Payroll Reporting Issues for Government Entities

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Presentation by human resource professionals covering payroll reporting issues for governments, including: recent changes; common errors; compensation & worker misclassification; 1099 reporting issues; tax advantaged health plans; and,
taxability of fringe benefits

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  • Payroll Reporting Issues for Government Entities

    1. 1. Payroll Reporting Issuesfor Government Entities January 27, 2012
    2. 2. Certified Public Accountants & Business Advisors Overview of topics covered  Recent Changes  Common Errors  Compensation/Worker Misclassification  1099 Reporting Issues  Overview of Tax Advantaged Health Plans  Taxability of Fringe Benefits2 © 2012 Sikich LLP. All rights reserved.
    3. 3. Certified Public Accountants & Business Advisors Payroll Tax Cut Temporarily Extended into 2012 Employee paid social security taxes will remain at 4.2% through February 29, 2012. 2% savings for employees continue. Revised employment tax forms will be issued. © 2012 Sikich LLP. All rights reserved.
    4. 4. Certified Public Accountants & Business Advisors Temporary Payroll Tax Cut Continuation Act of 2011 The Act also provides for a “recapture” provision which applies to employees earning more than $18,350 in the first 2 months of 2012. Imposes an additional income tax on these higher- income employees in an amount equal to 2% of wages received during the two months. (The social security wage base for 2012 is $110,100 and $18,350 represents two months of the full year amount). Recapture tax will be paid by employee in 2013 when income tax return is filed. Additional information to be issued. © 2012 Sikich LLP. All rights reserved.
    5. 5. Certified Public Accountants & Business Advisors New Limits for 2012 Mileage rates for business travel • 2011 $.51 through 6/30/11 • 2011 $.555 7/1/11 through 12/31/11 • 2012 $.555 (no change from 2011 rate) © 2012 Sikich LLP. All rights reserved.
    6. 6. Certified Public Accountants & Business Advisors New Limits for 2012 (continued) 401(k) /403(b)/457(b) Plans • 2011 $16,500 • 2012 $17,000 Catch up amounts • 2011 $5,500 • 2012 $5,500 Eligible Compensation • 2011 $245,000 • 2012 $250,000 © 2012 Sikich LLP. All rights reserved.
    7. 7. Certified Public Accountants & Business Advisors New Limits for 2012 (continued) Simple Plans • 2011 $11,500 • 2012 $11,500 Catch up amounts (simple) • 2011 $2,500 • 2012 $2,500 © 2012 Sikich LLP. All rights reserved.
    8. 8. Certified Public Accountants & Business Advisors Reporting and Taxability of Health Insurance  In order to exclude premiums from income the covered participant must be an employee or meet the definition of a dependent. • Domestic partners and civil unions do NOT currently qualify as dependents • Imputed income must be calculated on any employer provided premiums • Not eligible for pre-tax savings under Section 125 Plan if not a dependent8 © 2012 Sikich LLP. All rights reserved.
    9. 9. Certified Public Accountants & Business Advisors Taxation of Young Adult Dependent Coverage  Health Care Reform Act made change effective 3/30/10 that coverage to adult children who as of the end of the year have not turned age 27 will NOT result in imputed income to the employee.  Prior to 3/30/10 imputed income should be determined.9 © 2012 Sikich LLP. All rights reserved.
    10. 10. Certified Public Accountants & Business Advisors Health Insurance coverage for Retirees  If coverage is provided to all retirees without an option to receive cash then coverage is not taxable  If employee could have received cash in lieu of the coverage then the coverage is taxable all in the year when the amount was available to them. The future years coverage will all be taxed earlier than when received. Revenue Ruling 75-53910 © 2012 Sikich LLP. All rights reserved.
    11. 11. Certified Public Accountants & Business Advisors How to calculate the premium includable in gross income?  No formal IRS guidance is available  PLR 9603011 and PLR 200339001 – provide guidance for domestic partners and civil unions (non-dependents)  Both conclude “excess of the fair market value of the group medical coverage provided over the amount paid by the employee for such coverage is includible in gross income of the employee”11 © 2012 Sikich LLP. All rights reserved.
    12. 12. Certified Public Accountants & Business Advisors How to calculate the premium includable in gross income?  Under Reg. Sec. 1.61-21(b)(2) fair market value is determined on the basis of the amount that an individual would have to pay for the particular fringe benefit in an arm’s-length transaction – the fair market value of the group medical coverage12 © 2012 Sikich LLP. All rights reserved.
    13. 13. Certified Public Accountants & Business Advisors How do you determine fair market value?  Any reasonable method for calculating fair market value may be used: • Actuarial computation by insurance provider • Greater of increase in incremental cost • COBRA premium for self-only coverage13 © 2012 Sikich LLP. All rights reserved.
