in the coming year.<br />
Pay outlook for 2010. Having struggled with<br />
cost-containment challenges during the past<br />
18 months, which resulted in workforce reductions<br />
and salary freezes, more organizations are<br />
planning to grant pay increases in 2010 as the<br />
economy begins to show signs of improvement,<br />
according to Mercer’s 2009/2010 U.S. Compensation<br />
Planning Survey Update. In fact, the HR<br />
consulting and financing firm’s update revealed<br />
that the number of organizations freezing salaries<br />
has declined compared to last year. While<br />
challenging economic conditions drove 30% of<br />
employers to freeze salaries across the board<br />
in 2009, just 14% are planning across-the-board<br />
freezes in 2010. Of those employers granting base<br />
pay increases, the average increase is expected to<br />
be 2.7% in 2010.<br />
White-collar exemption. An equipment rental<br />
dispatcher fell within the administrative exemption<br />
from overtime in the Fair Labor Standards<br />
Act (FLSA), but not the executive exemption, a<br />
federal district court in Florida has ruled. The<br />
dispatcher’s primary duty was managerial, as<br />
he was the only dispatcher, directed work, and<br />
picked the type of equipment that would be used<br />
to fill orders. He also regularly directed the work<br />
of crane operators. But the court determined that<br />
the dispatcher did not have hiring and firing<br />
authority and, thus, was not an exempt employee<br />
under the executive exemption. On the other<br />
hand, the dispatcher’s maintenance of the schedule<br />
put him in charge of one of the company’s<br />
most important tasks. Thus, his primary duties<br />
were directly related to the company’s general<br />
business operations. Moreover, in performing<br />
those duties, the dispatcher had to exercise discretion<br />
and independent judgment. Thus, the<br />
court found that he qualified for the administrative<br />
exemption [Rock v. Sunbelt Cranes, 8:08-cv-<br />
00838-T-17-EAK-EAJ (M.D. Fla., 10-26-09)].<br />
Tax amnesties in New York and Pennsylvania.<br />
A recently enacted law authorizes the Penalty and<br />
Interest Discount (PAID) program in New York<br />
[L. 2009, Ch. 501 (A.B. 21)]. The program began<br />
on January 15, 2010, and requires all payments<br />
to be made by the program’s expiration date on<br />
March 15, 2010. Under the program, taxpayers<br />
are liable for 80% of accrued penalty and interest<br />
on unpaid bills that were issued on or before<br />
December 31, 2003, or 50% of accrued penalty<br />
and interest on unpaid bills that were issued after<br />
December 31, 2003, and on or before December<br />
31, 2006. Next door in Pennsylvania, the Department<br />
of Revenue has issued guidelines for a<br />
2010 tax amnesty program. The program period<br />
will begin on April 26, 2010, and end on June 18,<br />
2010. To participate, taxpayers will need to file<br />
an online amnesty return, file all delinquent tax<br />
returns, and make the required payment within<br />
the Amnesty Period. All penalties and one half of<br />
the interest due will be waived [2010 Tax Amnesty<br />
Program Guidelines, Pennsylvania Department of<br />
Revenue, 12-5-09].<br />
For customer service, call 800-234-1660. www.aspenpublishers.com To subscribe, call 800-638-8437.<br />
February 7, 2010/9900525344