Chicago Chapter Tax Executives Institute February 25, 2014

Chicago Chapter Tax Executives Institute February 25, 2014
Current Developments in Compensation and Benefits Mary (“Handy”) Hevener (202) Andy R. Anderson (312) Morgan, Lewis & Bockius LLP

Final Affordable Care Act Shared Responsibility Rules
Andy R. Anderson (312) Morgan, Lewis & Bockius LLP

Final Shared Responsibility Rules
Released Prior day ( ) was a key date in numerous transition rules Finalizes proposed rules from late 2012 Key concepts: Very similar in scope and content to proposed rules Retains and expands proposed transition rules Retains and expands full-time employee determinations Retains and clarifies affordability safe harbors

Confirms 2015 Shared Responsibility effective date for large (100 or more FTE/FTeq) employers Expands proposed 95/5% “offer” rule to 70/30% for 2015, but can still lead to “inadequate coverage” penalty The 70% expansion creates new planning opportunities Delays Shared Responsibility effective date until 2016 for mid-size employers (50 to 99 FTE/FTeq) Numerous requirements and a necessary certification in order to qualify Places new emphasis on when an employer is “small” enough to escape Shared Responsibility rules for 2015

Lots (and lots, and lots) of small detail changes that are grounded in comments to the proposed rules and special interest lobbying Final Regulations are generally “clean” for 2016 and beyond Special rules, transition relief, etc. are found in the preamble to the final rules, the preamble to the proposed rules, and releases that predate the proposed rules Must, as a result, check multiple sources, particularly for 2015 specifics

Preamble nice overview of law, prior guidance, and proposed rules See also new Q&As on IRS website: Imbedded expectation for more “subregulatory” guidance in a number of areas Such as additional FAQs, Q&As, etc. Next up: Reporting Rules

Prior/Future Material
ACA considerations for employers ACA considerations for group health plans ACA considerations for individuals Companion LawFlash to Final Rules is in the pipeline

Who Is Subject to the Shared Responsibility Rules in 2015?
Only employers with 100 or more FT/FTeq employees On average, at least 100 FT/FTeq employees on business days during the previous calendar year (initially 2014) Six-consecutive-month transition rule for 2014 Determine if “large” by adding together: FT employees 30 hours per week (or 130 hours per month) FT employee equivalents Total hours worked by all PT employees divided by 120 From all controlled group employers Reserved for government and church employers

Special rules for: Seasonal employees (reasonable good faith definition) New employers (look at reasonable expectation for current year) Counts all employees—even those eligible for Medicare, Medicaid, or other employer coverage Exempts most overseas employees Predecessor employers (still reserved for future guidance) Most employers will know, well in advance of 2015, whether they are subject to the employer mandate

Expanded to include employers with FT employees Applied the same as 2015 rules for larger employers Measured on the basis of 2014 workforce Must maintain size and hours of workforce for period from to Must maintain previously offered coverage (if any) from Must certify compliance as part of section 6056 reporting Which apparently will apply to such employers for 2015 Does not generally carryover other 2015 transition rules

Non-Calendar Year Plans
There are revised and new (but still limited) delayed effective date rules for non-calendar year plans existing (and not modified) after Delayed until start of non-calendar year for any employee eligible to participate Delayed until start of non-calendar year for all employees (whether previously eligible or not) if: Offered plan to at least 1/3 of all employees at most recent OE before ; or Covered at least 1/4 of all employees on a day in 12-month period ending

Non-Calendar Year Plans
Delayed until start of non-calendar year for FT employees (whether previously eligible or not) if: Offered plan to at least 1/2 of ACA FT employees at most recent OE before ; or Covered at least 1/3 of ACA FT employees on a day in 12-month period ending Useful for employers with a significant percentage of employees who will not become ACA FT employees Also applies to 2016 delay for smaller employers Regardless, must do Section 6056 reporting for all of 2015

Shared Responsibility Basics
No Coverage Penalty Inadequate Coverage Penalty If employer does not offer Minimum Essential Coverage to 95% of its FT employees If employer offers coverage to its FT employees, but the coverage is not Affordable and/or does not provide Minimum Value AND One FT employee enrolls in an Exchange and receives a subsidy Employer must pay penalty of: $2,000 (indexed) for all FT employees (less 30) (including those receiving coverage) $3,000 (indexed) for each FT employee receiving a subsidy (capped at the maximum No Coverage Penalty)

No Coverage Penalty Offer
At least 95% of all FT employees (and their children in 2016) or at least 70% for 2015 FT employee = 30+ hours per week (130+ hours per month) Treasury refused to increase above 30 hours Children now excludes foster children and stepchildren Must offer coverage through end of month in which child attains age 26 Excludes children who are not citizens or residents of the U.S. But includes children resident in Canada or Mexico Qualifying coverage . . . “Minimum Essential Coverage” (basically any ER-sponsored plan)

No Coverage Penalty Or pay No Coverage penalty
$2,000 times all FT employees (minus 30; 80 for 2015 only) Note: employers who have less than 30 FT employees (or 80 for 2015) will pay no penalty Only applies if one FT employee enrolls in Exchange and receives a subsidy (tax credit or cost-sharing reduction, called a “Section 1411 Certification”) No subsidy available if: Eligible for Medicaid ( % of federal poverty level) Household income is more than 400% of federal poverty level

No Coverage Penalty Offer includes offer of coverage from:
Calculated on ALL FT employees of each controlled group member separately 30/80 employee reduction apportioned across controlled group members Offer includes offer of coverage from: Multiemployer/single-employer Taft-Harley plans Additional interim guidance for near future PEOs (if client pays more for the offered coverage) MEWAs

No Coverage Penalty Includes Evergreen offers
Offer by one controlled group member satisfies obligation for all members Useful for large single plan across the entire controlled group No specific rules for demonstrating an offer was made Limited “no offer” opportunity for coverage providing minimum value that is free or meets Federal poverty level affordability safe harbor

Inadequate Coverage Penalty
Offer To all FT employees (and their children in 2016)—or fail to offer to up to 5% (up to 30% in 2015) of FT employees FT employee = 30+ hours per week (130+ hours per month) Children now excludes foster children and stepchildren Must offer coverage through end of month in which child attains age 26 Excludes children who are not citizens or residents of the U.S. But includes children resident in Canada or Mexico

Offer Qualifying coverage Is “Minimum Essential Coverage” and Provides “Minimum Value” That is Affordable Not more than 9.5% of household income for employee-only coverage Safe harbors (discussed later)

Or pay Inadequate Coverage penalty $3,000 per FT employee who receives subsidy (Section 1411 Certification) for Exchange coverage (capped at maximum No Coverage penalty) No subsidy available if: Eligible for Medicaid ( % of federal poverty level) Household income is more than 400% of federal poverty level Applied separately to each controlled group member Limits scope of penalty to only part of controlled group

Who Is a Full-Time Employee?
Average 30 hours of service/week For non-hourly employees, 8 hours/day or 40 hours/week equivalencies 130 hours/month can be used Different from large employer determination No need to combine PT employees into full-time equivalents Determined on a controlled group basis Very challenging for transfers within a controlled group

Determination of FT status Under statute, this is determined monthly on an ongoing basis Final rules contain new details and procedures for determining status on a monthly basis Plugs some of the prior holes applicable to monthly determinations Very complicated new final rules for when individuals move between different methods of determining status over their careers Special phased retirement (and similar situations) rule Employees whose status is clearly full time when hired must be offered coverage within 3 months of hire

Voluntary safe harbor method for new variable hour, seasonal, and part-time employees Permits employers to calculate employee hours during an initial measurement period (3-12 months after employment) and lock in the resulting status for the following stability period (6-12 months) Employer can define periods, subject to consistency, based on categories of employees (i.e., salaried/hourly, union/non-union, different entities, different states) Short (less than 2 months) administration period to start coverage if use full initial measurement period Will be complicated to track and implement Note new part-time requirements!!

