Periodically Reevaluate Employee Business Expense Reimbursement Practices

April 5, 2017

Employers looking for cost-effective opportunities to sweeten the perceived value their compensation and fringe benefit packages periodically should re-examine their policies for reimbursement of employees for ordinary and necessary business expenses an employee incurs in connection with the performance of his duties, such as:

  • Required work clothes or uniforms not appropriate for everyday use.
  • Supplies and tools for use on the job.
  • Business use of a car.
  • Business meals and entertainment.
  • Business travel away from home.
  • Business use of a home.
  • Work-related education.

Businesses generally consider a wide range of factors when deciding what expenses to reimburse to employees.   In arriving at these decisions, however, many businesses overlook the opportunity to stretch the overall compensation dollars by reimbursing employees for business expenses in lieu of paying cash compensation to the employee but requiring the employee to use after tax dollars to pay business expenses not reimbursed by the employer.

While many employers believe “cash is king” when paying employees, paying employees more cash in lieu of reimbursing employees for business often increases the employment tax liability of the employer while also unwittingly diminishing the value of the cash compensation paid to the employee because of federal tax rules governing individual deductions a business expenses.

While the Internal Revenue Code and associated Internal Revenue Service regulations impose special rules for certain categories of employment, federal tax law generally allows businesses both:

  •  To deduct from the gross income of the business for purposes of determining its adjusted gross income those amounts the business pays as wages as well as amounts paid to reimburse an employee for ordinary and necessary business expenses expended by the employee in the performance of his duties and to exclude such amounts for calculating the employment tax liabilities of both the employer and the employee; and
  • In many, but not all instances, to exclude all or some of the reimbursement amount from the taxable wages of the employee for income tax and/or employment tax purposes.

The income and employment tax treatment of business expenses paid by an employee generally is much less favorable when an employee seeks to deduct or exclude xpenditures made for ordinary and necessary business expenses from taxable income.

While federal income tax rules generally allow businesses to deduct ordinary and business expenses directly from gross income to arrive at their taxable adjusted gross income, federal tax rules are more restrictive concerning the deduction of business expenses by employees for income tax purposes and provides no easy mechanism to claim credit for such amounts for employment tax purposes.

In general, the Internal Revenue Code generally only allows employees who otherwise have sufficient deductible expenses to itemize deductions to claim any business expenses as a deduction when calculating their federal income taxes. Depending on the income of the workforce and particularly in the case of lower income workers, the itemization  requirement effectively bars a large percentage of employees from any possibility of deducting business expenses incurred in the performance of their work.

Beyond the requirement to itemize, the Internal Revenue Code also imposes a second hurdle that further restricts the deductibility of business expenses when claimed by an employee versus a business.  Specifically, the Internal Revenue Code generally only allows an employee to deduct  business expenses paid by the employee to the extent those expenses exceed 2% of the employee’ adjusted gross income.  This means that even those employees who qualify to file itemize deductions cannot deduct the initial 2% of the ordinary and necessary business expenses the employee pays and connection of the performance of his job even though the Internal Revenue Code would allow the employer to deduct the full amount of amounts paid to reimburse the employee for those same expenses.

Since most employees understand that the purchasing power of any cash compensation they receive from the employer is reduced by the amount of any expenses that they pay but are not reimbursed for, considering reimbursing employees for expenses in lieu of paying the employee cash, then requiring the employee to pay those expenses out of taxable income.

Of course, when considering whether to pay or reimburse employee expenses, employers also should evaluate and verify that their planned treatment of an expenditure and its reimbursement otherwise complies with any union or other contracts, as well as any applicable federal and state occupational safety, wage and hour and other laws.

Regardless of whether the employer or the employee plans to claim a business expense for tax purposes, an employer should encourage its employees to keep, and if reimbursing the employee, submit good records for proof of income and expenses.  Employers reimbursing business expenses may wish to educate employees about both the tax and financial value of these reimbursement benefits as a part of the overall compensation package provided to employees.  Even where an employer does not reimburse its employees all or part of an otherwise deductible business expense, however, it also may want to share Internal Revenue Service resources like “IRS Publication 529, Miscellaneous Deductions,” and “Publication 463, Travel, Entertainment, Gift and Car Expenses” with employees to help educate employees about these tax rules and their opportunities and responsibilities.