    14. 14. Certified Public Accountants & Business Advisors Health Insurance Reporting on Form W-2  Health Care Reform law added a requirement to report aggregate cost of employer provided health coverage.  Coverage does NOT become taxable, just for disclosure purposes and most likely to prepare for future years when excise taxes and mandatory coverage become effective.  IRS recently announced that this will NOT be required for 2011 to allow employers more time to prepare and receive additional IRS guidance.  The 2011 W-2 instructions list a code DD for Box 12 to report for those employers who elect to provide early.14 © 2012 Sikich LLP. All rights reserved.
    15. 15. Certified Public Accountants & Business Advisors Health Insurance Reporting on Form W-2 Transition Rules: • IRS announced that this will not be required until 2012 (reported in 2013) for large employers (250 or more employees) • For small employers (less than 250 employees) until 2013 (2014 reporting).15 © 2012 Sikich LLP. All rights reserved.
    16. 16. Certified Public Accountants & Business Advisors Health Insurance Reporting on Form W-2• Additional Resources: • See Notices 2011-28 and 2012-9 for most recent guidance • FAQ on IRS website under the ACA pages of www.irs.gov or link: http://www.irs.gov/newsroom/article/0,,id=23 • IRS presented webinar on topic see: http://www.irsvideos.gov/Webinars © 2012 Sikich LLP. All rights reserved.
    17. 17. Certified Public Accountants & Business Advisors Nondiscrimination Rules for Health Plans Health Care Reform Act extended nondiscrimination rules to fully insured plans, previously only applied to self-insured plans. If health plan does not retain grandfathered status need to ensure that employer provided coverage amounts do not discriminate in favor of higher paid employed. Until guidance is issued IRS will not assess penalties. Watch for further developments in this area. © 2012 Sikich LLP. All rights reserved.
    18. 18. Certified Public Accountants & Business Advisors IRS Audit Activities  IRS is devoting a significant amount of its examination resources to the Employment Tax National Research Program (ETNRP).  ETNRP is a three year program to identify sources of under reported income and employment taxes or non- filing of required returns.18 © 2012 Sikich LLP. All rights reserved.
    19. 19. Certified Public Accountants & Business Advisors ETNRP  IRS will examine 500 governmental entities selected at random.  First 90 entities were reviewed in 2010 and results should be issued shortly.  Second 180 entities were selected for review in 2011.  Additional 230 entities will be selected in19 2012. © 2012 Sikich LLP. All rights reserved.
    20. 20. Certified Public Accountants & Business Advisors ETNRP (Cont.d)  Includes review of: • Compliance with information return & reporting requirements • Compliance with worker classification (i.e. 1099 or W-2 reporting) • Compliance with provisions of public entity Section 218 agreements • Compliance with taxability of fringe benefits20 © 2012 Sikich LLP. All rights reserved.
    21. 21. Certified Public Accountants & Business AdvisorsCommon Errors Noted by IRS with Payroll Reporting Totals shown on Forms 941 do not reconcile with totals on Forms W-2 and W-3, or between these forms and accounting records. Forms W-9 and W-4 are not being used or are not being updated when necessary. © 2012 Sikich LLP. All rights reserved.
    22. 22. Certified Public Accountants & Business AdvisorsCommon Errors Noted by IRS with Payroll Reporting (cont.d) Failure to backup withhold on payments to vendors when required. Failure to correctly complete or file Forms 1099. Failure to apply accountable plan rules to reimbursements and allowances. © 2012 Sikich LLP. All rights reserved.
    23. 23. Certified Public Accountants & Business AdvisorsCommon Errors Noted by IRS with Payroll Reporting (cont.d) Incorrect or missing employment tax deposits. Failure to follow electronic filing requirements. Treatment of certain groups of workers as independent contractors, rather than as employees. © 2012 Sikich LLP. All rights reserved.
    24. 24. Certified Public Accountants & Business Advisors Common Errors Noted by IRS with Payroll Reporting (cont.d) Failure to include taxable noncash benefits in employee wages. Failure to correctly apply withholding rules to election workers and public officials. For public employers IRS now has self assessment checklist available on their website. © 2012 Sikich LLP. All rights reserved.
    25. 25. Certified Public Accountants & Business AdvisorsPerform Year-end Reconciliation Before Filing W-2’s and 941’s  The SSA will compare the 941 gross wage totals to Form W-3 totals for: • Social Security and Medicare wages • Income tax withholding • Advanced earned income credit  Reconcile before you file to avoid notices © 2012 Sikich LLP. All rights reserved.
