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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 />

This publication is designed<br />

to provide accurate and authoritative<br />

information in regard to<br />

the subject matter covered. It<br />

is sold with the understanding<br />

that the publisher is not engaged<br />

in rendering legal, accounting,<br />

or other professional service.<br />

If legal advice or other expert<br />

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 />

All Rights Reserved.<br />

This material may not be used,<br />

published, rewritten, copied,<br />

redistributed or used to create<br />

any derivative works without<br />

prior written permission from<br />

the publisher.<br />

<strong>Payroll</strong> Manager’s Letter<br />

(ISSN 0895-7975) is published<br />

semimonthly by 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

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