Voluntary safe harbor method for ongoing employees Permits employers to calculate employee hours during a consistent ongoing measurement period (3-12 months) and lock in the resulting status for the following stability period (6-12 months) Employer can define periods, subject to consistency, based on categories of employees (i.e., salaried/hourly, union/non-union, different entities, different states) Expected to be tied to open enrollment process and timing 90-day administration period to start coverage Must transition new variable hour, seasonal, and part-time employees to this ongoing measurement process

Special rules for: Seasonal employees (6 month rule) Volunteers Schools Adjunct faculty (new 2-1/2 hour equivalency) Rehired employees (now 13 consecutive weeks—still 26 for educational organizations) International employees and transfers Temporary staffing firms Section 3508 employees Cruise ships

U.S. territories Student work-study On call hours Layover hours Religious orders Home healthcare workers

When Is Coverage Affordable?
Necessary to avoid Inadequate Coverage penalty Premium for cheapest employee-only coverage must be less than 9.5% of household income No cap on spouse/children premiums May be up to COBRA cost of coverage Three optional safe harbors remain and are clarified: W-2: Premium cannot exceed 9.5% of the employee’s W-2 wages from the employer for that year New special rules for partial years

When Is Coverage Affordable?
Rate of Pay – Premium cannot exceed 9.5% of an amount equal to 130 hours multiplied by the lower of the hourly rate of pay on the first day of coverage or the lowest hourly rate of pay during each month (if reduced) Alternate is monthly salary on the first day of the coverage period—which cannot be reduced Federal Poverty Line – Premium cannot exceed 9.5% of an amount equal to the Federal poverty line for the year divided by 12 Can use the most recently published guidelines in effect 6 months prior to the beginning of the plan year

Lingering Concerns Nondiscrimination rules ERISA section 510 claims
Particularly worrisome if employer has different health coverage across its controlled group ERISA section 510 claims ACA Whistleblower claims Cadillac Tax Some coverage may be too rich for 2018 Is 2015/2016 the time to cut back?

New Developments in Payroll Tax Controversies: Traveling Employees Crossing U.S. and State Borders, and Developments in Independent Contractor Audits Mary (“Handy”) Hevener (202) Morgan, Lewis & Bockius LLP

Overview Federal Data Collection Program Audits
Payroll Audits of Expatriate and Impatriate Employees Wage Recharacterization Audits State Payroll Tax Audits of Traveling Employees Developments in Independent Contractor Audits

Data Collection and Fringe Benefits AUDITS

Data Collection and Fringe Benefit Audits, Overview
Since 2009, the IRS has audited over 2,000 employers (under a program that the IRS initially hoped would cover examinations of 6,000 taxpayers during ). Most of these audits were of small companies, with an intention to extrapolate the audit results, to measure “business’s compliance” with worker classification, fringe benefit, and payroll tax laws. The IRS’s first extrapolation report was deemed, in May, 2011, by the Treasury Inspector General for Tax Administration to be “too small of a sample to provide meaningful compliance estimates,” so the IRS was required to restart big company audits in 2012 (most in Silicon Valley).

Data Collection and Fringe Benefit Audits
Initial IDRs in these audits cover hundreds of issues, and can take over a year to complete. There are typically five basic areas identified for attention during these audits. (Call Mary Hevener for samples of initial IDRs.)

New IRS IDR Procedures with Mandatory Enforcement Provisions
To comply with the New IDR response deadlines, and to avoid the prompt delinquency notices and summons enforcement procedures outlined in LB&I Directive ), taxpayers need to be ready to explain to the Exam team how long the information will take to be collected and why it will take that long. This includes determining: Do you have the information the IRS seeks? Where is the information and what format is it in? Who will be responsible for obtaining and organizing the information and how long will it take that person to do so? Who needs to review the information before it is delivered to the IRS and how long will that take? Are there any privilege or confidentiality concerns? That may require additional review.

New IRS IDR Procedures with Mandatory Enforcement Provisions
Need to ensure that everyone involved in the examination within your organization is aware of the IDR’s deadline, because once you agree to the deadline there is virtually no way to extend it and the new enforcement provisions are mandatory. If you miss the initial deadline in the IDR, the IRS will issue a “Delinquency Notice” within 10 days of the missed deadline and may allow up to 15 days to provide a response.

Fringe benefits; Likely to include use of company cars, planes and home computers, spousal travel, corporate apartments, prizes and awards, tax return preparation, meals (including on-premises cafeterias), life insurance, and various de minimis items (including gift cards) Reimbursed expenses; Code § 62(c) compliance Executive compensation; Including deferred compensation and stock-based awards, such as qualified and nonqualified stock options, restricted stock, various phantom stock programs, and for larger companies, Code §§ 162(m) and 280G issues.

Payroll tax compliance (including expatriates, and NRAs traveling to the U.S.); and Focused on W-4/W-9 collections (including investigations of employees who have claimed “exempt status” or too many exemptions), information return compliance (including inquiries about individuals who have received both Forms W-2 and 1099-MISC), B-1, J, and H-1B visa issues, and payroll tax deposit timing (with focus on options/RSUs). Worker/independent contractor classification Focused on, ultimately, collecting solid revenue estimates for an expected Administration proposal to repeal § 530 of the 1978 Revenue Act (as sponsored by then Senator Obama).

Possible State Referrals Not only are these IRS audits painful processes, but, given increased coordination between the IRS and state tax agencies, it is possible that audit findings will be coordinated with state tax authorities. Many states have longer statutes of limitations – some extending two or three years after the employer pays taxes to the IRS at the conclusion of the IRS audit, which leads to painful delays, and problems with data-retention. If the employer does not “confess” to the state its payment of taxes to the IRS, the state SOL may never run (e.g., in California).

Procedural Delays in Getting to IRS Appeals
So many IRS Appeals Officers have retired over the past 3 years that there is a huge backlog in IRS processing of protests, particularly those on payroll tax issues. Many of the Protests filed with respect to the “data collection audits” of larger employers, which started in late 2011, have not yet been considered even at a first meeting at Appeals. Although the IRS insists that taxpayers have only 30 days (or even less) to file a Protest, the delay before the first Appeals Meeting is 12 to 15 months.

2010 Increase in Information Reporting Penalties
The Code includes not only penalties on individual taxpayers for underreporting income and underpaying (or late-paying) taxes, but also imposes penalties on employers for making the same types of errors. These penalties were dramatically increased in late 2010, effective for information returns filed in January 2011 for 2010 (although there is a typo in the I.R.M., indicating that for “small employers,” the increased penalties may be delayed until the 2011 year). Also, employer’s liability for underwithholding on executives increased in 2013 when the withholding rate on supplemental wages over $1,000,000 jumped from 35% to 39.6%.

The post-2010 penalties imposed under each of Code § § 6721 and 6722 are: $100 per W-2, up to maximum of $1,500,000 for all such failures in the aggregate for the year; $30 per W-2, with $250,000 annual cap if corrected within 30 days of January 31; $60 per W-2 with $500,000 annual cap if corrected on or before Aug. 1; In cases of intentional disregard, greater of 10% of underreported amount or $250 per W-2 (with no annual cap). Note that lower annual caps apply to small employers with gross receipts under $5,000,000.

For errors on any single W-2 (or 1099), this change has effectively doubled penalties – from $100 to $200 per return – since penalties are imposed on errors in both the employee and employer copies of the forms. For errors by large employers (which affect 15,000 or more employees), the penalties have increased six-fold, from $500,000 to $3 million. Lower caps apply to small employers with gross receipts under $5M. For “intentional disregard” errors, the penalty is 20% of the underreported income.

Have these changes increased the accuracy of information returns? Perhaps information returns are more accurate, but certainly these higher penalties (and higher withholding rates on executive compensation) have increased the “worry factor” for return filers. Will these changes increase the frequency of audits? Maybe, and they certainly will increase costs for those audited. They have also lead to more “computer-notice” assessments.

Federal Payroll Audits of Cross-Border EmployEES: COMMON AUDIT ISSUES

Common Audit Issues for Cross-Border Employees
Tax Return Preparation Expatriate Withholding Impatriate Withholding

Common Audit Issues for Cross-Border Workers: Tax Return Preparation – IRS Arguments
The tax return preparation benefits only the employee. The Code §132(d) exclusion does not apply to § 212 deductions (e.g., return preparation). See Reg. § (a)(1)(iii); Code § 212; Rev. Rul ; P.L.R ; P.L.R ; and F.S.A (all addressing employer-paid tax return preparation). The exclusion for non-discriminatory qualified retirement planning services under § 132(m) is not applicable. The employer’s cost measures the benefit value.

