The IRS Will Begin Taxing Your Employer-Reimbursed Health Insurance

There was an article last week in the New York Times titled “IRS Bars Employers From Dumping Workers into Health Exchanges.” I scanned it quickly and made a note to return to the topic.

The IRS published Notice 2013-54 last year addressing, among other things, employer use of health reimbursement arrangements (HRAs). HRAs were popular for many years as a way to offer employees a tax-free fringe benefit. A common plan was employer reimbursement of qualifying medical expenses up to a limit (say $1,500 annually, for example). I used to be in one several years ago. Twice a year I would submit medical expenses for reimbursement. Shortly thereafter, I would receive a check, all without a nick to my W-2.

Then came ObamaCare.

There are questionable definitional rules under ObamaCare. For example, ObamaCare defines a coterie of health services to be “essential health benefits” (EHBs). You cannot have limits – either annual or lifetime – on EHBs. Why no limits?  It sounds great, like free ponies and summers off, but the government had to promise the insurance companies that it would subsidize them too if ObamaCare ran off the rails.

Think about the interaction of an HRA with the rule concerning EHBs. If an HRA is considered an EHB plan, then the plan will fail because there are annual limitations on the benefit. In our example, the limitation is $1,500, the maximum the plan would reimburse any one employee.

Notice 2013-54 considered HRAs to be just that, and now HRAs – with extremely limited carve-outs – are going the way of the dodo bird.

Let’s put a twist on the HRA example. Let’s say that you buy and your employer reimburses you for health insurance. Can that reimbursement be left off your W-2?

The New York Times was addressing that question.

Let’s go through the decision grid. I see three general ways an employer can approach health insurance:

(1)  The employer provides you with health insurance.

a.     In which case the rest of this discussion does not apply

(2)  The employer does not provide you with health insurance.

a.     Your employer may have issues depending on whether it has 50 employees or more.

                                                              i.     If no, there are no penalties.

                                                            ii.     If yes, your employer has penalties.

b.    You still have no insurance, though.

(3)  The employer does not provide you with health insurance but it does provide you with money to buy health insurance.

a.     Again, your employer may have penalties, depending on whether it has 50 or more employees.

b.    You have more money, but … do you have to pay tax on that money?

Since before Alaska and Hawaii became states, the answer to that question has been “No.”

With ObamaCare, the answer is now “Yes.”

The IRS has stated that any monies provided by your employer in scenario (3) above have to be included on your W-2. This means of course that you are paying taxes on it, and your employer is also paying taxes on it. You and your employer are unhappy with this. Retailers, homebuilders and car dealers are also unhappy with this, as you will have less after-tax money to spend with them. The only one who is happy with this is the government.

You know that there will be employers who are uninformed of these new rules - or informed but not care about any new rules. What will be their penalty for noncompliance?

That is what the IRS clarified last week. The penalty is $100 per day. Yes, that is $100 times 365 days = $36,500 per year. For each employee.

Let’s gain altitude and get some perspective on why the government is being so harsh. 

Remember that policies on the individual health exchanges are eligible for subsidy if one’s family income is less than 400% of the poverty line. The government does not want an employee to go the exchange and possibly receive a government subsidy at the same time that his/her employer is also providing a nontaxable employee benefit. That would be a double-dip.

You have to admit, it is a valid point.

It is also a valid point to question what the real government policy is here: for you to have health insurance or for the government to tax you? If the former, then the government could have reduced – or denied – health exchange subsidies to compensate for an employer reimbursement plan. If the latter, then the most recent IRS pronouncement makes perfect sense.

The IRS Will Be Looking At Deferred Compensation Plans

The IRS recently launched a limited audit effort to gauge how well nonqualified deferred compensation plans are complying with the tax Code. My understanding is that the number of companies to be contacted will be less than 100. The IRS will use this effort to refine its audit techniques in three areas of nonqualified deferred compensation:

1. Initial election to defer compensation
2. Subsequent election to defer compensation
3. Eventual payment of said compensation

Before proceeding further, let’s define the “nonqualified” part of this term. Someone is deferring compensation. Perhaps someone (say, Tom Brady) is earning $15 million this year, but some or all of it will not be paid until some future date. It happens all the time, and the IRS has limited “preapproved” ways to do so. The classic way is stock options, for example.

Deviate in any way from the IRS-preapproved road, however, and the plan is referred to as “nonqualified.” I use nonqualifieds on a common basis, as they allow more flexibility in their planning and implementation than qualifieds. There is no connation of good or bad to being “nonqualified.”