    26. 26. Certified Public Accountants & Business AdvisorsPerform Year-end Reconciliation Before Filing W-2’s and 941’s Generally your wages should reconcile as follows:  Box 1 wages on Form W-2  Plus employer pick-up amounts (govt employers)  Plus: 401(k), 403(b) and 457 contributions  Should equal Medicare and/or Social Security wages (W-2 boxes 3 and 5) © 2012 Sikich LLP. All rights reserved.
    27. 27. Certified Public Accountants & Business AdvisorsPerform Year-end Reconciliation Before Filing W-2’s and 941’s  If wages on Forms W-2, W-3 and 941 do not match, you should determine that the reasons are valid and retain documentation in the event you are questioned by the IRS or SSA. © 2012 Sikich LLP. All rights reserved.
    28. 28. Certified Public Accountants & Business Advisors Form 1099-Misc Reporting  Originally included in Health Care Reform Act to include corporations in the requirements for 1099-Misc reporting  New rules have been repealed so corporations continue to be exempt from 1099-misc filing unless an exception applies such as: • Attorneys • Medical expenses28 © 2012 Sikich LLP. All rights reserved.
    29. 29. Certified Public Accountants & Business Advisors 1099-Misc Issues  Make sure to obtain W-9 for all payments for services to ensure you have documentation of type of organization  Upon audit IRS will want to review and can impose penalties for failure to file 1099-Misc and require back up withholding at a rate of 28%29 © 2012 Sikich LLP. All rights reserved.
    30. 30. Certified Public Accountants & Business Advisors 1099-Misc Changes-1099-K Filing  2011 1099-Misc instructions state that payments made with a credit card must now be reported on 1099-K by the payment settlement entity.  Payments reported by the settlement entity are NOT required to be reported on form 1099-Misc reported by the payor30 © 2012 Sikich LLP. All rights reserved.
    31. 31. Certified Public Accountants & Business Advisors Other 1099 topics  Grant Payments • Payments > $600 should be on 1099-G • Taxable unless excluded in federal legislation • Welfare type payments are often excluded • Inform recipient of 1099-G reporting upon issuance of grant  Elected and Appointed Officials • Generally should be treated as employees not paid on Form 1099 (per IRS Public Outreach guide page 6)31 © 2012 Sikich LLP. All rights reserved.
    32. 32. Certified Public Accountants & Business Advisors Information return penalties in 2011  The Small Business Jobs Protection Act (SBJA) substantially increases the penalties for failure to file correct and timely information returns and payee statements.  For example, previously penalty of $50/payee statement up to maximum of $100,000. New rules increase maximum to $1,500,000 plus inflationary adjustments.  Increased employment tax audits coupled with larger penalties create the “perfect storm” for employment tax audit assessments.32 © 2012 Sikich LLP. All rights reserved.
    33. 33. Certified Public Accountants & Business Advisors TIPRA 3% Withholding Repealed  The Tax Increase Prevention and Reconciliation Act of 2005 (TIPRA) added a provision to required entities making payments to a person providing property or services to deduct and withhold 3% tax from the payment. Set to become effective in 2013.  The Job Creation Act of 2011 repealed the TIPRA 3% withholding requirement.33 © 2012 Sikich LLP. All rights reserved.
    34. 34. Certified Public Accountants & Business AdvisorsPayroll and Compensation Under Fire: What you Need to Know  Agencies (DOL, IRS) continue to focus on: • Employee Classification • Overtime Payment • Independent Contractors • Interns © 2012 Sikich LLP. All rights reserved.
    35. 35. Certified Public Accountants & Business Advisors FLSA Compliance DOL has added new investigators for wage and hour DOL is expected to be “very active” DOL collections of back wages are up dramatically over the past decade Class action cases have increased four fold since 1997 © 2012 Sikich LLP. All rights reserved.
    36. 36. Certified Public Accountants & Business Advisors FLSA Compliance At least 75% of employers are not in compliance with the Fair Labor Standards Act – might actually be closer to 95% © 2012 Sikich LLP. All rights reserved.
    37. 37. Certified Public Accountants & Business Advisors Employee Misclassification U.S. Government Accountability Office reports there are at least 10 million workers in the U.S. who are classified as independent contractors Labor Department estimates up to 30% of companies nationwide have misclassified employees © 2012 Sikich LLP. All rights reserved.
    38. 38. Certified Public Accountants & Business Advisors Employee Misclassification Employers are liable for: • Payment of back taxes • Unpaid Social Security/Medicare contributions • Unpaid unemployment insurance • Unpaid workers compensation premiums • Penalties and interest © 2012 Sikich LLP. All rights reserved.