Common Audit Issues for Cross-Border Workers: Tax Return Preparation – Employer Response
The assessed tax preparation costs should be excludable under Code § 132 as a working condition fringe benefit because incurred primarily for the employer’s benefit. See, e.g., Rev. Rul (applying this principle to job- search expenses to terminated employees). Even the ruling cited by the IRS imply that under certain conditions the working condition exclusion could apply. There is ample pre- and post-TRA ‘84 guidance indicating that property and/or services provided to employees for an employer’s benefit should be excluded from wages. See also Rev. Rul (question 31); Doak v. Comm’r, 234 F.2d 704 (1956); and Teeling v. Comm’r, 42 T.C. 671 (1964), acq C.B. 6 (all allowing deductions for personal meal and entertainment expenses, where it is clearly shown that the taxpayer was incurring costs exceeding those that would have been incurred for their personal expenses).

Cost cannot be used to measure value, per Reg. § (b)(2). The amount payable by an employee for the U.S. return preparation is the effective value. The IRS should accept values of $350 to $500 as income imputed to employees for this benefit. (Notably, $500 is more than double the value of tax return preparation services, as estimated by the National Society of Accountants and the IRS.)

Because expatriates are only responsible for the hypothetical “stay at home” tax, the value received by these employees for domestic and foreign tax return preparation services is far less than the employer’s cost. Much of the return preparation cost is aimed at minimizing the tax equalization payments due expatriates. Expatriates do not benefit from foreign tax return preparation services because they are guaranteed tax equalization payments and gross-ups. Any tax attributes (including FTCs) that generate tax reduction in an expatriate’s return for prior or future periods, including pre- and post-assignment periods, solely benefit the employer.

The facts for most employers are clearly distinguishable from those described in Rev. Rul and P.L.R Under the facts of Rev. Rul , the services were rendered primarily for the benefit of the employees. For most employers, the foreign tax preparation expenses were incurred primarily for the employer’s benefit (as discussed above). P.L.R differs from most employers’ situations, since few, if any, expatriate employees are ever given a choice between the tax preparation services and cash.

Common Audit Issues for Cross-Border Workers: Expatriate Withholding – IRS Arguments
Withholding should have been collected on wages while the employees were traveling. The Code § 911 exclusion was inadequate to protect the wages from withholding. The “exempt status” Forms W-4 were completed incorrectly (per inclusions of requested exemptions), or had expired (on Feb. 15 of every year). The only way for an employer to abate its liability for underwithheld income taxes is to collect originally signed Forms 4669 from each affected employee.

Common Audit Issues for Cross-Border Workers: Expatriate Withholding – Employer Response
Wages paid to U.S. citizens performing services in a foreign country for an employer are exempt from withholding if at the time of payment it is reasonable to believe the employee’s wages will be excluded from gross income under Code § See Treas. Reg § (a)(8)(A)-1(a)(1)(i). In many instances, the IRS agents’ computations of the Code § 911 exclusion significantly understate the available exclusion.

Qualified individuals could exclude up to $91,500 in $92,900 in $95,100 in 2012, $97,600 in 2013, and $99,200 in See Code § 911(b)(2)(D)(i); Rev. Procs , , , , and The Code § 911 exclusion amount is computed on a daily basis based on the number of days that fall within the employee’s qualifying period during the taxable year. See Code § 911(b)(2)(A). Pursuant to Reg. § (d)(2)(i), to determine the maximum exclusion amount, the annual exclusion amount is multiplied by the following fraction: The number of qualifying days in the taxable year The number of days in the taxable year IRS agents often misapply (or ignore) this exemption.

In addition to the Code § 911 exclusion, Code § 3401(a)(8)(A)(ii) (and the underlying regulations) provide a wage withholding exemption for remuneration paid for services by a U.S. citizen employee in a foreign country if the employer is required by the law of a foreign country to withhold income tax upon such remuneration. The tax need not be imposed under general income tax laws of the foreign country, so as the foreign tax would otherwise qualify for credit (if elected) under Code § See P.L.R Some IRS agents insist on detailed explanations (and translations) or foreign laws, plus proof that withholding in fact occurred, before applying this exclusion.

Some employees file Forms W-4 claiming “exempt status” – and the IRS scrutinizes these forms, and the updates to the forms (required every February) very carefully. Here again, many of the criticisms are contradicted by the I.R.M. and the W-4 form instructions, which indicate that the form is NOT invalidated completely if both “exempt status” and a high number of exemptions are claimed, and also permit reliance on prior-filed Forms W- 4 with high numbers of exemptions.

Many examining agents, in calculating proposed taxes, apply the highest possible effective marginal rates, instead of applying the 25% supplemental rate (which admittedly jumped to 39.6% in 2013 for supplemental wages over $1M). This violates instructions in the I.R.M. Moreover, agents sometimes use the 25% supplemental rate in computing adjustments, when in fact the regular wage rate would have been less. Thus, in any audit, agents tend to use the higher of the regular marginal rate or the supplemental rate, when they should use the lower of the two rates.

An employer’s Code § 3403 liability for non-withheld taxes can be abated, pursuant to Code § 3402(d), if “the tax against which such tax may be credited is paid.” According to Treas. Reg. § (d)-1, “the employer will not be relieved of his liability for payment of the tax required to be withheld unless he can show that the tax … has been paid.” One potential method of proof is the Form 4669 – but other methods should be available, as discussed below.

The I.R.M. does not limit Form 4669 as the exclusive method by which an employer can “show that the tax … has been paid.” It simply provides one manner in which an employer can make a prima facie showing that an employee paid the underlying tax. Alternative forms of satisfying the Code § 3402(d) abatement rules have been recognized in numerous court cases.

Common Audit Issues for Cross-Border Workers : Expatriate Withholding – Employer Response
Alternative forms of proof include: Providing records relating to affected employees for whom the employer’s accountant prepared U.S. federal income tax returns, pursuant to the employer’s expatriate employee benefits program; Providing information return filing records; Providing a list of the names and SSNs of the affected employees, along with a statement that the employer has maintained records of: (1) each affected employee’s Form W-2 (and, if applicable, Form W-2c); (2) payment to the accounting firm for tax return preparation and filling fees; and (3) a tax equalization computation; or Producing records evidencing the costs of preparing each employee’s tax return and related tax equalization computations.

Best Practices to Avoid Expatriate Withholding Issues?
What forms should be completed by employee? What are the “Do’s and Don’t’s” of completing Forms W-4 and other election forms? What questions should be resolved in written assignment letters? What steps should be taken to track equity compensation vesting?

Common Audit Issues for Cross-Border Workers: Impatriate Withholding Issues
For impatriates, different rules apply. Code § 861 provides only a limited exclusion (for under $3,000 of income, and for work of under 90 days) for services performed in the U.S. The IRS counts even a minute of a calendar day as a full day, even though the regulations indicate that the calendar day test is a “general” rule (implying that exceptions exist). In a pending Tax Court case, American Airlines v. Comm’r, the IRS examining agents proposed to count stays of under 24 hours by flight attendants as “two, and possibly three days” – ignoring Tax Court precedent that would ignore de minimis short-term stays. Note: This American Airlines case presents interesting procedural issues re: the ability to litigate payroll tax cases in the U.S. Tax Court where there is a dispute about the application of Section 530, even if the IRS has not issued a “Notice of Determination of Worker Classification.”

Income tax treaties (in place with nearly 60 countries) also provide a general exemption from U.S. income taxes for amounts received by nonresident aliens who travel to the U.S. for study, research, or business or technical training (which is precisely why many B-1 visa-holders travel to the U.S.). However, these treaty exemptions do not apply to persons actually working in the U.S. (e.g., employees traveling on L-1, TN, or H-1B visas). Note: Some IRS agents examine even employees on B-1 visas, attempting to prove that the visas were obtained in error, and that the employees are ineligible for treaty protections.