About The Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: Erisa & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney and management consultant, author, public policy advocate and lecturer widely known for work, teachings and publications.

Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. She supports her clients both on a real-time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.

A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her thought leadership, experience and advocacy on these and other concerns by her service in the leadership of a broad range of other professional and civic organization including her involvement as the Vice Chair of the North Texas Healthcare Compliance Association; Executive Director of the Coalition on Responsible Health Policy and its PROJECT COPE: Coalition on Patient Empowerment; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children; former Gulf Coast TEGE Council Exempt Organization Coordinator; a founding Board Member and past President of the Alliance for Healthcare Excellence; former board member and Vice President of the Managed Care Association; past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; a member and advisor to the National Physicians’ Council for Healthcare Policy; current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee; current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section; Past Chair of the ABA Health Law Section Managed Care & Insurance Section; a current Defined Contribution Plan Committee Co-Chair, former Group Chair and Co-Chair of the ABA RPTE Section Employee Benefits Group; immediate past RPTE Representative to ABA Joint Committee on Employee Benefits Council Representative and current RPTE Representative to the ABA Health Law Coordinating Council; past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a former member of the Board of Directors, Treasurer, Member and Continuing Education Chair of the Southwest Benefits Association and others.

Ms. Stamer also is a highly popular lecturer, symposia chair and author, who publishes and speaks extensively on health and managed care industry, human resources, employment, employee benefits, compensation, and other regulatory and operational risk management. Examples of her many highly regarded publications on these matters include the “Texas Payday Law” Chapter of Texas Employment Law, as well as thousands of other publications, programs and workshops these and other concerns for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other symposia and publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications and speaks and conducts training for a broad range of professional organizations and for clients on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications. For additional information about Ms. Stamer, see CynthiaStamer.com or contact Ms. Stamer via email here or via telephone to (469) 767-8872.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc.™ resources at SolutionsLawPress.com

If you or someone else you know would like to receive future updates about developments on these and other concerns, please provide your current contact information and preferences including your preferred e-mail by creating or updating your profile here.

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as an admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein.

©2017 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press, Inc.™ All other rights reserved.


Businesses Should Verify Proper Tracking, Withholding & Reporting On Tips & Gratuities

February 5, 2015

Employers of  restaurant, hotel and other hospitality, cosmetology, and other tipped employees should take the publication by the Internal Revenue Service (IRS) of IRS Tax Tip 2015-13, What You Should Know if You Get Tipped at Work,  reminding employees about their responsibility to pay taxes on tips and other gratuities as a reminder of the need to implement proper procedures to accurately track the amount of, report as income, and withhold employee’s income and employment tax and report and pay the employer’s required employment taxes on taxable tips and gratuities as required by the Internal Revenue Code (Code) as well as a resource to aid the employer in educating workers about these requirements.

While the IRS’ publication of Tax Tip 2015-13 is targeted at workers receiving tipped compensation, its publication also signals employers of tipped workers of the IRS’ expectation that both employers and employees comply with the Code’s rules about taxation, reporting and withholding on tips and gratuities.

Under the Code, tips and other gratuities generally qualify as taxable wages under the Internal Revenue Code.  Consequently, employers of employees receiving tips, gratuities or other similar compensation generally are responsible for accurately tracking and reporting taxable tips and gratuities collected by their employees, including those amounts when calculating and collecting required income and employment taxes from employee’s pay, and calculating, reporting and paying employment taxes due with respect to those wages by the employer.  Employers caught failing to fulfill these responsibilities risk incurring penalties for failing to report and pay taxes on the tipped wages due from the employer as well as potentially becoming liable as a backup guarantor to pay income and employment taxes owed by the employee on unreported tipped wages that otherwise would have been due from the recipient employee.  To help mitigate these risks, employers of tipped employees should adopt and communicate clearly written policies and procedures requiring employees to report accurately all tips and gratuities, should monitor and enforce these policies and procedures, and should accurately report, pay employment taxes, and report and withhold income and the employee’s required share of employment taxes as required to comply with the Code.  See Publication 531, Tax Topic 761 – Tips – Withholding and Reporting; Form 4137, Social Security and Medicare Tax on Unreported Tip Income; Tip Recordkeeping and Reporting.To aid in this process, employers of tipped employees may want to review and require employee’s to keep a daily log of tips to report tips and gratuities to the employer based on the information provided by the IRS in Publication 1244, Employee’s Daily Record of Tips and Report to Employer, to record your tips. 