    39. 39. Certified Public Accountants & Business Advisors State Level Initiatives 11 states have signed on with the DOL • Goal is to prevent, detect and remedy employee misclassification • Illinois is one of the 11 states © 2012 Sikich LLP. All rights reserved.
    40. 40. Certified Public Accountants & Business Advisors DOL/IRS to Coordinate on Employee Misclassification IRS and DOL sign Memorandum of Understanding Result = increased number of employment tax audits = boost in compliance and increase in revenues © 2012 Sikich LLP. All rights reserved.
    41. 41. Certified Public Accountants & Business Advisors IRS Voluntary Classification Settlement Program Initiative allows businesses to become compliant with worker classification requirements at significantly reduced penalty rates © 2012 Sikich LLP. All rights reserved.
    42. 42. Certified Public Accountants & Business Advisors IRS Voluntary Classification Settlement Program – Eligibility Employer must have consistently treated a group of workers as non-employees in the past and filed appropriate 1099 forms for those workers during past 3 years No current dispute between employer and IRS or applicable state agency Going forward, employers must agree to treat as employees any workers they previously misclassified as independent contractors © 2012 Sikich LLP. All rights reserved.
    43. 43. Certified Public Accountants & Business Advisors IRS Voluntary Classification Settlement Program - Benefits Employer will pay only 10% of employment tax liability Employer is not required to pay interest or penalties Employer will not be subject to employment tax audit regarding worker classification issues © 2012 Sikich LLP. All rights reserved.
    44. 44. Certified Public Accountants & Business AdvisorsIRS Voluntary Classification Settlement Program – Risks of not Participating IRS can force non-compliant employers to pay the appropriate employment taxes in full for several years Significant interest and monetary penalties © 2012 Sikich LLP. All rights reserved.
    45. 45. Certified Public Accountants & Business Advisors Participation in IRS Voluntary Settlement Program Submit an application (Form 8952) to the IRS at least 60 days from the date on which employer wants to begin treating misclassified workers as employees © 2012 Sikich LLP. All rights reserved.
    46. 46. Certified Public Accountants & Business Advisors IRS Webinar On February 15, 2012 1pm CST IRS is hosting a webinar on worker classification Register at www.irs.gov and go to the governmental entities page © 2012 Sikich LLP. All rights reserved.
    47. 47. Certified Public Accountants & Business Advisors Why you Need to be Concerned Fair Labor Standards Act Illinois Minimum Wage Act Illinois Wage Payment and Collection Act Immigration Regulation and Control Act Lilly Ledbetter Fair Pay Act © 2012 Sikich LLP. All rights reserved.
    48. 48. Certified Public Accountants & Business Advisors Exempt vs. Non-Exempt Hourly pay equals non-exempt Responsibilities determine status Title/payment type don’t determine status Duties test • Relative importance of exempt duties • Amount of time spent performing exempt work • Relative freedom from direct supervision © 2012 Sikich LLP. All rights reserved.
    49. 49. Certified Public Accountants & Business Advisors Independent Contractors Tests for Independent contractors include: • Behavioral control • Financial control • Type of relationship © 2012 Sikich LLP. All rights reserved.
    50. 50. Certified Public Accountants & Business Advisors Independent Contractors Make decisions re: how work is done Not required to abide by organization’s policies/procedures Can hire/fire their own employees Do not work on the organization’s premises; make own schedules Use own tools/equipment/materials Engaged by many firms Cannot be disciplined or dismissed Paid per contractual arrangement © 2012 Sikich LLP. All rights reserved.
    51. 51. Certified Public Accountants & Business Advisors Unpaid Interns Must be a structured educational experience For the benefit of the intern No promise of a job © 2012 Sikich LLP. All rights reserved.
    52. 52. Certified Public Accountants & Business Advisors Records Retention At least three years • Payroll records • Collective bargaining agreements • Sales/purchase records At least two years • Wage computation records Records must be available for inspection © 2012 Sikich LLP. All rights reserved.
    53. 53. Certified Public Accountants & Business Advisors Four Most Common Mistakes Failure to have a good system in place Failure to properly record hours worked Falling down on technical issues Failure to calculate overtime properly © 2012 Sikich LLP. All rights reserved.
    54. 54. Certified Public Accountants & Business Advisors To Do List Ensure you are following specific record keeping requirements for non-exempt employees Have job descriptions for all positions for classification purposes Have a process for classifying positions and follow it consistently Maintain accurate pay records Watch for improperly docked pay © 2012 Sikich LLP. All rights reserved.