For these NRA workers, whose income and period of stay likely exceeds the Code §861 exclusion limits, many employers arrange to pay their U.S. taxes (even though the foreign entity pays their wages), typically depositing the taxes on a quarterly basis, and then following through with tax return preparation. However, in some audits, the IRS has alleged that the U.S. employer’s payments of taxes are late-deposited, thus triggering FTD penalties under Code §6656 (even though the U.S. employer never in fact paid the wages). This issue is pending in several appeals.

FICA/FUTA taxes also apply (since the exception – discussed below) for work performed for “non-American employers” applied only to work performed outside the U.S. Unfortunately for many of these NRA workers, they may never qualify for social security or unemployment benefits, but the IRS ignores the basic unfairness of imposing these social taxes, where no benefits will be received. On the other, some workers (e.g., the flight attendants in the American Airlines case) may qualify for lifetime post-retirement benefits, after paying minimal FICA, but there again the IRS attorneys have indicated that “receipt or nonreceipt of social security or unemployment benefits is irrelevant to us.”

FICA taxes are imposed on “all remuneration for employment ….” Code § 3121(b) defines “employment” to include: Any service performed within the United States (irrespective of the citizenship or residence of the worker or the service recipient); and “Any service, of whatever nature, performed outside the United States by a citizen or resident of the United States as an employee for an American employer.” Code § 3121(h) defines “American employer” to include a “corporation organized under the laws of the United States or of any State.” Where NRA employees work outside the U.S. for CFCs –corporations organized under the laws of foreign countries – FICA taxes are not applicable if the CFCs are not “American employers.”

This exception for “non-American employers” does not apply to any work performed in the U.S. However, some wages earned in the U.S. qualify for the totalization tax treaty exemption from FICA (applicable where (and only if) certificates of coverage are obtained). For employees whose wages are not exempt under §861 or a treaty, many employers do withhold FITW (and FICA, if applicable),for foreign employees working in the U.S. who are paid by the U.S. affiliate during their stay. Unfortunately, the IRS is challenging both the payment and the nonpayment of payroll taxes for these impatriate employees.

For employers who have withheld and deposited FICA (as well as other payroll taxes), as noted above, the IRS has alleged that the FICA-taxes are “late-deposited,” and has proposed FTD penalties. This penalty is hard to justify, since the U.S. employer in many instances did not pay the wages in the first instance, and no FTD penalties can be applied to an employer that has not withheld (and, as a practical matter, has not even paid the wages). This issue is also still pending in several IRS appeals.

For employees whose wages likely exempt under §861 or a treaty, where no payroll taxes are paid, the IRS has announced in several audits that it intends to audit the foreign affiliate, even though: the U.S. has no jurisdiction over the foreign employer; the U.S. affiliate cannot be held liable for underwithheld taxes, except for certain government contractors affected by Code § 3121(z); and It is very hard to obtain the information, given strict procedures for seeking and obtaining foreign records, and limitations on information exchanges (on top of IRS budget limitations on traveling to the foreign countries).

It is possible, in opening audits of these foreign affiliates of U.S. employers, that the IRS is only trying to collect unpaid employment taxes (for workers with compensation not exempt under Code §861 or a treaty). It is also possible that the IRS is trying to determine visa violations, which it could report to US immigration authorities. Finally, it is possible that the IRS is trying to prove that the foreign affiliates have created a “permanent establishment” in the U.S. The IRS’s motives are not as yet very clear, since most of these foreign affiliate audits are in early stages.

Additional problems arise when NRA employees (or green card holders) move back overseas and exercise option or receive other equity compensation (e.g., RSUs), since at least FICA withholding, and possibly also income tax withholding, applies to that compensation attributable to U.S. services, irrespective of the fact that the employees are working for non-American employers at the point the compensation is ultimately received.

In sourcing income from options and other equity compensation, the U.S. generally applies the grant-to-vest method. See Treas. Reg. § (b)-(d). However, this is not the exclusive method, as source-of-income allocation must turn on the specific facts and circumstances of the particular case. An alternative to the grant-to-vest method allocates income based upon the taxpayer’s residence during the period of significant appreciation in the underlying stock. Many agents also make mistakes in their computations, counting income from equity grants after leaving the U.S.

Since the IRS has never issued adequate guidance supporting the application of U.S. payroll taxes to non- citizens employees who have moved back overseas, the principles outlined in the “Confusion Doctrine” bar the IRS from imposing FICA taxes on employers. See Central Illinois Public Service Co. v. U.S., 435 U.S. 21 (1978) (waiving liability for payroll taxes, where the IRS has never issued guidance or outlined clear rules governing the computation and collecting of payroll taxes).

Best Practices to Avoid Impatriate Withholding Issues?
What forms should be completed by employee (e.g., Forms W-2, collection of Certificates of Coverage (if applicable) under foreign social security system, and Forms 4669?? What questions should be resolved in written assignment letters? Are secondment agreements advisable? Note: in OECD commentary issued in 2012, the OECD has made clearer that the adoption of secondment agreements – which allow multinationals to put personnel in countries without separating them from their formal employers (typically with with cost-plus charges to the local affiliate) – can minimize the PE risk. What are the “does and don’ts” of entering into secondment agreements?

Wage Recharacterization Audits

Wage Recharacterization Audits: Choices between Cash and Code § 132(d) Benefits
Background: Many financial institutions over recent years have cooperated with requests from their senior financial advisors and certain executives to allow the employees to establish reimbursement accounts, “funded” in part by the employee’s agreement to forgo certain amounts – typically percentages of future compensation. Typically these reimbursement plans are established before the employee has any right to any specific amount of future compensation. Other industries employing high percentages of traveling workers have similar trade-offs between travel expenses and taxable wages. The IRS is now challenging these “wage recharacterization” plans in dozens of audits – particularly in the travel nursing industry.

Code § 132(a) provides that gross income shall not include any fringe benefit that qualifies as a “working condition fringe,” defined as any property or services provided to an employee of the employer to the extent that, if the employee paid for such property or services, such payment would be allowable as a deduction under Code § 162. Cash payments to an employee can also qualify as a working condition fringe benefit, per Treas. Reg. § (a)(1)(v).

Despite this general exclusion for working condition fringes, there are limitations on structuring choices between fringe benefits and cash, on establishing expense arrangements that are funded out of future employee earnings, and on paying “travel expenses” which appear to be substituted for taxable wages. However, the IRS’s “prohibition” of employee choices between cash or Code § 132 benefits (including working condition fringe benefits) is very confusingly drafted.

Specifically, Treas. Reg. § (a)(1)(i) provides as follows: – A service or property offered by an employer in connection with a flexible spending account is not excludable from gross income as a working condition fringe. For purposes of the preceding sentence, a flexible spending account is an agreement (whether or not written) entered into between an employer and employee that makes available to the employee over a time period a certain level of unspecified non-cash benefits with a predetermined cash value. No IRS guidance explains or illustrates this rule. Even the 2012 ruling (discussed below) does not cite it.

In addition, the proposed regulations under Code § 125 (re-proposed in August 2007) specifically provide that Code § 125 is the exclusive means by which an employer can offer employees an election between taxable and nontaxable benefits without the election itself resulting in inclusion in gross income by the employees. See Prop. Reg. § (b). If a plan does not meet the requirements of the proposed regulations, the employee will be taxed on the value of the taxable benefit regardless of what benefit is elected and when the election is made. Id.

The proposed regulations prohibit offering fringe benefits in Code § 132, including working condition fringe benefits, through a Code § 125 cafeteria plan. See Prop. Reg. § (q). The scheduled effective date for these proposed regulations was plan years beginning on or after January 1, See Prop. Reg. § (s). The IRS has never finalized these proposed regulations. Until proposed regulations are formally adopted, they carry no more weight than a position advanced on brief by the IRS. See F. W. Woolworth Co. v. Comm’r, 54 T.C. 1233, (1970).