Businesses employing tipped employees also should use care to abstain from posting signs or other practices such as asking or otherwise encouraging customers to pay tips or other amounts in cash, which are or could be construed to seek to hide or obscure wages or other taxable receipts to avoid reporting or payment of taxes due under the Code.  Businesses also should use care to properly document, report and include tips and gratuities as required to comply with state unemployment compensation, disability, worker’s compensation, and other laws.

For Advice, Training & Other Resources

Should your business need legal advice about the taxability of or other requirements on tips, gratuities or other compensation,  assistance assessing or resolving potential past or existing compliance exposures, or monitoring and responding to these or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, an ABA Joint Committee On Employee Benefits Council representative, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, a Fellow in the American College of Employee Benefit Counsel, ABA, and State Bar of Texas, Ms. Stamer has more than 25 years’ experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health plans and insurers about ACA, and a wide range of other plan design, administration, data security and privacy and other compliance risk management policies.  Ms. Stamer also regularly represents clients and works with Congress and state legislatures, EBSA, IRS, EEOC, OCR and other HHS agencies, state insurance and other regulators, and others.   She also publishes and speaks extensively on health and other employee benefit plan and insurance, staffing and human resources, compensation and benefits, technology, public policy, privacy, regulatory and public policy and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update distributions here including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating or updating your profile here. For important information about this communication click here

NOTE:  This article is provided for educational purposes.  It is does not establish any attorney-client relationship nor provide or serve as a substitute for legal advice to any individual or organization.  Readers must engage properly qualified legal counsel to secure legal advice about the rules discussed in light of specific circumstances.

The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations.  The Regulations now require that either we (1) include the following disclaimer in most written Federal tax correspondence or (2) undertake significant due diligence that we have not performed (but can perform on request).

ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, or (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

©2014 Cynthia Marcotte Stamer. Limited, non-exclusive right to republished granted to Solutions Law Press, Inc. All other rights reserved.


Businesses Performing Income, Payroll Tax Duties For Employers Confirm Compliance With Updated IRS Procedures

December 14, 2013

Payroll, staffing employee leasing and other businesses that provide workers, staffing, payroll or other related services and the businesses that use these services should review their status to determine if the service provider might be considered to act as the “agent” of their client businesses for purposes of the withholding of income taxes from wages and/or the collection, reporting and payment of income and employment taxes on behalf of another employer business and if so, their responsibilities as agents for these purposes under Revenue Procedure 2013-39

The Internal Revenue Service (IRS) recently released Revenue Procedure 2013-39.  It describes and updates the procedure for requesting the IRS authorize a person to act as agent under section 3504 of the Internal Revenue Code (Code) and §31.3504-1 of the Employment Tax Regulations for purposes of Chapters 21, 22, 24, and 25 of the Code. Special instructions are also set forth for agents authorized to perform acts for purposes of Chapter 23 of the Code.

Chapters 21, 22, 23, 24, and 25 of the Code impose obligations on employers with regard to employment taxes. Specifically, Chapter 21 imposes Federal Insurance Contributions Act (FICA) tax, Chapter 22 imposes Railroad Retirement Tax Act (RRTA) tax, Chapter 23 imposes Federal Unemployment Tax Act (FUTA) tax.  Meanwhile, Chapter 24 imposes Collection of Income Tax at Source on Wages (income tax withholding), and Chapter 25 provides general provisions on employment taxes.