The IRS is looking at Section 409A, a particularly nasty Code section.

What was the purpose of Section 409A? Let’s go back to 2000 and 2001. We are now talking about Enron, an energy and commodities company headquartered in Houston and one of the most scandalous business frauds of all time. Enron executives pushed their way to the front of the line by accelerating the payout of their deferred compensation before the company went under. You may recall that the average employees were blocked-out of their 401(k)s, with the result that they saw their retirement dwindle if not evaporate while company fat cats, like Kenneth Lay and Jeffrey Skilling,  walked away with wheel barrels full of cash.

How did it evaporate? There were two primary drivers:

(1)  Enron made its 401(k) matching contribution with company stock. Then it put in a lockdown, preventing employees from selling that stock until age 50.

(2)  Enron decided to transfer the administration of its 401(k). Unfortunately, this occurred during the period the stock collapsed, and employees were preventing from selling their stock even if they could and wanted to.

The truth of the matter is that many companies, not just Enron, use their own stock to fund a 401(k). For example, Coca Cola employees keep more than 80% of their 401(k) assets in Coca Cola stock. At Proctor & Gamble, the percentage is over 90%.

So what we have is an issue of corporate 401(k) matching, as well as an issue of the interregnum between plan administrators. That was not sufficient for Congress, which loves nothing more than a good scandal (unless it is their own, of course). In response, Congress passed Sarbanes-Oxley in 2002. It then passed the American Jobs Creation Act – containing Section 409A – in 2004.

Congress was after deferred compensation.  

Section 409A starts off easy enough: it applies to any “plan” that provides for the “deferral of compensation” to “service providers.” A “plan” does not need to be reduced to writing, and “”service providers” can included independent contractors as well as employees. “Deferral” means any payment (to which a service provider has a legally binding right) that may be received in a future tax year.

            STEP ONE: Carpet bomb. Look for survivors later.

The IRS had to start excluding something, otherwise this thing was going to dragnet everything- think accrued sick leave or accrued vacation pay - into its wake. Remember: any compensation not paid IMMEDIATELY could potentially detonate this tax trap.

It didn’t matter how much money you made, either. This thing was not limited to the big wigs. Section 409A swept up the small and large alike.

How ridiculous does this go? A number of years ago the IRS decided that schoolteachers were violating Section 409A by deferring their salary over 12 months rather than being paid over the 9 months comprising a school year. Let that sink in: the IRS felt driven to protect Americans from the rapaciousness of schoolteachers wanting to budget their salary over 12 months.

NOTE: The IRS received so much bad press that it was forced to reverse its position. That was fine, but a more cogent question was whether the law was so deeply flawed that its logical progression inevitably led to absurd results.

Therefore, the IRS gave us a few exceptions, including:

·       “Short term deferrals”

o   This means being paid by March 15 of the following year

·       Qualified plans, which means pension and profit-sharing plans, including your 401(k)

o   Obvious

·       Certain welfare plans, such as vacation and sick leave plans

o   Obvious

·       Grants of incentive stock options (ISOs) and employee stock purchase plans (ESPPs)

o   Have their own rules

·       Options to buy the stock of the service recipient, but only if the exercise price is not less than the market value of the stock on the date of grant

o   This means that – if you work at P&G and can buy P&G stock through a plan, you had better pay full retail price. If P&G gives you a discount – say you buy for 90 cents on the dollar – the IRS sees this as a “feature for the deferral of compensation.”

What happens if you are pulled into this thing?

·       The plan better be in writing

·       You better make a timely election to defer

·       Distributions to you may only be made upon occurrence of six IRS-approved events

·        You better not be able to accelerate your deferred benefits

What is a timely election? It is not what you may think. Timely in this context means “before you earn it.” For example, if your 2014 bonus is payable in 2015, you had better have your election in place in 2013.

What if you want to make a change to an existing deferral?

·       The payment must be deferred for at least another five years

o   So if you were to start in 2017, you can now start no earlier than 2022

·       And you better make this change at least 12 months before the payment was scheduled to be paid

What do you have to do to get to your money?

·       Death

·       Disability

Good grief! What else have you got?

·       Separation from service

This means you have to be fired. 

·       Change in control

This means that there is a change in ownership or control of the company. I suppose you could sell the company AND get yourself fired, just to be certain.

·       Unforeseen emergency

Think illness or accident or property loss. Even then, you have to show that expenses could not otherwise be met by insurance or your liquidation of other assets. Goes without saying that amount of distribution is limited to the amount needed for the emergency, plus taxes.