The IRS has changed its position numerous times over the last 20 years as to when and whether expense accounts might be effectively arranged for by agreement to reduce future bonuses. See P.L.R (elective commission reduction to place specified amounts in a reimbursement account not an “accountable plan”); In both P.L.R and in an unpublished 1998 field service advice, F.S.A , issued to the IRS district director in connection with an audit of a travel-licensed clinician staffing company, the IRS concluded that a mandatory nonelective reduction of pay and establishment of a reimbursement arrangement satisfied the “accountable plan” and Code § 132(d) rules. 82

In P.L.R , the IRS ruled that an elective salary reduction arrangement to set up an expense reimbursement plan satisfied the “accountable plan” rules, but then nine months later, in P.L.R , the IRS announced that it was “reconsidering” that conclusion. The “reconsideration” did not extend to nonelective arrangements. No P.L.R. has ever been issued on agreements to reduce compensation before it is earned, and to receive specified noncash fringe benefits and expense reimbursements. 83

Taxpayers have won two cases in which the facts showed that local employees (who did not receive per diems and travel expenses) were paid higher wages than traveling employees, who were reimbursed for expenses. Trucks, Inc. v. U.S., 234 F.3d 1340 (11th Cir. 2000), reversing and remanding 987 F. Supp 1474 (N.D. Ga. 1997). Worldwide Labor Support of Mississippi, Inc. v. U.S. 312 F.3d 712 (5th Cir. 2002), vacating and remanding U.S.T.C. ¶50,463. 84

At a 2007 meeting of the Fringe Benefit Tax Section of the American Bar Association, IRS attorneys present conceded that there were practical difficulties with enforcing an absolute prohibition on wage recharacterization; they also admitted that if an arrangement was properly structured, it would be unlikely to be challenged by the IRS on audit. In 2008, some Treasury Department attorneys admitted that the proposed cafeteria plan regulations “are overbroad” and should be revised so as not to attempt to block all choices made by employees among different types of benefits. 85

In a significant recent reversal of its prior reluctance to challenge wage recharacterization, on September 10, 2012, the IRS issued Rev. Rul , providing various examples of prohibited wage recharacterization – most in the context of per diem travel expense reimbursement plans. Three examples in Rev. Rul (for cable installers, travel nurses, and construction workers) conclude that plans provide all taxable benefits, where employees’ taxable wages have been reduced to accommodate tax-free allowances for travel and job-related expenses. 86

One example in Rev. Rul allows prospective wage reductions for all employees in a housecleaner workforce, coupled with a reimbursement plan for workers documented expenses. Rev. Rul does not address the prospective establishment of different amounts of salary reduction (and different sizes of reimbursement accounts) for different employees, nor does to address how frequently a reimbursement arrangement might be modified. It is unclear whether the IRS will use this 2012 revenue ruling to challenge choices by financial industry employees between wages and working condition fringes. 87

Wage Recharacterization Do’s and Don’ts
Advisable Protections for Establishment of Any Salary-Choice Reimbursement Plans: Require determination of expense reimbursement budget well before the employee’s right to the compensation has “ripened,” and while the amount to be received is still speculative. The compensation reduction should be some percentage of as yet unaccrued, undetermined future compensation, so that the account is not funded with a “pre-determined” amount in violation of Treas. Reg. § (a)(1)(i). The accounts should cover pre-specified types of reimbursable business expenses—again to avoid any violation of Treas. Reg. § (a)(1)(i) (which prohibits the establishment of accounts to pay fixed amounts of “unspecified noncash benefits”).

The “give up” of compensation should occur at specific times —preferably before the year in which the future compensation will be earned. The assigning employee must forfeit all rights to the assigned compensation—absolutely no reversion of unspent amounts. The employer should have discretion to make the final determination of the reimbursement amounts. Consider obtaining opinion of outside counsel confirming the arrangement’s compliance with tax rules.

Arguments Supporting Legitimacy of Such Assignments: No violation of the regulations under Code §§ 132(d) or 62(c). They comply with the Lucas v. Earl prohibition (also discussed below) on assignments of “ripened” rights to income. No constructive receipt of any compensation under Treas. Reg. § § and -2; Rev. Rul , because the assigning employee never had any immediate or “current” right to any specific amount. See Trucks, Inc. and Worldwide Labor Support (cited above.

Steps Not to Take in Designing an Expense Reimbursement Plan. Don’t pay tax-free reimbursements for any expenses that are already covered under a per diem arrangement or to persons receiving tax free lodging in kind. Don’t offer cash options. Don’t allow pay per diem allowances, regardless of whether or not the worker travels away from home on the employer’s business. Don’t pay expenses on non-travel days. Don’t pay amounts exceeding Federal per diem rates. Don’t pay per diems on an hourly basis (or otherwise “on the same basis as other wages”).

State and Local Tax Developments FOR MOBILE WORKFORCE EMPLOYERS

Topics Covered Current State Rules
Mobile Workforce State Income Tax Simplification Act Voluntary Compliance Programs NY MTA Payroll Tax Refund Claims Federal Protections

I. Current State Rules: State Taxation of Workers in Multiple States & Employer Withholding Obligations Companies with peripatetic workforces—employees and contractors working in, and moving among, many different states, either in a single year or over the course of the vesting period for bonuses, stock options, restricted stock, or other equity compensation—have special problems due to myriad state laws governing the taxation of residents and non-residents.

State Taxation of Workers in Multiple States: Impediments/Opposition
Form W-2 includes spaces in Boxes at the bottom of the Form for reporting income to two different states (separated by a broken line). The IRS instructions to Form W-2 say, “If you need to report information for more than two states or localities, prepare a second Form W-2.” Payroll systems may not accommodate (or capture) multiple work locations. But employees almost invariably complain if employers report wages in more than one state.

State Taxation of Workers in Multiple States: Employer Withholding
The “employer nexus” to trigger withholding, for most states is: Employer office in state, or some other nexus to trigger state income tax; and Payments of any wages subject to income tax in the state (or subject to contribution under the state’s unemployment compensation laws).

State Taxation of Workers in Multiple States: Employer Withholding
Some states provide thresholds before withholding is triggered, based on days worked, dollars earned, or some combination of the two. (See map on following slide.) Examples: NY – reasonable expectation that employee will work 14 days or less in NY GA – 23 days a quarter, or GA-allocated wages exceeding 5% of total compensation CT – 14 working days a year ND – 20 working days a year

Overview of Thresholds
WA ME MT ND OR MN ID WI VT NH SD NY WY MI MA CT IA PA RI NV NE NJ UT IL IN OH CA AK CO DE KS MO WV VA MD KY NC AZ TN NM OK AR SC MS AL GA TX LA HI FL Nonresident employees subject to tax withholding on first day of travel Nonresident employees subject to tax withholding after reaching threshold No general personal income tax (or, in the case of Washington, DC, no tax on nonresidents)

State Taxation of Workers in Multiple States: Risks of Employer Audits
As with any payroll audits, it is simpler for state/local tax officials to audit employers, holding them liable for non-withheld income taxes where allocated wages exceed the state’s personal exemption, because that is more efficient than finding and auditing individual employees. If employers have neither reported nor withheld on the income, it is extremely unlikely that any non-resident of a state would have voluntarily paid income taxes (thereby enabling the employers to abate their liability for nonwithheld income taxes).

State Taxation of Workers in Multiple States: Risks of Employer Audits
However, it is nearly impossible for employers to keep track of day-counting income allocation rules (or with 183+ days residency tests). Some states have poorly explained rules on income allocations. Historically, many states were not aggressive in auditing non-residents or conducting payroll audits. Some states (e.g., NY) have been operating “amnesty programs” or “Voluntary Disclosure Agreements” to encourage employers to voluntarily confess their withholding/reporting errors.

State Taxation of Workers in Multiple States: Some NY Horror Stories
Part-Day Counting: Any portion of a day in NY can trigger allocation of income to NY. See Matter of Holt, DTA No (2007) (“petitioner [a Florida resident] finds it incredible that an individual's presence in New York for a portion of a day constitutes a day for New York tax purposes”). No Minimum Number of Days: Many states have some minimum number of days of work in a particular state before state income-allocation rules apply. NY does not.