While these Code provisions generally impose these obligations on the common law employer of the employee with respect to whose wages the taxes arise, Section 3504 of the Code authorizes the Secretary to issue regulations to authorize a fiduciary, agent, or other person (“agent”) who has the control of, receives, has custody of, disposes of, or pays the wages of an employee or group of employees, employed by one or more employers, to perform certain specified acts required of employers. Under section 3504, all provisions of law (including penalties) applicable with respect to an employer are applicable to the agent and stay applicable to the common law employer. Accordingly, both the agent and employer are liable for the employment taxes and penalties associated with violations of these requirements.

In addition to updating the procedures generally applicable for parties to act as agents of employers for purposes of income and payroll taxes generally, the Revenue Procedure also sets forth special rules for agents dealing with home health workers as well as certain other special circumstances.

Businesses that could be considered to act as agents of another business should carefully review their status to determine whether their organization could be considered an agent for purposes of these rules either because they openly perform these responsibilities as a declared agent in accordance with current IRS procedures, or because the facts and circumstances under which their business acts as an employee leasing, staffing, professional employment organization (PEO) create a risk that workers treated as employed by the service provider could in fact be recharacterized on audit as common law employees of the customer.

Beyond the employer responsibilities under existing income and employment tax rules, proper classification also may have implications on the parties responsibilities under the employer shared responsibility rules of Code Section 4980H.  In Notice 2013-54, the IRS stated that the IRS might be willing to recognize health coverage provided by a staffing, employee leasing or other firm to a worker where the facts and circumstances reflect that the common law employer of the worker in fact is the customer of the staffing company as coverage provided by the common law employer.  In comments made at an American Bar Association Joint Tax and RPTE Meeting this Fall, however, IRS representatives also commented that they contemplated that this ability would be limited to situations where the staffing entity or other service provider registers as the agent of the customer which was the common law employer of the workers.  Businesses must await further clarifying guidance about whether and how the IRS ultimately implements these rules.

For Assistance or More Information

If you have questions or need help with these or employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer.

A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 25 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters.

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials about regulatory, investigatory or enforcement concerns.

Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, HR.com, Insurance Thought Leadership, Solutions Law Press, Inc. and other publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations. She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications. Her widely respected publications and programs include more than 25 years of publications on health plan contracting, design, administration and risk management including a “Managed Care Contracting Guide” published by the American Health Lawyers Association and numerous other works on vendor contracting.  You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer here.

Other Helpful Resources & Other Information

We hope that this information is useful to you.   If you found these updates of interest, you also be interested in one or more of the following other recent articles published on the Coalition for Responsible Health Care Reform electronic publication available here, our electronic Solutions Law Press Health Care Update publication available here, or our HR & Benefits Update electronic publication available here .  You also can get access to information about how you can arrange for training on “Building Your Family’s Health Care Toolkit,”  using the “PlayForLife” resources to organize low-cost wellness programs in your workplace, school, church or other communities, and other process improvement, compliance and other training and other resources for health care providers, employers, health plans, community leaders and others here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail by creating or updating your profile here. You can reach other recent updates and other informative publications and resources.

Recent examples of these publications include:

For important information about this communication click here.

©2013 Cynthia Marcotte Stamer.  Nonexclusive right to republish granted to Solutions Law Press, Inc. All other rights reserved.


IRS Rules For Employer Reporting Of Wages Paid to Nonresident Alien Employees Performing Services In U.S. Change

November 13, 2009

Employers of nonresident aliens performing services in the U.S. should review and update their existing practices for reporting and withholding income taxes on wages paid to these employees in response to impending changes in Internal Revenue Service (IRS) rules. 

Effective for wages paid on or after January 1, 2010, IRS Notice 2009-91 IRS Notice 2009-91 implements new rules for determining the amount of income tax to be withheld from the wages of nonresident alien employees performing services within the United States.  These new rules will be set forth in the new revision of Publication 15 (Circular E), Employer’s Tax Guide, and other IRS publications. Notice 2009-91 will appear in IRB 2009-48, dated Nov. 30, 2009. An advance copy of the Notice 2009-91 is available for review here.

Notice 2009 modifies the rules for employers to use in calculating income tax withholding on nonresident alien employees to reflect two tax benefits for which nonresident alien employees are not eligible: (1) the standard deduction; and (2) the Making Work Pay Tax Credit.