·       Date certain or fixed schedule

Finally, here is the heart of the matter. The IRS wants you to select when the deferred monies are to be paid and how (lump sum, series of payments) and then stick to it. It wants you to decide this way ahead of time, and then severely penalize you if later life events cause you to change in your mind.

What happens if you botch it?  Well, Section 409A will kick-in. 

·       There is tax on the distribution

·       There is interest (called a “stinger”) equal to the regular underpayment rate plus 1%

·       There is a 20% penalty

What if you take a distribution early? Bam – you have tax, interest and penalty.

What if you do not do anything wrong, but the company flubs the paperwork? Bam – you have tax, interest and penalty.

Can you say lawsuit?

That 20% penalty is not calculated as you would expect, either. A reasonable person would anticipate the penalty to be 20% of the tax, or possibly 20% of the tax plus the stinger. It is not, however. The penalty is 20% of the deferred balance, whether received by you or not. 

            STEP TWO: Bayonet the survivors.

What if you are in several plans simultaneously and one goes south? Does one plan contaminate the other? 

Of course it does.

STEP THREE: Repeat steps one and two. 

So what did Congress really accomplish with Section 409A?

·       Inability to distinguish publicly-traded from privately-owned

I scratch my head why Congress thinks that my auto mechanic down the street can get himself in the same trouble as a Humana or a General Electric.

Publicly-traded stock is almost like cash. These companies can buy other companies with it. They can pay employees with it. They can fund retirement plans with it. They can … well, they can play Enron with it.  

A privately-owned company however cannot.  Privately-owned companies are playing with their own money. Even the most reckless take a pause when reaching into their own wallet. A publicly-traded executive is closer to a Washington politician than any of the business owners I am likely to represent.

·       Crippling tax bombs for the unadvised

Change your deferral payment date 363 days – rather than 366 - before scheduled payout and risk tax annihilation. 

Does Congress expect that every businessperson can keep a tax attorney on retainer?

·       Yet another tax “industry”

There are advisors out there specializing in Section 409A. There has to be. You could endanger a large company by implementing a faulty plan. 

However, this is not quite the same contribution to the economy as Steve Jobs introducing the iPhone, is it?   

·       Insinuation into routine business transactions

We have a client who recently hired a business development manager. Their intention is to grow the company for 7 or so years, then sell out. It is their retirement program of sorts, I guess. The deal with the development manager includes deferred compensation, driven off year-over-year business growth and eventual sale of the company. What should be a routine tax matter now requires a Section 409A specialist, to be sure the employment package doesn’t blow up.

You want an alternative to 409A? How about this: all accelerations of executive deferred compensation (remember: Enron was only about acceleration) have to go to a shareholder vote. While we are at it, let’s lock down the executives for the same period as the rank-and-file are locked out of their 401(k)s.

And if Enron was caused by acceleration, why does 409A penalize additional deferrals? What is the point?

So the IRS is going to be looking at 50 – to 100 large companies to check on their 409A compliance. I suspect these companies will be fine, as they have the people, resources and advisors to navigate Section 409A. I would give you a different answer were the IRS to train its attention on privately-owned companies, however. 

News from Murmansk, Russia

At first, I thought the following to be from The Onion, the online humorous and satirical publication of society and current events. Best I can tell, however, it seems genuine.

There was a circus bus in Murmansk. There was a 6 ½-foot crocodile. The circus features a crocodile in one of its performances, perhaps something crazy like putting your head between the jaws of a crocodile.  The bus hit a pothole. A 264- pound woman accountant was sent flying (some pothole!). She landed on top of Fyodor, the previously mentioned crocodile.

Fyodor was sick after being body checked, and he missed his next circus appearance. Medical authorities evaluated Fyodor for injuries. He was thought to have symptoms of shock, but this was unconfirmed because – you now – Fyodor is a crocodile and cannot speak.

The woman accountant was reprimanded and told to wear her seatbelt in the future.

And there was the news on May 22, 2014, from Murmansk, Russia.

Here is the link:

Crocodile injured by falling accountant during circus bus accident in Russia  

Ode To Joy

Sabadell is a city in the Spanish province of Catalonia. Banco Sabadell was celebrating its 130th year anniversary, and it wanted to do something worthwhile and memorable for the citizens of the city. Banco Sabadell did.

This is an exceptional street performance. If it sounds familiar, it is because you are hearing Beethoven's Symphony Number 9 Ode to Joy.

We talk about tax here because we are a tax blog. However, tax is not life. Enjoy, and remember to laugh and smile as often as you can.