Meeting Burden of Proof to Show Non-Resident Status: In In the Matter of Julian H. and Josephine Robertson, NY DTA (2009 and 2010), NY auditors had maintained that a couple had been in NY for 183 days and that the taxpayers’ records showing time outside NY were inadequate for 4 days, and thus the taxpayers, as NY residents for more than 183 days, would owe additional NY City taxes totaling $26,702,341 for 2000. After an extensive trial, in a 100+ page opinion, the judge believed the taxpayers’ testimony; after an exception was filed, the case was argued again, another opinion was issued, and the taxpayers won again. But see Puccio, NY DTA (2011).

“Convenience of Employer” Rule: NY counts even services performed by any NY non-resident at the taxpayer's out-of-state home that could have been undertaken at the employer's office in NY, unless the services were performed out of state for the employer’s necessity, not the employee's convenience. (20 NYCRR section (a). See, e.g., Matter of Phillips v. New York State Department of Taxation and Finance, 267 AD2d 927, 700 NYS2d 566, lv denied, 94 NY2d 763, 708 NYS2d 52, Matter of Page v. State Tax Commission, 46 AD2d 341, 362 NYS2d 599; Matter of Simms v. Procaccino, 47 AD2d 149, 365 NYS2d 73), Matter of Zelinsky v. Tax Appeals Tribunal of State of New York, 1 NY3d 85, 769 NYS2d 464, cert denied 541 US 1009, 158 L Ed 2d 619), In the Matter of the Petition of Manohar and Asha Kakar, DTA No (Feb. 16, 2006), and Matter of Huckaby v. New York State Division of Tax Appeals, 4 NY3d 427, 796 NYS2d 312, cert denied 546 US 976, 126 S Ct 546, 163 L Ed 2d 459).

See Edward A. Zelinsky, “New York’s ‘Convenience of the Employer’ Rule Is Unconstitutional,” State Tax Notes Doc (“New York’s ‘convenience of the employer’ doctrine has not fared well in the court of professional opinion.”). These harsh results are one of the drivers behind efforts to enact federal blockers on states’ abilities to tax non-residents. (See discussion below.)

State Taxation of Employers Due to Telecommuting Employees
Telebright – New Jersey Appellate Division found company subject to income tax based solely on presence of one telecommuting computer programmer. Company did not care where employee worked. Employee was originally based outside NJ, but asked to continue employment after moving there. No solicitation/marketing activities in NJ. Employee’s daily presence in NJ for the purpose of carrying out her responsibilities as an employee was sufficient to satisfy the substantial nexus requirement of the Commerce Clause. See Warwick McKinley, Inc., Cal. SBE

State Taxation of Workers in Multiple States: Stock Option/SAR Allocation Methods
The state rules governing the taxation of stock options (or SARs) and the income allocation withholding rules for option income received by non-residents vary greatly depending on the state (and some states have never adopted any option-sourcing rules): Grant-to-Vest Method: Taxes option exercise income based on the percentage of time in the state between the date of grant and the date the options vest; Grant-to-Exercise Method: Taxes option exercise income based on the percentage of time between the date of grant and the date the options are exercised; Year-of-Exercise Method: Option spread from exercise is taxable only if services were performed during the year of exercise and not over a multiyear period; Degree of Appreciation Method: Allocates the income based on the amount of appreciation of the underlying option that occurred while the taxpayer was a resident of the state. The variance between the states, and from year to year within certain states, clearly suggests there is no set rule, and the most appropriate method is to allocate the income based on a reasonable facts and circumstances analysis.

II. Mobile Workforce State Income Tax Simplification Act (aka “Marketplace Fairness Act”)
This bill would address the taxation of non-resident employees (excluding professional athletes, professional entertainers, and some public figures) and would set a threshold of days below which a state could not subject the non-resident to state income tax. H.R passed the U.S. House of Representatives on May 15, 2012. H.R. 1129, containing language identical to H.R. 1864, was reintroduced to the House and referred to the House Committee on the Judiciary on March 13, Its lead sponsors are Reps. Howard Coble (R-NC) and Hank Johnson (D-GA), plus 28 more House cosponsors. S. 1645, the corresponding Senate bill, was introduced in November 2013, by an impressive list of bipartisan original cosponsors, including Senators Sherrod Brown (D-OH) and John Thune (R-SD) (both on Senate Finance). For information about the 254-member coalition of supporters, contact Maureen Riehl at

Mobile Workforce State Income Tax Simplification Act
Establishes a 30-day threshold that non-residents would have to work in a state before becoming subject to out-of-state taxes Strong state opposition The initial bills had proposed a 60-day threshold, but because of state clamor a compromise was reached between employers and states, and in the most recent version of the bill a 30-day threshold was proposed.

A “day” is attributed to the state where an employee performs more of his employment duties compared to another state, UNLESS, the employee performs employment duties in a resident state and ONLY one non-resident state during one day. In this case the employee will be considered to have performed more of the duties in the non-resident state. Incentive to visit two states in a travel day Recordkeeping issues Unclear whether it simplifies anything

In testimony before the House Committee on the Judiciary on May 25, 2011, the President of the Federation of Tax Administrators (FTA) opposed H.R. 1864, arguing that: The 30-day rule should count work for any part of a day A dollar threshold should be added so that highly paid employees might be subjected to withholding for less than 30 days of work Stock options and multiyear compensation should be exempted The House Committee on the Judiciary approved H.R on November 17, 2011 after rejecting changes proposed by Rep. Nadler (NY), but recognizing that changes may be required to respond to the FTA’s concerns.

MTC Model Statute The Multistate Tax Commission (MTC) has proposed a mobile workforce withholding and individual income tax model statute that would decrease the threshold to 20 days. The MTC’s model statute provides that MOST non-residents’ income from work performed in states of non-residence would be exempt from withholding if the non-residents: have no income derived from the non-resident states; worked fewer than 20 days in such states (days in transit would be exempt from the day count); and reside in states that have reciprocal exemptions or do not impose personal income taxes.

MTC Model Statute Certain workers would be excluded from the withholding protections provided by the MTC’s model statute: professional athletes; persons of prominence who perform services on a per-event basis; professional entertainers; construction laborers; and key employees.

MTC Model Statute Under the MTC’s model statute, qualifying employees would not have a filing requirement in the state of nonresidence; and employers would not have a withholding requirement regarding qualifying employees. However, the model act does not explicitly address nexus issues for employers with no nexus to the state. Also, states with “income thresholds” instead of day-counting thresholds (e.g., Montana) have criticized the MTC's model statute and its “days of working presence” test for creating problems for states that have an income threshold for taxability. They also note that high-earner non-residents working less than 20 days would be exempt from filing returns, while lower-paid non-residents working more than 20 days in a state would have to file.

Telecommuter Tax Fairness Act
First introduced in 2004, and most recently introduced in November 2011 (S. 1811, 112th Cong.) – Would bar states from adopting a “convenience of the employer rule,” and require that an employee be physically present in the state as a precondition to imposition of tax on that worker.

III. Voluntary Compliance Opportunities
As noted previously, many states have voluntary disclosure agreements and/or temporary amnesty programs. Processes and requirements are not consistent. Limitation of look-back period and penalty relief New York has a streamlined program. California has both a voluntary compliance program and a filing compliance agreement program. Other states

Voluntary Compliance Opportunities
Given the heightened focus on audits and unreasonableness of the one-day rule in certain states, we are seeing many clients take advantage of these programs Typically anonymous Formal agreement Correction programs have worked for executive groups and have eliminated the need to file individual returns.

IV. NY MTA Payroll Tax Refund Claims
Employers in New York City and several surrounding counties have paid a 0.34% payroll tax since 2009 on the wages and certain other compensation paid to employees employed within this “Metropolitan Commuter Transportation District.” Although several prior challenges to the legality of this MTA Payroll Tax had failed, on August 22, 2012, the 10TH District of the NY State Supreme Court struck down this “mobility tax,” on grounds that it had been enacted without first obtaining the constitutionally required prior approval of local legislative bodies (a “home rule message”), or, alternatively, approval under a “message of necessity” by 2/3 of each NY legislative house.

