Presentation on theme: "Health, Accident & Retirement Nancy E. Parkinson, CPP."— Presentation transcript:
Health, Accident & Retirement Nancy E. Parkinson, CPP
Content coverage: Health Insurance Traditional Health Insurance Plans Health Maintenance Organizations (HMOs) Preferred Provider Organizations (PPOs) Sick Pay STD LTD 3 rd Party Sick Pay Worker’s Compensation Insurance FMLA Retirement and Deferred Compensation Plans
Health & Accident Insurance Contribution- Tax Treatment Non-Taxable Contributions − Contributions made by an employer − Contributions made under a Section 125 Cafeteria Plan If employer reduces salary and then reimburses premium to employee, then the premium is taxable to the employee − Premiums must be for Employee, Spouse, Dependents (on 1040) For purposes of this provision dependent status will continue to apply to a person who is receiving more than ½ his/her support from the taxpayer even if their earnings more than the annual exemption. Coverage for “adult children” (under age 27 by end of taxable year) – married or unmarried. Plan cannot define “dependent” for purposes of eligibility other than relationship between child & participant. No coverage for grandchildren allowed
−Domestic/Life Partners Premiums for life partners are federal taxable unless recognized as a spouse under state law. If the employee’s domestic partner is of the same sex as the employee, the partner does not qualify as the employee’s spouse for federal tax purposes regardless of the state law. The partner may qualify as a dependent if partner receives more that ½ support from employee, lives with employee, and the relationship does not violate local law. Health & Accident Insurance Contribution- Tax Treatment Cont.
−Change in definition of “Medical Expenses” Applies for purposes of direct reimbursement of employee expenses or indirect reimbursements through FSAs, HRAs, and Archer MSAs. °Only costs of medicines prescribed by a doctor and insulin are eligible. Change only affects over-the- counter medicines unless doctor prescribes with a written prescription – for tax years beginning 2011
Taxes Involved −Federal Income Tax Employment Taxes ◦Social Security ◦Medicare ◦FUTA Based on one of the following Plan is written Referred to in employment contract Employees contribute to the plan Employer contributions are made to a separate fund Employer is required to contribute Health & Accident Insurance Contribution- Tax Treatment Cont. Exclusion from Social Security, Medicare & FUTA must :
Employer-paid physical exams – NOT excluded from income as a working condition fringe benefit, but IS excluded from income as an employer-paid medical care expense Benefits received directly or indirectly reimbursing the employee for medical expenses incurred are not included in employee’s income Any reimbursements in excess of actual expenses are taxable income to the employee Payments for loss of limb or disfigurement as part of AD&D are not included in income (payments must not be related to time lost from work). Health & Accident Insurance Contribution- Tax Treatment Cont.
Patient Protection and Affordable Care Act – effective for plan years beginning on or after September 23, 2010 −If insurance is provided through third party insurance company there is no nondiscrimination requirement. −If employer is self-insured (reimbursing employees’ medical expenses from its own funds), employer may not discriminate in favor of highly compensated employees in either benefits or eligibility. −IRS Code Section 105(h ) Health Insurance – Nondiscrimination Requirements
Non Discriminatory Plan Self-insured plan must benefit: At least 70% of all employees At least 80% of employees eligible to participate in the plan (IF at least 70% of all employees are eligible to participate) A classification of employees that the Secretary of the Treasury finds not to be discriminatory If all benefits provided to highly compensated employees are provided for all other participating employees
Although discriminatory reimbursements are taxable to the highly compensated employees receiving them, they are not subject to federal income tax withholding or employment taxes. Amounts paid to highly compensated employees must be included in taxable income Highly Compensated employees: 5 highest-paid officers Owner of more than 10% of employer’s stock Top-paid 25% of employees Discriminatory Plan
W-2 Reporting of employer-sponsored health coverage Patient Protection and Affordable Care Act Requires employers to report the total cost of employer- sponsored health coverage on employees Forms W-2. Applies to Forms W-2 for 2012 for first time. For informational purposes only ◦To inform employees of the cost of their health care coverage ◦Does NOT cause excludable employer-sponsored health care coverage to become taxable ◦Aggregate reportable employer cost reported on W-2 in box 12, code DD ◦No reporting on Form W-3 Reporting exceptions for 2012 W-2’s: ◦If employer filed less than 250 W-2’s for preceding calendar year ◦If employee terms and requests a W-2 before end of calendar year
W-2 Reporting of employer-sponsored health coverage Definitions to know (pages 4-12 thru 4-18) Aggregate Cost – total cost of coverage under all applicable employer-sponsored coverage provided to employee Applicable employer-sponsored coverage – coverage under any group health plan made available to employee by employer that is excludable from employee’s gross income – see exceptions (p & 4-13) Group health plans – A plan of, or contributed to by, an employer or employee organization to provide health care to employees, former employees, the employer, others associated or formerly associated with the employer in a business relationship, or their families Aggregate reportable cost – Includes both the portion of the cost paid by the employer and the portion of the cost paid by the employee, regardless of pre-tax or after-tax contributions
W-2 Reporting of employer-sponsored health coverage Definitions to know (continued) Not included in the aggregate reportable cost – ◦Archer medical savings account ◦Health savings account ◦Multiemployer plan (IE: amounts contributed to a union plan) ◦Health reimbursement arrangement ◦Health flexible spending arrangement ◦Dental or vision plan (if plan is offered under a separate policy, certificate, or contract of insurance) ◦Cost of coverage under hospital indemnity or other fixed indemnity insurance (UNLESS employee purchases policy on a pre-tax basis under a Section 125 plan OR employer makes any contribution to the cost of coverage that is excludable ◦Self-insured plan not subject to COBRA ◦Plan primarily for the military ◦Excess reimbursements ◦Coverage provided under an EAP, wellness program, or on-site medical clinic
W-2 Reporting of employer-sponsored health coverage Definitions to know (continued) Methods of calculating the cost of coverage – ◦COBRA applicable premium method ◦Premium charged method ◦Modified COBRA premium method ◦Composite rate ◦Employer provides some benefits that are employer-sponsored coverage and others that are not ◦Cost changes during the year ◦Employee begins, changes, or terminates coverage during the year ◦Adjustments for events after end of calendar year ◦Coverage period that includes December 31 st and continues into the subsequent calendar year ◦Transition relief
Medical Savings Accounts (Archer MSA) Established by Health Insurance Portability and Accountability Act (HIPA) of 1996 Small Employers (no more than 50 employees). Eligibility can continue for all employees until the year after the employer has 200 employees. At that point only employees currently enrolled can continue to contribute Employee must be covered only by high deductible health insurance plan. For 2012 annual deductible $2,100 – $3,150 for individual $4,200 - $6,300 for family Maximum out-of-pocket expenses can be no more than $4,200 for individual coverage $7,650 for family coverage Cannot be part of Cafeteria Plan
Contributions can be made by employer or employee (not both) Employee contributions are deductible from income on personal tax return. Subject to federal income tax withholding and employment taxes. Employer contributions are excludable from income. Medical Savings Accounts (Archer MSA) Cont. Employee deduction cannot exceed employee’s compensation Deduction or Contribution is limited to: 65% of the plan deductible for individual coverage 75% of the plan deductible for family coverage. −Employer contributions must be the same amount for each employee - either dollar amount or percentage of applicable deductible −Employer contributions in excess are included in income. MSA Contribution Limitations
−Cannot be part of a Cafeteria Plan −Distributions from MSAs are excluded from income if they are for medical expenses incurred by employee or his/her dependents Covered medical expenses don’t include premiums for insurance (other than long-term care), for health care under COBRA, or for health care coverage while receiving unemployment insurance benefits Person for whom expenses are incurred must be covered only by high deductible health plan Distributions of earnings included in income are ◦subject to an additional 20% tax ◦unless made after age 65, disability, or death MSA Trustee or Custodian is not required to determine use of distributions; this is the responsibility of the account holder Medical Savings Accounts (Archer MSA) Cont.