    55. 55. Certified Public Accountants & Business Advisors To Do List Make sure you are paying overtime correctly Don’t allow non-exempt employees to work through lunch periods Maintain all time records for NE employees Have safe harbor policies in place © 2012 Sikich LLP. All rights reserved.
    56. 56. Certified Public Accountants & Business Advisors Tax Advantaged Health Plan Options  Flexible Spending Accounts-FSA’s  Health Reimbursement Accounts-HRA’s  Health Savings Accounts-HSA’s56 © 2012 Sikich LLP. All rights reserved.
    57. 57. Certified Public Accountants & Business Advisors Cafeteria Plans-FSA’s  Pay for certain benefits pre-tax-typically EE paid • Before FICA and Medicare • Before Federal and State taxes  Saves employer matching FICA taxes!  Not includible in compensation for IMRF (unless resolution adopted)  Benefits • Health, dental and other insurance premiums • Un-reimbursed medical expenses • Dependent care expenses57 © 2012 Sikich LLP. All rights reserved.
    58. 58. Certified Public Accountants & Business Advisors Cafeteria plan requirements  Must have WRITTEN PLAN DOCUMENT  Plan may need to be updated if amendments have not been made in several years.  IMRF amendment required to include contributions as IMRF eligible wages58 © 2012 Sikich LLP. All rights reserved.
    59. 59. Certified Public Accountants & Business Advisors Cafeteria plan changes  Effective January 1, 2011 • Over-the-counter drugs are no longer qualified for purposes of the distributions/reimbursements under HSA’s, health FSA’s, and HRA’s, EXCEPT for prescription medicines and insulin. The new rules establish a more detailed and rigorous standard to qualify as a cafeteria plan.  Effective January 1, 2013 • Contributions in a health FSA is limited to $2,500 per year, indexed for inflation after 2013.59 © 2012 Sikich LLP. All rights reserved.
    60. 60. Certified Public Accountants & Business Advisors Health Reimbursement Accounts-HRA’s  Health Reimbursement Accounts-HRA’s • Employer Funded-NO EMPLOYEE CONTRIBUTIONS • Can be funded or unfunded • Can choose to carryover unused amounts to future years • Distributions are not taxable if used for qualifying medical expenses60 © 2012 Sikich LLP. All rights reserved.
    61. 61. Certified Public Accountants & Business Advisors Health Savings Accounts  Health Savings Accounts-HSA’s • Employer OR Employee Funded • Must be funded • Unused amounts are carried over since it if funded in individual accounts similar to IRA’s but for medical expenses • Distributions are not taxable if used for qualifying medical expenses61 © 2012 Sikich LLP. All rights reserved.
    62. 62. Certified Public Accountants & Business Advisors HSA’s (Cont.d)  Must have high deductible health insurance plan • Minimum deductible of $1,200 for 2012 for individual with out-of-pocket expenses of no more than $6,050 or $2,400 family deductible with total annual out-of- pocket expenses of no more than $12,100  Must not be covered by any other plans • Includes HRA and FSA with limited exceptions62 © 2012 Sikich LLP. All rights reserved.
    63. 63. Certified Public Accountants & Business Advisors HSA’s  Health Savings Accounts-HSA’s (Cont.d) • Allowable contributions up to $3,100 for 2012 or $6,250 for family regardless of policy deductible  Catch up contributions allowed for individuals age 55 or older-$1,000 for 201263 © 2012 Sikich LLP. All rights reserved.
    64. 64. Certified Public Accountants & Business Advisors W-2 Reporting  Flexible Spending Accounts-FSA’s • Insurance premiums: not required to report on W-2 exclude from all boxes on W-2 (use code DD if electing to report early) • Medical expenses: same as insurance premiums • Dependent Care: exclude from all taxable items on W-2, however must also include in Box 10- dependent care benefits o IRS uses this box to match up to amounts reported on Form 2441 on Form 104064 © 2012 Sikich LLP. All rights reserved.
    65. 65. Certified Public Accountants & Business Advisors W-2 Reporting  Health Reimbursement Accounts-HRA’s • These are employer contributions and therefore not reportable on Form W-2 • Think of as other employer paid insurance premiums65 © 2012 Sikich LLP. All rights reserved.
    66. 66. Certified Public Accountants & Business Advisors W-2 Reporting  Health Savings Accounts-HSA’s • Employee contributions o Employee contributions are excluded from taxable income box 1 and state income taxable wages o If the employer has a cafeteria plan which includes these benefits then the employee contributions are also exempt from social security and Medicare. o Report employee contributions in box 12 with a code W if paid through a cafeteria plan. o Employees may also contribute on their own and report contributions on their 1040 to receive tax benefit.66 © 2012 Sikich LLP. All rights reserved.