NY MTA Payroll Tax Refund Claims
Although this ruling in Mangano, et al. v. Silver, et al., N.Y. S. Ct., No /10, is being appealed, any employers that have been paying this payroll tax may file “protective” refund claims. On October 17, 2012, the New York State Department of Taxation and Finance published guidance regarding the procedures for taxpayers to file these refund claims. See proceedings.htm and the claim form, at Some employers estimate that their refunds could exceed $1 million. 118

V. Federal Protections: Federal Blocker of State Taxation of Certain Retirement Income of Former State Residents Since 1996, 4. U.S.C. § 114 has prohibited states from imposing an income tax on “qualified retirement plan income” and certain other types of non-qualified deferred compensation benefits paid to any individual who had earned the income while working in one state (either as a resident, domiciliary, or part-time worker) but had retired and moved out of the source state before the income was paid.

Federal Blocker of State Taxation of Certain Retirement Income of Former State Residents
These rules were lobbied into the “interstate commerce” section of the Federal Code in 1996 by RESIST (Retirees Eliminating State Income Source Taxation), the American Payroll Association, and other affected mobile workforce employees. The rules were later extended to certain retired partners (as described in Code § 7701(a)(2)) who have “retired” under their partnership agreements.

There will never be federal regulations because no federal agency would undertake such a project. There are some states that have issued regulatory guidance, and some that have issued private rulings on the rules’ application.

The definition of “retirement income” that cannot be taxed when earned by non-residents generally includes the following items: Qualified retirement plans; Excess benefit plans or wrap-around plans; and Certain other forms of nonqualified deferred compensation described in Code § 3121(v)(2) paid out in equal periodic installments over at least a 10-year period or for a recipient’s life or life expectancy.

The excepted payments from “Qualified Retirement Plans” include: § 401(k) plans; § 408(k) simplified employee pensions; § 403(a) annuity plans; § 403(b) annuity contracts; § 7701(a)(37) individual retirement accounts; § 457(a) eligible deferred compensation plans; § 414(d) governmental plans; Military retired or retainer pay plans; and § 501(c)(18) employee contribution trusts.

“Excess benefit plans or wrap-around plans” are defined as: Plans solely for the purpose of providing retirement benefits for employees in excess of the limitations imposed by one or more of Sections 401(a)(17), 401(k), 401(m), 402(g), 403(b), 408(k), or 415 of such Code or any other limitation on contributions or benefits in such Code on plans to which any of such sections apply. The description of these plans in the legislative history references a statute before it was amended in conference, which confuses interpretation of this provision.

The final exception encompasses other forms of nonqualified deferred compensation described in Code § 3121(v)(2) paid out in equal periodic installments over at least a 10-year period or for the recipient’s life or life expectancy. Directors and independent contractors are not eligible for this exception because SECA taxes have no corollary to 3121(v)(2). We are waiting to see if a petition is filed, or a settlement offer is proposed. Retired partners have special statutory protections added to the Federal statute in 1996.

Presumably the determination of whether distributions meet the “substantially equal periodic payment” rule would be determined by Reg. §1.402(c)2, Q&Q 5(a) (providing that the determination is made at the annuity starting date, and is not affected by subsequent contingencies and modifications, such as death of a participant) and Q&A 5(d) (specifying that distributions over ten years can be paid under a “declining balance of years” method, which pays 1/10 in year 1, 1/9 of the remainder in year 2, etc.).

The Code § 3121(v)(2) regulations expressly exempt stock options, stock appreciation rights, restricted stock, severance, sick leave, compensatory time, and vacation pay. Stock options, SARs, and restricted stock could not be paid out over 10 years or as an annuity in any event. Code § 409A has significantly limited application of this exception by barring most changes in deferred compensation distribution schedules.

Since Code § 3121(v)(2) applies only to common law employees, it is not clear whether this provision applies to corporate directors or other non-employees (excepting certain retired partners who are covered by a later statutory expansion of this federal source tax legislation).

Additional Specialized Federal Blockers of State Taxation of Transient Non-Resident Workers
Congress has enacted several industry-specific laws that fully or partially block states from mandating withholding on wages of certain non-resident employees of certain types of employers: Railroads – 49 USC §11502 (4-R Act); Airlines – 49 USC § (Anti-Head Tax Act); Motor Carriers – 49 USC §14503; Fishing vessels, or vessels engaged in “foreign, coastwise, intercoastal, interstate, or noncontiguous trade” – 49 USC §

IRS and Independent Contractors: Basic Questions Audit
Who are Independent Contractors (ICs)? What are the Applicable IRS Tests? Who are the Stakeholders? Why does Employee/IC Status Matter? What are the Financial Stakes? The Tax Relief Provisions Best Practices and Methods to Reduce Exposure IRS Information Sharing with the DOL and the states (including particularly California) _1.PPTX

IRS and Independent Contractors: Audit Triggers and Audit Developments
Increased requests for post-termination Form 1099 reporting (including in settlements); automatic review of all information reporting where the same worker received a Form W-2 and a Form 1099. requests for withholding on director fees (and pending legislation on this issue); and backup withholding audits (involving both alleged underwithholding, and penalties for non-filing of Information returns). _1.PPTX

IRS and Independent Contractors: Audit Triggers and Audit Developments
California worker classification audits; Developments in ability to take worker classification cases to Tax Court (which historically had not had jurisdiction over payroll taxes). _1.PPTX

Employee or Independent Contractor?
Common Law Employee Independent Contractor Leased Employees Joint Employment/Co-Employment Dual-Status Workers Corporate Officers and Other “Statutory Employees” “Statutory Nonemployees” Section 218 Agreement Employees _1.PPTX

Employee Misclassification: Government Stakeholders
Federal and State Agencies Affected by Employee Misclassification Agency Areas potentially affected by employee misclassification IRS Federal income and employment (payroll) taxes DOL Minimum wage, overtime, and child labor provisions Job protection and unpaid leave Safety and health protections Immigration/Form I-9 issues IRS, DOL and PBGC Pension, health, and other employee benefit plans Department of Health and Human Services Medicare benefit payments EEOC Prohibitions of employment discrimination based on factors such as race, gender, disability, or age NLRB The right to organize and bargain collectively SSA Retirement and disability coverage and payments State Agencies Unemployment insurance benefit payments State income and employment taxes Workers’ compensation benefit payments _1.PPTX

Employee or Independent Contractor: The Common Law Test
20-Factor Test instructions order or sequences set integration reports payments expenses training investment services rendered personally tools and materials hiring assistants profit or loss continuing relationship works for more than one person or firm set hours of work offers services to general public full-time work right to discharge work done on premises right to quit _1.PPTX

Independent Contractor Tests: IRS Three-Factor Test
For audit purposes, IRS auditors use a modified version of the 20-Factor Test that focuses on three factors: Behavioral Control Factors Financial Control Factors Relationship of the Parties Factors IRS Three-Factor Test considers the work that is being performed and the business context in which it is being performed _1.PPTX

Why Does It Matter? Benefits and Business Expenses
Differences Among Benefits Responsibilities Type of Benefits Employees Independent Contractors Retirement plans Employers sponsor benefit plans Employers and employees contribute Contractors sponsor plans Contractors bear the full financial cost of the plans Healthcare Employers sponsor on a tax-free basis Contractors obtain coverage Contractors bear the full financial cost, but receive a tax deduction Reimbursed expenses/ accountable plans Employers can reimburse expenses Nontaxable to the extent they are paid under an accountable plan Service recipient can reimburse, although expenses are generally unreimbursed Reimbursed expenses are nontaxable if they are under an accountable plan Unreimbursed expenses Many employers don’t fully reimburse expenses Unreimbursed expenses are subject to a 2% floor and AMT Businesses don’t generally reimburse expenses Not subject to a 2% floor or AMT _1.PPTX

Why Does It Matter? Payroll Taxes
Differences Among General Tax Responsibilities Employees Independent Contractors Type of Tax Businesses' general responsibilities Workers' general responsibilities Federal income Tax Withholding (FITW) Withhold tax from employees' pay Pay full amounts owed, generally through withholding Generally, none Pay full amounts owed, generally through estimated tax payments Social Security and Medicare Taxes (FICA) Withhold one-half of taxes from employees' pay and pay other half Pay half of total amounts owed, generally through withholding None Federal Unemployment Taxes (FUTA) Pay full amount State Unemployment Taxes (SUTA/SUI) Pay full amount, except in certain states None, except pay partial amount in certain states _1.PPTX