Reporting Requirements: Employer Contributions Box 12 R on W-2, code R Plan trustees report on 5498-SA Reported on employee’s personal tax return Employee Deductions Box 1, 3 and 5 on W-2 Employee takes deduction on personal income tax return for amount contributed Plan trustees report on 5498-SA Distributions Plan trustees report on 1099-SA Medical Savings Accounts (Archer MSA) Cont.
Treated as accident and health insurance under “Health Insurance Portability and Accountability Act of 1996” Employer provided coverage is excluded from income Benefits are excluded from income ◦ If per diem – excludible limit is $310/day in 2012 (indexed for inflation) ◦ Excess will be excluded to the extent of actual cost of care Long Term Care Insurance Restrictions Not subject to COBRA Cannot be part of Cafeteria Plan If part of flexible spending arrangement it is included in employee’s taxable income
Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) Requires health plan sponsors to provide employees and their beneficiaries with the opportunity to elect continued group health coverage for a given period should their coverage be lost due to “qualifying event” Applies to employers with 20 or more employees (FTEs) on typical business day. Coverage period generally is 18 to 36 months Coverage same as provided to similarly situated beneficiaries who have not suffered the qualifying event. Employees who purchased health care coverage under a cafeteria plan (including flexible spending) are eligible for COBRA continuation at level of coverage before event Long Term Care Insurance is not included in COBRA
Qualifying Events: Death of covered employee – 36 months Covered employee’s termination of employment or reduction in work hours (other than gross misconduct) – 18 months ◦If the reason for absence is employee’s military service – 24 months ◦If another qualifying event occurs (other than employer’s bankruptcy) period extends to 36 months. ◦Qualified beneficiary (employee or dependent) is disabled under Social Security Act during the first 60 days of continued coverage - 29 months −If another qualifying event during 29 months (other than employer bankruptcy) coverage extends to 36 months Employer filed bankruptcy – life of retiree or retiree’s spouse Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) Cont.
Employer’s bankruptcy Coverage is life of retiree or retiree’s spouse. Once retiree dies – 36 months for retiree’s spouse and children from date of retiree’s death Divorce or separation of covered employee (date of divorce is the qualifying event) – 36 months Dependent child losing that status – 36 months Premium Requirements Can be up to 102% of the group premium paid for similar coverage under the plan by the employer and employees. The maximum premium increases to 150% for disabled qualified beneficiaries after the 18 th month of continuation coverage. Premium payment may not be required earlier than 45 days after the qualified beneficiary elects continuation of coverage Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) Cont.
Election and notice provisions Election period must last at least 60 days from the date when coverage was terminated or the qualified beneficiary receives notice – which ever is later Plan must provide written notice of COBRA continuation coverage within 90 days of when coverage begins Employee or Employer must notify plan administrator of qualifying event, responsibility and timing depends on the event Once aware of the qualifying event, plan administrator has 14 days to notify qualified beneficiaries of their rights Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) Cont.
Penalties for Noncompliance Employers subject to $100 per day penalty for each qualified beneficiary (maximum $200 per day per family affected by same qualifying event). ◦Penalty will not be imposed if failure is due to reasonable cause and is corrected within 30 days of discovery ◦Unintentional failures due to reasonable cause – maximum penalty is lesser of 10% of employer premiums for group health plans during preceding taxable year to $500,000 Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) Cont.
FMLA/COBRA Interaction Date employee is to return to work at end of FMLA Leave (or date employee notifies employer he/she is not returning if before end of FMLA Leave) is qualifying date ◦Unpaid required premium while on FMLA Leave does not eliminate the employees right to COBRA continuation coverage
American Recovery and Reinvestment Act of 2009 (AARA) Discounted COBRA Premiums & Subsidies American Recovery and Reinvestment Act of 2009 (AARA) – provides employees who have involuntarily lost their job chance to pay for continued health insurance at a deep discount. “Assistance eligible individuals” pay 35% of COBRA continuation coverage premium ◦Assistance Eligible Individual defined as an employee who has involuntarily lost his/her job ◦The qualifying event must have occurred between Sept 1, 2008 and May 31, 2010 ◦Termination has to be involuntary and no caused by employee’s gross misconduct ◦Individual can be “assistance eligible” more than once! ◦Discounted premium is calculated on the amount employee would normally be required to pay for COBRA coverage
American Recovery and Reinvestment Act of 2009 (AARA) Cont. Assistance for the subsidy ends with first month beginning on or after the earlier of: ◦15 months after 1 st day of 1 st month of eligibility ◦End of maximum required period of COBRA continuation coverage ◦Date the individual becomes eligible for Medicare benefits or health coverage under another group health plan (after end of any applicable waiting period) ◦Subsidy may be available beyond August 31, 2011 Employee must notify plan upon eligibility for other coverage Individual can appeal denial of subsidy
American Recovery and Reinvestment Act of 2009 (AARA) Cont. Regular COBRA continuation notice must now also include: ◦Description of beneficiary’s right to premium reduction ◦Forms necessary to establish eligibility & apply for premium reduction ◦Contact information for group health plan administrator ◦Description of extended election period for individuals who had COBRA continuation coverage in effect on Feb 17, 2009 ◦If available, option to enroll in different coverage than what beneficiary was covered by (prior to the qualifying event) ◦Beneficiary’s obligation to notify plan of eligibility under another group health plan or Medicare and subsequent penalties for not providing such information Employer can face penalties for not providing notices to eligible individuals
American Recovery and Reinvestment Act of 2009 (AARA) Cont. Extension of eligibility period to February 28, 2010 and 9 months COBRA subsidy period extended to 15 months – Dept of Defense Appropriations Act, 2010, Temporary Extension Act of 2010 and Continuing Extension Act of 2010 Employer can allow an assistance eligible individual to change coverage options. If allowed: ◦Premium must be no more than than premium paid by individual for coverage prior to termination of employment ◦Different coverage must also be offered to employers’ active employees ◦Coverage requirements: −Must include health care coverage −Cannot be a flexible spending arrangement −Cannot be for treatment at an on-site medical facility maintained by employer that consists primarily of first-aid services, prevention & wellness care, or similar care
American Recovery and Reinvestment Act of 2009 (AARA) Cont. High earners may have to pay back subsidy as tax payment (if modified AGI exceeds $145,000 ($290,000 for joint filers) – employer does not make this determination but is made when filing Form 1040 ◦High earners can “opt out” of the COBRA subsidy Employer is usually responsible for subsidizing COBRA discount and claiming reimbursement of that amount against its payroll taxes on Form 941