    67. 67. Certified Public Accountants & Business Advisors W-2 Reporting  Health Savings Accounts-HSA’s • Employer contributions o Employer contributions are excluded from all boxes on W-2 o Report employer contributions in box 12 with a code W. o IRS uses box 12 code W to calculate total allowable contributions as reported on the individual’s 104067 © 2012 Sikich LLP. All rights reserved.
    68. 68. Certified Public Accountants & Business Advisors Reporting of Fringe Benefits  Generally all amounts paid to employees are taxable • Federal and state income taxes • Employment taxes  Unless excludable under IRS code  Cash payments are taxable regardless of amount.68 © 2012 Sikich LLP. All rights reserved.
    69. 69. Certified Public Accountants & Business Advisors Checklist of Non-payroll Compensation  Advances  Flat rate auto allowances  Unsubstantiated business expense or in excess of government approved limits  Group term life insurance >$50,000  Disability pay-taxable portion  Reimbursed employee moving expenses69 © 2012 Sikich LLP. All rights reserved.
    70. 70. Certified Public Accountants & Business Advisors Checklist of Non-payroll Compensation  Personal use of company vehicle  Cash achievement awards  Compensation bonuses/Holiday bonuses  Employer paid dues for country club or use of athletic facilities or golf course • No additional cost services rules  Employer paid supplements to military pay  Employees’ taxes paid by employer70 © 2012 Sikich LLP. All rights reserved.
    71. 71. Certified Public Accountants & Business Advisors Checklist of Non-payroll Compensation (cont.d)  Seasonal tickets to entertainment or sporting events for personal use.  Uniform allowances for uniforms that are (a) not required as a condition of employment or (b) street wearable.  Educational assistance over $5,250 unless qualifies as working condition fringe benefit.71 © 2012 Sikich LLP. All rights reserved.
    72. 72. Certified Public Accountants & Business Advisors Fringe Benefit Exclusions  De Minimis Fringe • Small value • Any cash paid is NOT de minimis and therefore taxable to the employee  Qualified Transportation Fringe • Pre-tax deductions available for: Commuter transportation, transit passes, and qualified parking  Qualified Employee Discount  Working condition Fringe • Substantiated expenses • Use of property or service related to employer’s business72  No Additional Cost Service © 2012 Sikich LLP. All rights reserved.
    73. 73. Certified Public Accountants & Business Advisors Examples of Working Condition Fringes  Job-related magazine subscriptions  Professional dues  Job-related education  Business travel and entertainment  Business use of company vehicle  Employer provided retirement advice73 © 2012 Sikich LLP. All rights reserved.
    74. 74. Certified Public Accountants & Business Advisors No Additional Cost Services  IRS newsletter from 2004 addresses issues relating to taxation of employer provided: • Golf Courses • Athletic Centers • Park District Courses • Discounts on merchandise74 © 2012 Sikich LLP. All rights reserved.
    75. 75. Certified Public Accountants & Business Advisors No Additional Cost Services  Employee must be in the same line of business as the “free service”  In addition to there being no additional cost, there also must be no foregone revenue.  Employer should have policy to prevent any foregone revenue.75 © 2012 Sikich LLP. All rights reserved.
    76. 76. Certified Public Accountants & Business Advisors Employer Provided Vehicles  Personal use is taxable unless de minimis • Daily commuting is NOT de minimis  Exception for qualified non-personal use vehicle • Defined in IRC Regulation 1.274-5T-Some examples: o Clearly marked police and fire vehicles o Unmarked vehicles used by law enforcement officers. Officers must be authorized to carry a firearm, execute search warrants and make arrests. • IRS FAQ on website states “ A police or fire vehicle is clearly marked if it has insignia or words which make it clear that it is a police or fire vehicle. A marking on a license plate is not a clear marking for this purpose.”76 © 2012 Sikich LLP. All rights reserved.
    77. 77. Certified Public Accountants & Business Advisors Employer Provided Vehicles  Final regulation issued 5/19/10 • Clearly marked police or fire officer vehicles are treated as qualified non-personal use vehicles if the following conditions apply: o The employee must be on call at all times o The employee must be required to use the vehicle for commuting o The employer must prohibit personal use (other than commuting) for travel outside the officer’s or firefighter’s jurisdiction.77 © 2012 Sikich LLP. All rights reserved.
    78. 78. Certified Public Accountants & Business Advisors Employer Provided Vehicles  Final regulation issued 5/19/10: • Adds “public safety officer vehicle” to the qualified non-personal use vehicle exclusion. • A clearly marked public safety officer vehicle is a vehicle owned or leased by a governmental unit or any agency or instrumentality that is required to be used for commuting by a public safety officer. • A public safety vehicle is “clearly marked” if, through painted insignia or words, it is readily apparent that the vehicle is a public safety officer vehicle.78 © 2012 Sikich LLP. All rights reserved.