Why Does It Matter? Payroll Taxes and the Tax Gap
(Billions) $5 billion associated with FICA/FUTA $51 billion-$56 billion associated with SECA Other estimates place the annual “Employment Tax Gap” at $15 billion (IRS, in introduction of NRP program), $54 billion (Treasury study issued 9/26/06), or up to $78 billion. _1.PPTX

Why Does It Matter? Payroll Taxes
Full-rate Federal statutory liability equal to at least 40% of compensation payments to independent contractors 25% FITW exposure 15.3% Employer and Employee FICA (Social Security and Medicare)* Social Security Taxable Wage Base ($110,100 for 2012) Interest-free adjustments and rarely impose penalties Full-rate state liability varies by state, by UI experience rates and taxable wage bases. In California, the following rates apply: Unemployment Insurance (UI)—rate varies and is imposed on first $7,000 of wages Personal Income Tax Withholding (PIT)—6.0% on all wages, but is generally eliminated if the company has issued Forms 1099 to the ICs Supplemental Disability Insurance (SDI)—1.0% on approximately first $95,000 of wages Impose interest and penalties * The rate varies due to the 2011 and 2012 payroll tax holiday that reduced employee Social Security taxes from 6.2% to 4.2% _1.PPTX

IRS Payroll Tax Audits: Example of Tax Exposure and Tax Relief
The annual “full rate” tax exposure for 60 misclassified independent contractors averaging $50,000 is approximately $1,500,000. $1,167,000 for federal taxes (FITW, FICA and FUTA) $332,000 for California EDD tax liabilities (PIT, SUI, SDI, interest and penalties), but reduced to $125,000 if Forms 1099 issued to ICs Relief provisions can reduce the four year full-rate exposure of approximately $5 million as follows: One-Year Total Four-Year Relief Provision Exposure Exposure No Relief ,167, ,668,000 Statutory relief , ,281,600 100% CSP Offer , ,400 25% CSP Offer , ,100 VCSP Offer , ,000 Section 530 “Off-Code” Relief _1.PPTX

Federal Payroll Tax Relief
Significant Statutory and Administrative Payroll Tax Relief Exists: Section 530 Relief Section 3509 Relief Classification Settlement Program Relief Voluntary Classification Settlement Program Relief (best settlement rates, but shifting standards) _1.PPTX

Federal Payroll Tax Relief: Section 530 Relief
Reduces the employer’s federal employment tax exposure to zero for all past and future years Employer-only relief and only for employment taxes Can continue treatment of the workers as independent contractors for payroll tax purposes IRS bears burden of proof Three Tests Reporting Consistency Substantive Consistency Reasonable Basis (prior audit, industry practice, “judicial” precedent or any other reasonable basis) _1.PPTX

Federal Payroll Tax Relief: Section 3509 Relief
Provides an opportunity for reduced employment tax assessments if service recipient issued Forms 1099. Section 3509 does not provide any relief regarding the employer’s portion of FICA taxes nor the FUTA tax. The effective Section 3509 rate is 10.68% for both FICA and FITW for the compensation paid to reclassified worker. (Note however, that due to the 2% payroll tax holiday applicable to employee-share FICA taxes in 2011 and 2012, the Section 3509 rate for these two years was 10.28%. Also, the comparative rate is slightly higher for 2013, due to the Additional Medicare Tax applicable to employees with FICA-taxable wages in excess of $200,000.) _1.PPTX

Federal Payroll Tax Relief: IRS CSP Relief
The Classification Settlement Program (“CSP”) is available if the business previously issued Forms 1099 and agrees to prospectively reclassify the ICs as employees Only applies if the business is under an actual ongoing IRS audit The business will is assessed employment tax liability as either 25% or 100% of the Section 3509 liability for the most recent year under audit (i.e., generally ranges from 0.5% to 3% of the remuneration paid to the ICs) _1.PPTX

Federal Payroll Tax Relief: IRS VCSP Relief
The Voluntary Classification Settlement Program (VCSP) seeks to encourage voluntary prospective worker reclassification VCSP is an alternative to CSP which only extends relief to businesses actually under audit The IRS will not conduct a payroll tax audit for workers covered by a VCSP agreement for prior years in exchange for: a taxpayer’s agreement to treat a class of workers as employees for future tax periods for payroll tax purposes, and a payment of 10% of the Section 3509 rates (i.e., 0.3% to 1% of remuneration paid to ICs) _1.PPTX

Important Characteristics Optional program for an employer’s federal payroll tax relief Requires prospective reclassification from IC to employee Pay taxes equal to 1% of the IC remuneration paid during the most recent year regardless of amount at issue for all years No interest or penalties No relief to the worker Audit relief—IRS will not audit for worker classification for prior years _1.PPTX

Relevant Requirements Must prospectively reclassify independent contractors as employees Must have consistently treated the workers as “nonemployees” Must have filed all required Forms 1099 for prior three years Must not currently be under any IRS audit (originally construed to mean income tax, payroll tax, etc., but then narrowed to just payroll audits). Must not currently be under any DOL or state agency audit addressing worker classification issues If previously under audit, must have complied with audit results _1.PPTX

Relevant Requirements – Citations to Authorities IRS Announcement , IRB 503, as superceded by Announcement , IRB 725 had allowed employers to qualify for VCSP so long as they were not under an IRS employment tax audit, and also allowed participation, provided only that the employers must have consistently treated workers as non-employees filed all required Forms 1099-MISC covering the previous three tax years. This Form 1099-MISC filing requirement was temporarily suspended in 2012 for certain employers, per Announcement , IRB 724, but that temporary relief expired on June 30, 2013. Narrower Standards after June, 2013 _1.PPTX

Methods to Reduce Exposure from an IRS Independent Contractor Audit
Assess Exposure Separately assess tax, benefits, and employment law exposure Determine risk tolerance in each area Undertake Section 530 IC Reviews Do not rely solely on Common Law test Apply the IRS Three-Factor Test in IRS Form SS-8 Determine availability of relief under Section 530, Section 3509, CSP and VCSP Determine the availability of any state relief provisions _1.PPTX

Keys to Reducing Independent Contractor Exposure Identify reasonable basis for Section 530 and/or CSP Relief Always issue Forms 1099 Obtain services from ICs who have incorporated or are provided by third parties Neutralize employee benefits considerations by adopting “Microsoft Language” Seek consistency between federal and state treatment (but at times recognize that consistency is not possible due to relief provisions) Use well-drafted written contracts Consider using “payrolling” companies _1.PPTX

List of Do’s and Don’ts DO Conduct compliance reviews Conduct internal training to raise awareness Use incorporated independent contractors Monitor length of relationships and hours worked, but Limit services to less than full-time, Limit services to a short-term nature, and Avoid hourly fees Limit expense reimbursements to nonroutine expenses Require verification of tax payments Require a waiver of all employee benefits Develop and review standardized independent contractor agreements _1.PPTX

Methods to Reduce IRS Independent Contractor Audit Exposure
DO NOT Rely solely on the common law test Retain rights to direct or control the contractor Impose restrictions on the methods or means for the performance of the services Allow the consultant to direct/control/supervise your employees Require reports from or provide reviews to the contractor Provide equity compensation Pay hourly fees or provide a profits guarantee Extend privileges/benefits of a type provided to employees. Doc v.1 _1.PPTX

DISCLAIMER This material is provided as a general informational service to clients and friends of Morgan, Lewis & Bockius LLP. It does not constitute, and should not be construed as, legal advice on any specific matter, nor does it create an attorney-client relationship. You should not act or refrain from acting on the basis of this information. This material may be considered Attorney Advertising in some states. Any prior results discussed in the material do not guarantee similar outcomes. Links provided from outside sources are subject to expiration or change. © 2014 Morgan, Lewis & Bockius LLP. All Rights Reserved. IRS Circular 230 Disclosure To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein. For information about why we are required to include this legend, please see 154

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Chicago Chapter Tax Executives Institute February 25, 2014

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Chicago Chapter Tax Executives Institute February 25, 2014

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