Paid solely by employer (not salary reduction election or cafeteria plan) Not limited by number of employees or only to employees who have High Deductible health plans Reimburses employee for medical care expenses (for employee, spouse, dependents and adult children until the year they reach age 27). Reimbursements up to maximum dollar amount (unused portion carried forward to subsequent coverage periods). Unused portion cannot be paid to employee at end of year (or at termination) Reimbursements can be paid with debit and credit cards – substantiation procedures exist and must be met Health Reimbursement Arrangements (HRA)
Health Reimbursement Arrangements (HRA) Cont’d Benefits under HRA: Generally excluded from employee’s gross income Qualifications for exclusion: ◦May only reimburse expenses for medical care as defined in IRC section 213(d) ◦Expenses must be substantiated ◦Expenses may not be for prior taxable year, incurred before date the HRA began, or before employee enrolled in HRA If amount credited to a reimbursement arrangement is directly or indirectly based on amount forfeited under a Sect 125 flex plan, arrangement is treated as funded by salary reduction
Qualifications for exclusion No right to receive cash or any benefit (other than reimbursement of medical care expenses) If any person has such a right currently or in an future year, all distributions to all persons under HRA in current year are included in gross income (even amounts paid to reimburse medical care expenses). Arrangements outside HRA that provide for adjustment of employee’s compensation will be considered in determining eligibility for exclusion If bonus at retirement is related to HRA balance or severance is paid only to employees who have HRA balance, then all reimbursements for all participants are disqualified. Health Reimbursement Arrangements (HRA) Cont’d
Qualifications for exclusion (Cont) Reimbursements can be to former employees and retirees up to the unused balance. Employer may reduce maximum balance after retirement or termination for any administrative costs of continuing coverage. Employer may or may not provide an increase in amount available after an employee retires or terminates employment. If HRA allows payment of medical benefits to designated beneficiary other than the employee’s spouse or dependents payments are not excludable from income ◦Effective 8/14/06 (delayed until 2009 for HRA provisions created before 8/14/06) Health Reimbursement Arrangements (HRA) Cont’d
HRAs and Cafeteria Plans Employer contributions to an HRA may not be attributable to salary reductions or provided under a section 125 cafeteria plan to be excluded from taxable income Look at all circumstances in determination If salary reduction election for coverage period exceeds the actual cost of the accident or health plan coverage for that period, salary reduction is attributable to HRA – Look to COBRA rates for this. ◦If correlation exists between maximum reimbursement amount available and amount of salary reduction election for accident and health plan then reduction is attributable to HRA Health Reimbursement Arrangements (HRA) Cont’d
HRAs and Flexible Spending Accounts (FSAs) Amount credited to HRA must not be directly or indirectly based on amount forfeited under FSA If medical expenses are reimbursable under HRA and FSA, ◦HRA must be exhausted before FSA Before FSA plan year begins, the plan document can specify coverage In no case can HRA and FSA reimburse the same medical care expenses. Health Reimbursement Arrangements (HRA) Cont’d
Nondiscrimination rules applicable to HRAs Section 105(h) same as for self-insured medical reimbursement plans HRA is subject to COBRA HRA must provide for continuation of maximum reimbursement with increase(s) at same time and same increment as similarly situated non-COBRA beneficiaries Plan can provide for continued reimbursement regardless of election of continuation coverage (not mandatory) No Reporting Requirement for HRA.
Medicare Prescription Drug Improvement and Modernization Act of 2003 Effective for Taxable years beginning after 12/31/03 Tax-exempt trust or custodial account created exclusively to pay for qualified medical expenses of the account holder (employee) and his or her spouse and dependents. Subject to rules similar to those for IRAs Health Savings Accounts (HSA)
Health Savings Accounts (HSA ) Cont’d Qualifications for exclusion Individuals must be only in high deductible health plan (HDHP) Annual deductible for 2012 ◦at least $1,200 for individual coverage out of pocket expense limits no more than $6,050 ◦$2,400 for family coverage out of pocket no more than $12,100 for family coverage. no amounts payable for medical expenses until family has incurred annual covered medical expenses in excess of minimum annual deductible An HDHP can have a smaller deductible or none at all for preventive care.
Qualifications for exclusion (cont’d) The insurance can be a PPO or POS – in which case the annual out-of-pocket limit is determined by services within the network Contributions Contributions can be made by the employer and employee All contributions are aggregated for purposes of maximum contribution limit. Contributions to Archer MSAs reduce the limit available for HSA for tax exclusion Any amount over the limit is includable in gross income ◦There is a 6% excise tax for excess individual and employer contributions in addition to all federal taxes Health Savings Accounts (HSA ) Cont’d
Contributions (cont’d) Maximum annual contribution is the lesser of 100% of annual deductible or Maximum deductible permitted same as Archer MSA For 2012 maximum is $3,100 for an individual $6,250 for a family Catch up is allowed for individuals at least 55 years old on the last day of the tax year. For 2009 and beyond $1,000 Health Savings Accounts (HSA ) Cont’d
Contributions (cont’d) No contributions can be made once the individual is eligible for Medicare (65 years old). Amounts can be rolled over from an Archer MSA and IRA another HAS ◦Employer contributions must be the same for everyone with comparable coverage either at the same amount or percent of deductible Comparability is applied separately to part-time workers (normally less than 30 hours per week). Employers can make a one-time transfer of balance in employee’s HRA or FSA to an HSA. Maximum amount is lesser of HSA or FSA balance on date of transfer OR September 21, Transfer must be completed by January 1, 2012.
Health Savings Accounts (HSA ) Cont’d Contributions (cont’d) Transfer from an IRA is permitted as a one-time contribution to an HSA – up to maximum deductible contribution limit at the time of the contribution Transfers from an HRA, FSA, or IRA are treated as rollover contributions and are non taxable ◦EXCEPTION: If employee is not an eligible individual with coverage under an HDHP at any time during the prior 12 months beginning with the month of the HSA distribution; if employee cannot meet the requirements, distribution is included in gross income and employee is subject to additional tax equal to 10% of distribution unless reason for ineligibility is employee’s death or disability) Transfer provision not applicable to SEP’s or SIMPLE retirement accounts
HSA and HDHP can be included in a Cafeteria Plan HSAs are not subject to COBRA continuation coverage Employer can make larger contributions to non-highly compensated employees’ HSA’s beginning in 2007 Calculating Comparable Contributions Sect 4980G mandates use of calendar year for comparability testing purposes Several ways to comply with testing requirements: ◦Pay-as-you-go basis ◦Look-back basis ◦Pre-funded basis Impermissible Contribution Methods do exist! Health Savings Accounts (HSA ) Cont’d
Penalty for not making comparable contributions to all employees’ HSA’s is an excise tax equal to 35% of all amounts employer contributed during the calendar year Distributions Excluded from gross income if for qualified medical expenses of employee, spouse or dependents not covered by other insurance If not used for qualified medical expenses included in gross income subject to additional 10% tax unless ◦after death, ◦disability, ◦or the employee reaches 65 years old.