    79. 79. Certified Public Accountants & Business Advisors Employer Provided Vehicles  Final regulation issued 5/19/10: • A public safety officer is an individual serving a public agency in an official capacity, with or without compensation, as a: o Law enforcement officer, with power of arrest, authority to carry firearms, and execute search warrants. o Firefighter o Chaplain or o Member of rescue squad or ambulance crew.79 © 2012 Sikich LLP. All rights reserved.
    80. 80. Certified Public Accountants & Business Advisors Employer Provided Vehicles  Public Safety Officer (cont.d) • Any federal, state or local government public safety officer who meets the on-call and commuting requirements above, and uses a clearly-marked government owned or leased vehicle in the course of his or her duties, is excepted from the substantiation requirements.80 © 2012 Sikich LLP. All rights reserved.
    81. 81. Certified Public Accountants & Business Advisors Employer Provided Vehicles  Three methods available to calculate personal use (IRS Publication 15-B, page 24 or Public Outreach guide page 8 & 9): • Automobile lease value • Commuting rule • Cents-per-mile rule81 © 2012 Sikich LLP. All rights reserved.
    82. 82. Certified Public Accountants & Business Advisors Car Allowances  Taxable unless accountable plan used  Accountable plan requires periodic reporting of expenses • Standard mileage rate or • Actual vehicle expenses  Allowance> actual expenses is either taxable or must be returned to employer82 © 2012 Sikich LLP. All rights reserved.
    83. 83. Certified Public Accountants & Business Advisors Employee Cell Phones  IRS recently announced that if cell phones are provided to employees for non compensatory business reasons it will not be taxable to the employee and detailed records no longer need to be maintained.  Examples of substantial business reasons: • Need to contact employee at all times for work-related emergencies • Requirement that the employee be available to speak with clients at times when the employee is away from the office. • Need to speak with clients located in other time zones at times outside the employee’s normal work day.  See IRS Notice 2011-7283 © 2012 Sikich LLP. All rights reserved.
    84. 84. Certified Public Accountants & Business Advisors Uniforms and Work Clothes  Should be under an accountable plan  Clothing must be worn as a condition of employment.  Those clothes are not suitable for everyday wear.84 © 2012 Sikich LLP. All rights reserved.
    85. 85. Certified Public Accountants & Business Advisors Uniforms and Work Clothes  Examples who may deduct cost: delivery workers, firefighters, health care workers, law enforcement officers, letter carriers, professional athletes, and transportation workers.  Clothing worn by plain clothes officers would not be deductible even if a result of a union negotiated contract.85 © 2012 Sikich LLP. All rights reserved.
    86. 86. Certified Public Accountants & Business Advisors Uniforms and Work Clothes  Protective clothing: An employee can deduct the cost of protective clothing required in his/her work such as safety shoes or boots, safety glasses, hard hats, and work gloves.86 © 2012 Sikich LLP. All rights reserved.
    87. 87. Certified Public Accountants & Business Advisors Educational Programs  Job-related educational expenses are tax free to employee if: • Required by employer or law to maintain current job skills • Maintains or improves skills required for present work  Not tax-free if: • Education is needed to meet minimum job requirements • Education qualifies employee for a new trade or business87 © 2012 Sikich LLP. All rights reserved.
    88. 88. Certified Public Accountants & Business Advisors Educational Assistance Programs  Provides for tax free educational assistance up to $5,250/year.  Includes graduate courses.  Must have written plan document.  Must offer plan on nondiscriminatory basis once written guidelines are established in document.88 © 2012 Sikich LLP. All rights reserved.
    89. 89. Certified Public Accountants & Business Advisors Group-Term Life Insurance  Can exclude from income the cost up to $50,000 of group-term life insurance  IRS determined cost for coverage in excess of $50,000 is includable as wages  IRS Pub 15-B includes the table to determine taxable income  Not subject to income tax withholding  Is subject to FICA and Medicare taxes89 © 2012 Sikich LLP. All rights reserved.
    90. 90. Certified Public Accountants & Business Advisors Taxability of Worker’s Compensation Benefits  Paid under worker’s comp law of state • Excludable from income, Social Security & Medicare taxes  Paid “in the nature of” Worker’s Compensation Act • May be subject to employment taxes for the first 6 months • IRS Pub 15-A/IRS Federal State Guide Pub 96390 © 2012 Sikich LLP. All rights reserved.