Beginning with wages paid on or after January 1, 2010, employers are required to calculate income tax withholding under section 3402 of the Code on wages of nonresident alien employees by making two modifications:

  • Employers need to add an amount to wages before determining withholding under the wage bracket or percentage method in order to offset the standard deduction built into the withholding tables; and
  • Employers need to determine an additional amount of withholding from a separate table applicable only to nonresident alien employees to offset the effect of the Making Work Pay Tax Credit built into the withholding tables.

The specific steps to be followed for each of these two modifications will be set forth in Publication 15 and other IRS forms or publications.

Under the Obama Administration, the IRS is placing renewed regulatory and enforcement emphasis on employer classification of worker and proper wage reporting and income and employment tax withholding and payment. In light of these liabilities, employers should ensure that their current practices are properly updated and administered.

If you have questions about or need assistance with these or other employment, compensation, employee benefit, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer.  Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation and employee benefit, workplace safety, and other labor and employment, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.   For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here.  Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here.   If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

©2009 Cynthia Marcotte Stamer. All rights reserved. 


IRS Updates Procedures Qualifying Small Employers Can Use To Qualify To Report Employment Taxes Annually Rather Than Quarterly

October 27, 2009

The Internal Revenue Service (IRS) today published updated procedures governing when certain employers may elect to report social security, Medicare and withheld federal income taxes (employment taxes) annually by filing IRS Form 944, rather than reporting those amounts quarterly for tax years beginning after December 31, 2009. 

Beginning in the 2010 tax year, Revenue Procedure 2009-51 will allow qualifying employers to opt out of filing Form 944 social security, Medicare and withheld federal income taxes (“employment taxes”) for any reason if they follow the procedures set forth in Revenue Procedure 2009-51 by the applicable deadline specified in the Revenue Procedure.  The procedures set forth in Revenue Procedure 2009-51 generally are available only to employers are those with an estimated annual employment tax liability of $1,000 or less for the entire calendar year, other than employers required to make a return on Form 943, Employer’s Annual Federal Tax Return For Agricultural Employees, or on Schedule H (Form 1040), Household Employment Taxes.

Revenue Procedure 2009-51 outlines the procedures that qualified employers can apply to report employment taxes annually on the Form 944.  Employers wishing to take advantage of this option must request to file the Form 944 by contacting the IRS as specified in Revenue Procedure 2009-51 and have received the written approval of their request from the IRS before using the Form 944 by the applicable deadline.  Alternatively employers who previously received notification of their qualification to file Form 944 must continue to file Form 944 unless the IRS notifies the employer that the employer no longer qualifies to file Form 944 or the employer opts out consistent with the procedures set forth in Revenue Procedure 2009-51.

Employers electing to report employment taxes annually rather than quarterly should ensure that they continue to timely deposit employment taxes as required by the Internal Revenue Code.  Generally, the same deposit rules apply to employers regardless of which form they file to report their employment tax liability; however, the de minimis deposit amount may be different. Employers who file Forms 941 and 944 still must deposit their employment tax liability in accordance with the rules in Treas. Reg. §§ 31.6302-1 and 31.6302-1T or, absent reasonable cause, the employers may be subject to the penalty for failure to deposit under section 6656.

Qualifying employers wishing to make elections under these rules must act in a timely fashion.  An employer wishing to request to opt in or out of filing Form 944 for the current tax year via telephone generally must call the IRS at the designated number on or before April 1st of the current tax year (e.g., April 1, 2010 for returns for tax year 2010); written requests generally must be postmarked on or before March 15th of the current tax year (e.g., March 15, 2010 for returns for tax year 2010).  Special deadlines apply for businesses that recently received an employer identification number or had an employer identification number but were not previously required to file Forms 941 or Form 944.  Consult your tax advisor if you have questions about these deadlines. 

If you have questions about or need assistance evaluating, commenting on or responding to these or other employment, compensation, employee benefit, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer.  Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, Ms. Stamer is experienced with assisting employers and others about compliance with federal and state employment, compensation and employee benefit, workplace safety, and other labor and employment, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.   For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here