Distributions Qualified medical expenses Generally health insurance premiums are not qualified except: Qualified long term care insurance COBRA health care continuation coverage Health insurance premiums while the individual is receiving unemployment compensation benefits Individual over 65 for Medicare premiums and employer share of premium for employer provided health insurance Cannot use HSA funds to pay premiums for Medigap policies. Health Savings Accounts (HSA ) Cont’d
Employers are not required to determine whether HSA distributions are used for qualified medical expenses. Employee makes determinations and must maintain records to substantiate. Employers can provide eligible individuals with debit, credit or stored-value cards – same guidance as under HRAs
Health Savings Accounts (HSA ) Cont’d In 2004, IRS issued guidance clarifying how FSAs and HRAs interact with HSAs Employee covered under DHDP and a health FSA or HRA that pays or reimburses medical expenses, not eligible to make contributions to an HSA ◦CAN make contributions to an HSA for period of time employee is covered under certain specified types of employer-provided plans that reimburse employee medical expenses Limited purpose health FSA or HRA Suspended HRA Post-deductible health FSA or HRA Retirement HRA
Health Savings Accounts (HSA ) Cont’d Effect of FSA grace period on HSA eligibility In 2005, IRS issued guidelines clarifying an employee participating in an FSA and covered by a grace period (for incurring medical expenses after the end of the plan year) is not eligible to contribute to an HSA until after the FIRST DAY of the FIRST MONTH following the end of the grace period. Employer could adopt one of two options which will affect employees’ HSA eligibility during the cafeteria plan period General purpose health FSA during grace period Mandatory conversion from health FSA to HSA compatible health FSA for all participants
W2 Reporting Requirements Employer contributions and salary reductions contributions (pre-tax deductions) Box 12 with Code “W” on W-2 Employer contributions over limits Box 1,3, and 5 on W-2 with taxes in boxes 2, 4, and 6 Employee contributions not made by salary reduction Box 1, 3, and 5 on W-2 Employee can deduct up to the annual limit on personal tax return Health Savings Accounts (HSA ) Cont’d
Family Medical Leave Act (FMLA) Allows employees to take up to 12 weeks of unpaid leave in any 12 month period Newborn or newly adopted child Take care of seriously ill child, spouse, or parent Care for themselves if they are seriously ill Employee’s spouse, child or parent is a covered military member on active duty, OR has been notified of an impending call to active duty in support of a contingency operation (can take up to 26 wks in a 12 month period to care for covered military service member with a serious injury or illness) Guarantees continuation of employees’ health benefits while on leave
Family Medical Leave Act (FMLA) Cont ‘d Applies to private sector employers and public sector employees with 50 or more employees (including part-time and employees on leave or suspension, but not laid-off employees For public sector (government) employees and public elementary and secondary schools – no limit on employees or distance between locations Employee must have been employed by employer for at least 12 months and have worked at least 1,250 hours within the previous 12-month period ◦the 12 months of employment need not be consecutive ◦Employment prior to a continuous break in service of 7 years or more does not need to be counted, unless: For fulfillment of National Guard or Reserve Period of approved absence or unpaid leave
Family Medical Leave Act (FMLA) Cont ‘d Expatriates are not covered Employer decides what constitutes a 12 mo period – must be consistent; if employer policy is not clear, what favors employee CA & NJ require FMLA Employer can require employee to take leave “Serious Health Condition” defined in FMLA regulations Intermittent leave ◦Can be several days or weeks at a time or by working reduced hours ◦Reduced hours can be deducted from an exempt employee’s salary without jeopardizing exempt status ◦If employee would be required to work overtime if not for FMLA leave, hours employee would have been required to work may be counted against FMLA entitlement
Family Medical Leave Act (FMLA) Cont ‘d Designation as paid or unpaid leave Employer an require employee to use paid leave available to the employee Employer must designate leave as paid or unpaid FMLA leave within 5 days of receiving notice from employee a leave will be taken. ◦Notice must be in writing. ◦Must inform employee of number of hours, days, or weeks that will be counted against the employee’s FMLA leave entitlement Employer must notify employee of eligibility to take FMLA leave within 5 business days after either employee requests leave or employer learns employee’s leave may be for an FMLA qualifying reason. If employee is not eligible for FMLA, notice must indicate at least one reason why employee is not eligible or has no FMLA leave available.
Family Medical Leave Act (FMLA) Cont ‘d Regulations provide for a notice of FMLA rights and responsibilities of the employer separate from the eligibility notice. Notice must include the following information: ◦FMLA leave designations ◦How 12 mo period and “single 12-mo period” are determined ◦Employee certification requirements ◦Substitution of paid leave for unpaid leave ◦Premium payment requirements to maintain health benefits ◦Job restoration rights, including effect of a “key employee” designation ◦Potential liability for health insurance premiums if employee does not return to work
Family Medical Leave Act (FMLA) Cont ‘d Consequences exist for employer’s failure to follow FMLA notice requirements There is a notice requirement for employees ◦If medical treatment is foreseeable, a 30 day notice (or as much as can be given under the circumstances) Medical or military certification can be required by employer Health insurance benefits employee enjoyed before the leave must be continued during FMLA leave on the same basis ◦Employer can require any employee premiums ◦If employee fails to pay, employee can lose coverage after 30 days, but coverage must be restored when employee returns to work without employee having to meet any additional qualifications for coverage
Family Medical Leave Act (FMLA) Cont ‘d Job guarantee upon return from leave – either previous job or one that is “equivalent” with no loss of pay or benefits ◦Employer may deny reinstatement to “key employees” if it’s necessary to prevent “substantial and grievous” economic injury to the employer’s operations Key employee = paid on a salary basis; among the highest paid 10% of all employees within 75 miles of employee’s worksite when FMLA leave was requested Recordkeeping Requirements ◦Basic payroll records – hours worked, rate of pay, deductions from wages ◦Records detailing dates and amount of FMLA leave taken ◦Copies of notices and documents related to FMLA leave
Family Medical Leave Act (FMLA) Cont ‘d Enforcement administered and enforced by Department of Labor’s Wage & Hour Division Retaliation for exercise of FMLA rights is prohibited by law Employers covered by both FMLA and state law must comply with the law that provides the greatest benefits and protection to the employee requesting leave Interaction of FMLA and cafeteria plans ◦Employee is responsible for their share of premiums of group health plan during leave ◦Cafeteria plan may offer one or more of the following 3 payment options Pre-Pay Pay-As-You-Go Catch-up