    91. 91. Certified Public Accountants & Business Advisors Taxability of Worker’s Compensation Benefits  Disability retirement payments not in the line of duty are subject to the rules for federal income tax withholding from pension and annuities  Payments based on age of employee, length of service, or prior contributions are not payments in the nature of workers’ compensation.  These payments are reported on Form 1099-R.91 © 2012 Sikich LLP. All rights reserved.
    92. 92. Certified Public Accountants & Business Advisors Pick-Up Contribution Elections (Govt Employers) Generally amounts withheld from employee paychecks need to be after tax unless there is an IRS code section allowing pre-tax treatment For pension contributions, in order to be pre-tax the employer must elect to “pick-up” the contributions The IRS provides in Section 414(h)(2) pretax pension contributions if certain conditions are met © 2012 Sikich LLP. All rights reserved.
    93. 93. Certified Public Accountants & Business Advisors Pick-Up Contribution Elections In Revenue Ruling 2006-43 the IRS stated that in order for a contribution to a qualified plan to be treated as pick-up by the employer the following must occur: • The employer must take formal action to elect to pick-up the contribution and the action must apply prospectively and be evidenced in writing, i.e., in a resolution, ordinance or minutes of a meeting • The participant must not have the right to opt out of the “pick-up” or the right to receive the amounts directly in lieu of having them paid into the plan © 2012 Sikich LLP. All rights reserved.
    94. 94. Certified Public Accountants & Business Advisors Taxability of Pensions The taxability of the pension depends on the source of the funds being contributed to the Fund There are various types of contributions: • Employer contributions • Employee required contributions • Employee elected contributions for purchase of prior service credit © 2012 Sikich LLP. All rights reserved.
    95. 95. Certified Public Accountants & Business Advisors Taxability of Pensions Employer contributions-will be taxable to participant when pension received as employee did not pay tax on receipt of contribution Employee required contributions • If pick-up contribution made, contributions were made on a pretax basis so pension will be taxable upon receipt • If no pick-up contribution made a portion of the pension will not be taxable as recovery of after tax contributions © 2012 Sikich LLP. All rights reserved.
    96. 96. Certified Public Accountants & Business Advisors Taxability of Pensions Employee elected contributions for purchase of prior service credit • Revenue Ruling 2006-43 states that in order to qualify as a pick-up contribution the arrangement must “not permit a participating employee from and after the date of the “pick-up” to have cash or deferred election right (within the meaning of Section 1.401(k)-1(a)(3)) with respect to designated employee contributions. Thus, for example, participating employees must not be permitted to opt out of the “pick-up,” or to receive the contributed amounts directly instead of having them paid by the employing unit to the plan.” © 2012 Sikich LLP. All rights reserved.
    97. 97. Certified Public Accountants & Business Advisors Taxability of Pensions Employee elected contribution for purchase of prior service credit – source of funds: • Payroll deductions - Rev Ruling 2006-43 any payroll deductions made to purchase prior service credits should be treated on a POST tax basis and basis should be tracked as with other after tax contributions to the Fund • Rollover from a pretax account (such as IRA) - Contributions would be treated as pretax and amount taxable upon distribution © 2012 Sikich LLP. All rights reserved.
    98. 98. Certified Public Accountants & Business Advisors Taxability of Pensions Employee elected contribution for purchase of prior service credit – source of funds (cont.d): • Lump sum payment - treated as post tax payment and basis should be tracked and amount would not be taxable upon distribution © 2012 Sikich LLP. All rights reserved.
    99. 99. Certified Public Accountants & Business Advisors Useful References IRS website - www.irs.gov/govt IRS Public Outreach Guide IRS Pub 15-A-Employer’s Supplemental Tax Guide IRS Pub 15-B-Employer’s Guide to Fringe Benefits Taxable Fringe Benefit Guide-IRS website IRS Pub 963- Joint Publication with Social Security © 2012 Sikich LLP. All rights reserved.
    100. 100. Certified Public Accountants & Business Advisors Useful References www.dol.gov – Department of Labor Website www.state.il.us/agency/idol/ - Illinois Department of Labor © 2012 Sikich LLP. All rights reserved.
    101. 101. Get Up to Date Breaking HR News and Alerts on Twitter!Receive instant communications on:• HR Alerts• HR Hot Topics• Articles• Breaking NewsSo visit www.twitter.com/sikich_hr and start following us today!
    102. 102. Contact Information:Karen S. Sanchez, CPA, QPAPartner-in-ChargeHuman Resources and Employee Benefits1415 W Diehl Road, Suite 400Naperville, IL 60563Phone (630) 566-8519Email: ksanchez@sikich.com

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