Sick Leave Pay Paid by employer from regular payroll account Taxable as regular income Worker’s Compensation is different! Sick Leave Pay under a Separate plan (STD, LTD) Premiums paid by employee on after tax basis – benefits are not taxable Premiums paid by employer or on pre-tax basis – benefits are fully taxable Premiums paid by employer and employee (after-tax) – portion of benefits attributable to employer-funded portion is taxable Sick Pay
Responsibility for income withholding and employment taxes Employer pays and is self-insured Employer withholds taxes based on employee’s most recent W-4 Employer withholds and pays employer share of Social Security, Medicare, and FUTA taxes for all payments made within 6 calendar months after the end of the last month during which the employee worked. If employee returns to work, new six-month period begins if employee is later on disability Sick Pay Cont ‘d
Responsibility for income withholding and employment taxes Payments made by employer’s agent OR employer is self insured. ◦Agent may withhold FIT at 25% in 2010 ◦Employer retains responsibility for Social Security, Medicare, and FUTA unless agreement with agent to take on this responsibility. Payments are made by an insurance company (3 rd party) who receives premiums for disability coverage. ◦Third party not required to withhold FIT from payments unless requested by disabled employee (W-4S) ◦IRS allows for fixed amount or percentage (W-4S has no provision for percentage) ◦Third party withholds and remits Social Security and Medicare taxes or advises employer who pays the taxes and includes in 941. Sick Pay Cont ‘d
Reporting Responsibilities Employer makes payments ◦Report taxable amounts on Form 941 ◦Report income tax withheld on Form 941 ◦Report taxable amounts to employee on Form W-2 ◦Report payments on Form 940 Employer’s agent makes payments ◦Usually employer retains reporting responsibilities Third-party insurer makes payments ◦Both the employer and the 3 rd party have reporting responsibilities; if 3 rd party does not properly transfer liability to employer, 3 rd party is required to report on Form 941, Form W2, and Form 940
Permanent Disability benefits Payments subject to income tax when premiums were paid ◦by employer or ◦with pre-tax dollars Payments are not subject to Social Security, Medicare, or FUTA ◦On or after employment relationship has terminated because of death or disability retirement ◦Employee receiving disability insurance benefits under the Social Security Act – still subject to FUTA Sick Pay Cont ‘d
Form of insurance employers are required to buy to insulate them from lawsuits brought by employees who are hurt or become ill while working. Benefit payments – not included in gross income or subject to any employment taxes Premium payments – paid by employer based on specific earnings and classifications Each state has its own Workers Compensation Insurance law. There are 4 categories: National Council States (38 states plus District of Columbia) Non-National Council States (7 states) Monopolistic States (5 states) Competitive State Funds (12 National Council States) Workers Compensation Insurance
Workers Compensation Insurance Cont’d Employers are assigned Classification Codes based on the type of business ◦There are classification code exceptions for employees who work exclusively in an office, outside salespeople, and drivers & their helpers ◦Certain types of compensation can be excluded when determining total payroll figure The “half” portion of overtime premium Reimbursed travel expenses Third-party sick pay Reimbursed moving expenses Tips Personal use of company-provided vehicle Group Term Life Insurance over $50,000. Severance Pay Education Assistance Payments Employer contributions to pension or insurance plans
Cafeteria Plans Cafeteria Plans provide employees a choice from a “menu” of cash compensation and nontaxable benefits authorized by Section 125 of the Internal Revenue Code A qualified Cafeteria Plan must contain at least one taxable (cash) and one nontaxable (qualified) benefit Examples of qualified benefits: Coverage under accident & health insurance plans Coverage under dependent care assistance plans Group Term Life insurance on lives of employees Qualified adoption assistance Premiums for COBRA continuation coverage Accidental death & dismemberment insurance Long-term and short-term disability coverage A 401(k) plan Contributions to HSA
Cafeteria Plans Cont’d Exceptions to qualified non-taxable benefits would be: Scholarships and fellowships Nontaxable fringe benefits under IRC Section 132 Educational Assistance Meals and lodging furnished for the benefit of the employer Employer contributions to Archer MSAs Long-term care insurance (unless purchased with funds from a HSA offered as a qualified benefit) Group-term life insurance on the life of anyone other than an employee Health Reimbursement Arrangements that allow any unused amount to be carried over to the next coverage period to increase the maximum reimbursement amount Elective deferrals to a Section 403(b) plan
Cafeteria Plans Cont’d Reasons a plan would fail to satisfy Section 125 requirements: Offering nonqualified benefits Not offering an election between at least one permitted taxable benefit and at least one qualified benefit Deferring compensation Failing to comply with the uniform coverage rule or use-or- lose rule Allowing employees to revoke elections or make new elections during a plan year (except as allowed by law) Failing to comply with substantiation requirements Paying or reimbursing expenses incurred for qualified benefits before the effective date of the cafeteria plan or before a period of coverage Allocating experience gains other than expressly allowed by law Failing to comply with grace period rules
Cafeteria Plans Cont’d Premium-only plan – known as POP’s or premium conversion plans. Used by employers who require their employees to contribute towards benefits (usually health insurance) Deferred Compensation is prohibited under the rules governing cafeteria plans EXCEPTIONS ◦401(k) ◦Educational institution contributions for postretirement group-term life insurance ◦Amounts remaining in a HSA at end of calendar year ◦Benefits under a long-term disability policy relating to more than one year ◦Mandatory two-year election for vision or dental ◦Using salary reduction amounts to pay premiums for the 1 st month of the next plan year ◦Purchase of additional time off carried over to next year
Cafeteria Plans Cont’d Cafeteria plans are usually funded by either or both of the following: “Flex dollars” or “flex credits” Salary reduction – pre-tax contributions by the employee result in a higher take-home pay for the employee Automatic deferrals (i.e., “negative elections”) are OK After-tax employee contributions also are part of a cafeteria plan A Cafeteria Plan must have a written document laying out the particulars of the plan and it must be intended to be a permanent plan. There are certain items the plan must contain to be considered a Cafeteria Plan according to IRC Section 125. (See page 4-70)
Cafeteria Plans Cont’d Benefit Elections Usually irrevocable before the benefit becomes available or the plan year begins. Changes or revocations during the plan year are only allowed under limited circumstances. IRS Regulations clarify employees’ right to revoke or change an election during a plan year based on a change in status Marital status changes Changes in the number of dependents Employment status changes (applies to employee, spouse, or dependent) Change in dependent status Residence change Adoptions An election change can be made only if the status change results in the employee, spouse, or dependent gaining or losing eligibility for coverage under the plan
Cafeteria Plans Cont’d Special Exceptions COBRA Medical Support orders Medicare or Medicaid eligibility Special enrollment rights under HIPPA Elective deferrals under a CODA FMLA leave changes Election changes may also be made to reflect significant cost or coverage changes for all types of qualified benefits provided under a Cafeteria Plan during the plan year. Contributions may be made to a HSA through a cafeteria plan, with specific rules surrounding the pre-tax qualification Option election for new employees – 30 days after hire date to elect coverage
Cafeteria Plans Cont’d Participation in a Cafeteria Plan must be restricted to employees and the plan must be maintained for their benefit. Nondiscrimination testing Plan cannot discriminate in terms of eligibility, contributions, or benefits in favor of highly compensated individuals, or participants, or key employees Three main nondiscrimination tests ◦Eligibility test ◦Contributions and benefits test ◦Concentration test Special health benefits test Separate tests allowed for new employees Testing must be performed at year-end
Cafeteria Plans Cont’d Flexible Spending Arrangements (FSA’s) Employees can elect a pre-tax salary deduction to pay for certain covered health care, dependent care, and adoption expenses. There are specific requirements that FSA’s must meet ◦Elections cover a full plan year ◦Limit of $2,500. beginning in 2013 ◦No deferred compensation – “use it or lose it” ◦Plan can allow a “grace period” up to 2 ½ months ◦Unused balances can be distributed to reservists – ◦ “qualified reservist distributions” allowable if employer decides to include it in the cafeteria plan ◦Uniform coverage throughout coverage period ◦12 month period of coverage ◦Prohibited reimbursements; claim substantiation; claims incurred ◦Limiting health FSA enrollment to health plan participants
Cafeteria Plans Cont’d Flexible Spending Arrangements (FSA’s) (cont’d) Specific Requirements (continued): ◦Reimbursements must be for medical expenses – health care reform legislation has changed the definition of medical expenses – only cost of medicines prescribed by a doctor and insulin (for over-the-counter drugs, doctor must provide a prescription to qualify for FSA) Coordination with HIPAA requirements FSA benefits followed transferred employees after asset sale Can be set up to use debit and credit cards for payments and reimbursements with specific requirements ◦After 1/15/11, FSA debit cards may not be used to purchase over-the-counter medicines or drugs unless specific IRS rules are followed Special dependent care assistance rules
Cafeteria Plans Cont’d Tax Treatment of Cafeteria Plans Employer contributions are excluded from employee’s income – not subject to federal withholding or employment taxes Pre-Tax contributions made by employee are excluded from employee’s income – not subject to federal withholding, Social Security, Medicare and FUTA taxes (401(k) plan pre-tax contributions are subject to Social Security, Medicare, and FUTA taxes) Group-term life insurance – first $50,000. is not taxable After-tax contributions – totally taxable W-2 Reporting 401(k) – does not reduce Social Security or Medicare taxable wages; report amount of 401(k) deferral in Box 12, Code “D” Dependent care assistance – report amount in Box 10
Retirement and Deferred Compensation Plans Qualified Pension and Profit Sharing Plans IRC 401(a) Cash or Deferred Arrangements IRC 401(k) Tax-Sheltered Annuities IRC 403(b) Deferred Comp Plans for Public Sector and Tax-Exempt Groups IRC 457 Employee-Funded Plans IRC 501(c)(18)(D) Individual Retirement Accounts (IRA) Simplified Employee Pensions IRC 408(k) Savings Incentive Match Plans for Employees of Small Employers (SIMPLE Plans) Employee Stock Ownership Plans Nonqualified Deferred Compensation Plans
Retirement and Deferred Compensation Plans Cont’d Qualified Pension and Profit Sharing Plans – 401(a) Defined Benefit Plans ◦ Benefit to employee based on age, compensation level and length of service ◦ Employer required to make contributions to plan sufficient to provide level of benefits earned by employee Defined Contribution Plans ◦ Account for each employee, with set amount being contributed. Employee’s retirement benefit depends on the amount of money in the account at retirement. ◦ Payroll maintains records of hours worked, compensation earned, dates of birth and hire date
Types of Defined Contribution Plans ◦ Money Purchase Pension Plan - Employer makes contributions each year based on employee’s compensation. ◦ Profit Sharing Plan – Employer contributions are substantial and recurring, although they may be discretionary to some degree Qualified Pension and Profit Sharing Plans 401 (a) Retirement and Deferred Compensation Plans Cont’d
Annual Compensation and Contribution Limits ◦ Set by Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA) ◦ For 2012 annual compensation limit is $250,000 (indexed annually to the next lowest multiple of $5,000). ◦ Annual contributions and other “additions” to defined contribution plans is limited under IRC 415 to the lesser of $50,000 in 2012 (indexed annually) or 100% of employee’s annual compensation. ◦ Pre-tax elective deferrals to 401(k), 403(b), 457, 125, 132(f)(4) are included in employee’s contribution to determine the limit. Qualified Pension and Profit Sharing Plans 401 (a) Tax Treatment of Pension and Profit Sharing Plans ◦Qualified Plan – meets certain requirements under IRC 401(a) regarding participation, vesting, contribution limits, benefit limits, and nondiscrimination in favor of highly compensated employees. Employer contributions are excluded from wages and are not subject to federal income tax withholding, or Employment taxes. Employee after-tax contributions are included in income and taxable whether voluntary or required.
Cash or Deferred Arrangements (CODA) Voluntary Salary Reduction Plan – 401(k) ◦ Pension Protection Act of 2006 put ability to automatically enroll employees in 401(k) plan into the law for plan years starting after 12/31/07 Must provide specific schedule of automatic contribution. It must be at least 3% at hire and may stay at that level until the beginning of the second year after hire. Increases must be at least 1% each year up to 6% for fourth. The arrangement can specify larger percents up to 10% of compensation. If employer matches contributions, the plan must provide 100% match for first 1%; plus 50% for contributions between 2% and 6% or non-elective contribution of at least 3% of compensation – cannot contribute at high percent for highly compensated employees and cannot match contributions over 6%. ◦ When hired employees must have 90 days to withdraw from automatic elections and recover contributions from the plan. Employees can change or stop future contributions at any time.
Contribution Limits for 401(k) 2012 contribution limit is $17,000 ◦Adjusted for inflation in $500 increments Tax Treatment of 401(k) contributions ◦Not taxable for Federal Income Tax (and most states) ◦Taxable for Employment Taxes Reporting for 401(k) contributions on W-2 ◦Not in box 1, but in boxes 3 & 5 ◦In box 12 with a “D” ◦Retirement box is checked if any deductions in the tax year. Cash or Deferred Arrangements (CODA) Catch-up” contribution began in 2002 Under EGTRRA –plans 401(k), 403(b), SEP, Simple, and 457 plans ◦Employee must be at least 50 years old in the current year Limits of “catch-up” for all but SIMPLE ◦2012 catch-up limit is $5,500 ◦Adjusted for inflation in $500 increments SIMPLE “catch-up” ◦limit is $2,500 in 2012 ◦Adjusted for inflation in $500 increments
Non Discrimination Testing Must not discriminate in favor of highly compensated employees ◦5% owner of stock or capital ◦Annual compensation over $115,000 in 2012 or top paid 20% of employees Other Contributions can be included “Catch-up” Contributions are not counted. At least 70% of non-highly compensated employees must be eligible or the % of non-highly compensated eligible employees is at least 70% of the percentage of eligible highly compensated employees. Cash or Deferred Arrangements (CODA)
Failure of ADP (Actual Deferral Percentage) Test Must distribute some elective deferrals and earnings to highly compensated employees within certain period and report on 1099-R Cash or Deferred Arrangements (CODA) Holding period for 401k contributions In 1996 the Labor Dept. shortened the maximum holding period for 401(k) contributions from 90 days to the 15 th business day of the month following the month during which the amount would have been paid to the employee. Employers who cannot meet the deadline can have an extra 10 business days, but must provide reasons for the delay. Other ways to meet non-discrimination testing Employer matches 100% of elective deferrals for not highly compensative employees up to 3% and 50% up to 5% Employer is required to contribute at least 3% of salary for non highly compensated employees regardless of the employee’s participation in 401(k)
Early Distribution Penalty ◦ If employee receives a distribution before retirement (with exceptions) there is a 10% excise tax on the taxable portion of the distribution. Veterans can make deferrals for years spent in military service ◦ Extra deferrals can be made for up to three times the period of military service (not to exceed 5 years) ◦ Separate reporting requirements ◦ Not included in non-discrimination tests Cash or Deferred Arrangements (CODA)
Roth 401(k) Starting in 2006 employers may permit employees to designate some or all of the contributions as Roth 401(k) ◦ The contributions are made with after-tax dollars. ◦ The earnings from the eventual distribution will be tax exempt. ◦ All 401(k) contributions (both pre-tax and Roth) are taken into account for limits and anti-discrimination testing. Small Business Jobs Act of 2010 – allows participants in 401(k), 403 (b) and 457 plans with a qualified designated Roth contribution program to roll over amounts distributed from these plans to designated Roth accounts – effective September 27, 2010 Reporting of Roth 401(k) on W-2 ◦ The amount contributed in boxes 1, 3 & 5. ◦ The amount contributed in box 12 with “AA”
Tax Shelter Annuities (b) Who can offer ◦ Public Schools, Tax Exempt Charitable, Religious, and Educational Organizations ◦ Employer can offer a 401(k) program IF it existed before the Tax Reform Act of 1986 Automatic salary reductions ◦ Can qualify as elective deferrals ◦ Newly hired employee, who does not make an election can have automatic 4% deductions toward purchase of annuity. At hire employee must receive notice of auto election and right to elect to change the amount or opt out altogether. Every year employee notified of reduction percentage and their right to change it, including procedure and timing for doing so.
Requirements ◦ Annuity contract may not be purchased through a qualified annuity plan under Section 403(a) ◦ Employee’s rights must be non-forfeitable unless employee fails to pay premiums ◦ Plan (other than church plan) must meet non-discrimination requirements. ◦ Plan must offer all employees the chance to defer at least $200 annually if one employee is given the opportunity. ◦ The elective deferral limits must be met if plan provides for salary reduction agreement. Tax Shelter Annuities (b)
Requirements and Taxability ◦ Has many of the same requirements as 401(k) ◦ Employer contributions (e.g. match) are not included in wages or subject to withholding ◦ Employee contributions are not Taxable for Federal Income Tax and most state income taxes. ◦ Employee contributions are Taxable for employment taxes Reporting on W-2 ◦ Contributions not in box 1 but in boxes 3 & 5. Contributions also show in box 12 with an “E” ◦ Box 13 Retirement plan is checked if there are any contributions for the tax year Excess deferrals included in box 12 but NOT included in box 1. ◦ Reported on 1099-R. Deferrals can go to a Roth beginning in 2006
Tax Shelter Annuities (b) Amount of catch-up limited to the lesser of ◦ $3,000 additional contribution in any year (same as catch- up for those at least 50 years old) ◦ $15,000 reduced by any amounts contributed under this special provision in previous years. ◦ $5,000 x years of service less total elective deferrals from previous years. ◦ If eligible for both special and over 50 catch-up cannot go over $5,500 – first dollars considered under special rule. Catch-up special rule ◦For employees with as least 15 years of service with employer.
IRC 457 (b) Who can Offer ◦ State and local government employers and tax-exempt organizations (other than churches) Eligibility ◦ Only individuals performing services for the employer are eligible (including independent contractors) Nondiscrimination Testing ◦ 457 plans can be discriminatory. Deferral Limits ◦ Same as 401(k)
Catch-up Contributions – new in 2002 ◦ Same as 401(k) Special rule near retirement ◦ For last 3 years before normal retirement, maximum deferral is lesser of twice the normal deferral or the current year limit plus the limits from previous years, reduced by participant’s deferrals for those years. Cannot use both Catch-up and Special Rule IRC 457 (b)
Rules Funds and earnings in tax-exempt trust for exclusive benefit of employees and beneficiaries ◦Funds must be transferred within 15 business days after the month when would have been paid to employees. Deferrals and earnings remain assets of the employer subject to employer’s general creditors Tax Treatment Not subject to federal income tax withholding Subject to Social Security, Medicare, and FUTA as soon as there is no substantial risk of forfeiture of right to the benefit Reporting Not in Box 1 of W-2, in Box 3 and 5 & in Boxes 4 and 6 Box 12 preceded by Code “G.” Employer should not mark check box in Box 13 “Retirement plan” based on 457 deferrals IRC 457 (b)
Distributions Economic Growth and Tax Relief Reconciliation Act (EGTRRA) of 2001 ◦No distributions before employee reaches age 70-1/2 ◦ separation from employment (retirement) or the employee faces an unforeseeable emergency. ◦Plan may allow early distribution if total amount payable is no more than $5,000 and ◦no amount has been deferred within 2 years of the distribution. Distributions are considered pension ◦Entity distributing has responsibility for withholding and remitting income taxes ◦Reported on 1099-R – Distributions from Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc ◦Distributions under a non-governmental plan – reported on W2, box 1 and box 11 ◦Under the Small Business Jobs Act of 2010, deferrals can go to a Roth IRA beginning in 2011; subject to federal, Social Security, Medicare and FUTA taxation IRC 457(b)
Employee-Funded Plans – 501(c)(18)(D) Pension plans created before June 25, 1959 and funded solely by employee contributions ◦Does not discriminate in favor of highly-compensated employees ◦Deferrals are excluded from Income Taxation requirements ◦Not subject to federal tax withholding ◦IS subject to Social Security and Medicare withholding and is reportable for FUTA taxation W-2 Reporting requirements ◦Deferrals included in box 1 and box 12, code “H” ◦Check box 13 for “Retirement Plan”
Employer sponsored IRA must be in writing and created for exclusive benefit of employees and beneficiaries. Contribution Limits ◦ $5,000 ◦Adjusted for inflation to next multiple of $500 Catch-up Provision ◦Participant must be at least 50 by the end of the year. ◦Additional $1,000 in years 2012 and beyond. Individual Retirement Account (IRA)
Tax Treatment Contributions are deductible ◦Reduced if employee or spouse is an active participant in a qualified retirement plan ◦Amount of reduction is based on adjusted gross income. For 2009 the reduction: married employees filing a joint return at $92,000 single $58,000 married filing separately $00. ◦Employee not active participant (but spouse is) reduction starts at $173,000 for 2012 (married filing joint return) ◦Taxability for deduction totally eliminated at $10,000 over the above limits ($20,000 for joint filers beginning in 2007) ◦Employer contributions included in income, but not subject to federal withholding up to the amount the employer reasonably believes the employee will deduct on their personal 1040 form; totally taxable for Social Security, Medicare and FUTA Individual Retirement Account (IRA)
Contributions Established by Taxpayer Relief Act of 1997 Contributions are Taxable ◦No phase-outs because of active plan participant status, but amount allowed is reduced by contributions by the individual to other IRAs for that year For 2012, deductions begin to be phased out once individual’s adjusted gross income exceeds ◦$173,000 for joint filers ◦$110,000 for single filer For 2012, contributions are completely phased out at ◦$183,000 for joint filers ◦$125,000 for single filers. Roth Individual Retirement Account (IRA)
Employers can allow direct deposit of contributions ◦No contribution allowed by employer ◦Participation Voluntary ◦No endorsement by employer allowed ◦IRA sponsors publicize direct to employees ◦Contributions are remitted to IRA sponsor ◦Employer does not receive any kind or consideration. Distributions ◦Distributions are not included in gross income If made no sooner than 5 years after first contribution and Made on or after age 59-1/2, death, disability, or used for a first time home purchase. Roth Individual Retirement Account (IRA)
Simplified Employee Pensions – 408(k) Commonly known as an SEP An IRA that meets requirements governing: ◦Employee participation ◦Non-discrimination in favor of highly compensated employees’ withdrawls ◦Written formula to determine employer contributions Employer must make contributions ◦On behalf of all employees age 21 and over ◦Employees that worked for employer at least 3 of the last 5 years ◦Employees that earned at least $550. in 2012 Contribution must be made based on the same compensation- related formula for all employees up to $250,000. in compensation in 2012 W-2 Reporting ◦Not in box 1; In box 12, code “F”; check box 13 for “Retirement Plan”
Savings Incentive Match Plans for Employees of Small Employers (SIMPLE Plans) Contribution Limits and Requirements Employee can elect to defer $11,500 in 2012 Deferral amount must be expressed as a percentage of compensation “Catch up” contributions allowed for employees age 50 or older by end of plan year Employer must match employee’s elective deferral dollar-for-dollar up to 3% ◦Employer may make a nonelective contribution of 2% of each eligible employees’ compensation – employee must have at least $5,000. in compensation for that year and employee doesn’t have to defer any salary All employee elective deferrals and employer matching and nonelective contributions must be fully vested and nonforfeitable when made Employees have between Nov 2 and Dec 31 to participate in SIMPLE plan for next year or modify their elective deferral amounts
Savings Incentive Match Plans for Employees of Small Employers (SIMPLE Plans) SIMPLE IRA plan can include an automatic contribution arrangement if employee does not make an affirmative election Tax treatment ◦Not subject to federal withholding ◦Subject to Social Security, Medicare, and FUTA taxes ◦Employer matching and nonelective contributions are not subject to taxation W-2 Reporting Requirements ◦Deferrals not included in box 1 ◦Deferrals reported in box 12, Code “S” ◦Check box 13 for “Retirement Plan”
Defined Contribution Plan Stock bonus plan or combined stock bonus and money plan designed to invest primarily in the employer’s stock. Same general requirements as IRC 401(a) Tax Treatment Employer contributions are not wages and not subject to federal income tax withholding, Social Security, Medicare, or FUTA. ◦2012 Limit: lesser of $50,000 or 100% of compensation Employee Stock Ownership (ESOP)
American Jobs Creation Act of 2004 created IRC Section 409A which places significant restrictions on nonqualified deferred compensation plans Tightened rules governing inclusion of deferrals in gross income for federal income tax purposes Expanded the types of compensation plans and arrangements Employee has a legally binding right during a taxable year to compensation that has not been actually or constructively received and included in gross income and is payable to him or her in a later year Emergency Economic Stabilization Act of 2008 created IRC Section 457A which provides that any compensation deferred under a nonqualified deferred compensation plan of a nonqualified entity is includible in the employee’s gross income where there is no substantial risk of forfeiture of the right to such compensation Non Qualified Deferred Comp Plan
Employer plan to defer compensation to a later date which may or may not coincide with retirement. Plans can be either funded or unfunded ◦If unfunded, employee has only employer’s promise of money ◦If funded, contributions & earnings based on them are wages subject to federal income tax withholding when the employee’s interest is vested The majority of these plans are unfunded ◦ Funds are not protected from employer’s creditors or successors If a nonqualified deferred compensation plan does not conform to the restrictions of IRC Section 409A, all amounts deferred and other vested amounts, plus earnings on those amounts, are subject to federal income tax and an additional tax of 20% of the amount included in income. In addition, interest will be charged on underpaid taxes, calculated at the IRS underpayment rate plus 1% Non Qualified Deferred Comp Plan
Tax Treatment Any deferrals or earnings included in income because of the new rules in Section 409A are subject to federal income tax withholding and should be treated as supplemental wages All amounts deferred under one or more nonqualified deferred compensation plan in a calendar year of more than $600 must be reported by the employer on Form W-2, whether or not the amounts are included in income for that year; report in Box 12, Code “Y” – Notice nullifies this requirement until further guidance is issued Amounts required to be included in income must be reported on Form W-2 in Box 1 and in Box 12, Code “Z”. Amount in Box 12 should include all amounts deferred under the plan for the taxable hear AND all preceding taxable years (plus earnings) that are currently includible in gross income under Section 409A
Reporting Requirements Amounts deferred into plan are reported in Box 12, code “Y” Such deferrals are reported in Box 11, if for prior years services Amounts distributed are reported in Box 1 only The amounts should be reported in Box 11, if there were no deferrals in the year of distribution Any deferrals/earnings included in income because of the new rules in 409A are subject to federal income tax withholding and taxed as supplemental wages Calculating the amount includible in income upon a failure to meet the requirements of Section 409A 1.Determine total amount deferred 2.Calculate portion of total amount deferred that is either subject to a substantial risk of forfeiture or has been included in income in a previous year 3.Subtract amount determined in step 2 from step 1 – excess is includible in income and subject to additional income taxes Non Qualified Deferred Comp Plan
Tax Treatments of Employer Contributions Doesn’t matter if plan is funded or unfunded Employer contributions & earnings are subject to Social Security, Medicare and FUTA taxes on the later of: ◦Date services are performed that form the basis for the contributions; OR ◦When there is no substantial risk of forfeiture of the employee’s interest in the funds Reporting Requirements Employer contributions to an unfunded nonqualified deferred compensation plan are not included in income Amounts deferred to a funded, secured plan are income if employee has no risk of losing the benefits; must be reported in Box 1 and Box 11
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