Tax-Exempt Orgs Executive Compensation Excise Tax

Proposed Laws underneath Part 4960 of the Inner Income Code present essential steerage for tax-exempt organizations and their associates relating to an excise tax on sure government compensation.  The U.S. Division of the Treasury (“Treasury”) and Inner Income Service (the “IRS”) are accepting feedback till August 10, 2020.  (All through this put up, “Sections” consult with sections of the Inner Income Code.)

As a refresher, Part 4960 was enacted as a part of the 2017 Tax Cuts and Jobs Act (the “TCJA”).  Efficient for taxable years starting after December 31, 2017, Part 4960 imposes an excise tax on the company tax charge (at present at 21%) on sure remuneration in extra of $1 million and on sure separation pay (“extra parachute funds”).  The excise tax falls on “relevant tax-exempt entities” (“ATEOs”) and associated organizations.  It’s meant to have the identical financial impact as a for-profit company shedding a tax deduction.

The Proposed Laws are typically in step with the IRS’s interim steerage underneath Discover 2019-09 (the “Discover”), which is mentioned right here and right here.  However the Proposed Laws elaborate on sure factors and embrace some useful modifications in response to feedback.

If finalized, the Proposed Laws will apply for tax years starting on or after the ultimate rules are revealed within the Federal Register.  Till then, tax-exempt organizations might apply a “cheap, good religion” interpretation of the statute.  For this objective, tax-exempt organizations might depend on the Proposed Laws or the Discover.  Though the Proposed Laws will not be binding, they embrace an inventory of positions that the IRS considers to be an unreasonable interpretation of the statute.

Beneath we talk about 10 key factors underneath the Proposed Laws.

No Grandfathering

The excise tax underneath Part 4960 applies for compensation that’s paid or turns into vested throughout taxable years that begin after December 31, 2017.  In growing the Proposed Laws, the IRS rejected requests to grandfather quantities paid underneath agreements that have been in impact earlier than the TCJA was handed.  The IRS reasoned that the statute didn’t present authority for grandfathering.

In distinction, the TCJA included a grandfathering provision for modifications made to Part 162(m).  Primarily based on the statutory language, the IRS concluded that if Congress meant to permit grandfathering for Part 4960, it could have mentioned so.

Grandfathering is on the record of positions that the IRS considers to be an unreasonable interpretation of the statute.

“ATEO” (Relevant Tax-Exempt Group) Contains Most Tax-Exempts

Just like the Discover, the Proposed Laws make clear that ATEOs embrace all organizations that: (i) are exempt from taxation underneath Part 501(a) (i.e., organizations described in Part 501(c) or (d)), (ii) are farmers’ cooperatives organizations described in Part 521(b)(1), (iii) have revenue that’s excluded underneath Part 115(1), or (iv) are political organizations described in Part 527(e)(1).

Below the Proposed Laws, Part 4960 doesn’t apply to a governmental entity that claims exemption from federal revenue tax primarily based on sovereign immunity (similar to many public universities), however provided that the entity isn’t additionally tax-exempt underneath Part 501(a).  A governmental entity that additionally has Part 501(a) tax-exempt standing might relinquish its Part 501(a) standing if it needs to keep away from designation as an ATEO.  Even when a governmental entity isn’t an ATEO, compensation paid by the governmental entity continues to be taken under consideration for functions of figuring out coated workers of associated ATEOs; and the governmental entity can nonetheless be topic to the Part 4960 tax whether it is associated to an ATEO.

Should Combination ATEOs With Associated Organizations (the “Associated Group”): 50% Check

The Proposed Laws require that remuneration for every coated worker should embrace not solely remuneration from the ATEO but in addition remuneration from all “associated organizations.”  For this objective, relatedness is much like a managed group check, besides that the edge for relatedness is 50% somewhat than 80%.  As with a managed group, organizations might be associated on the idea of various components, together with voting rights or rights to worth of a company, income or capital pursuits in a partnership, useful pursuits in a belief, or management over the group’s board or related governing physique.

All through this put up, we consult with the ATEO and its associated organizations because the “Associated Group.”

Lined Workers: As soon as Lined At all times Lined

Typically, coated workers are the highest 5 highest paid workers of the ATEO.  All “widespread legislation” workers of the ATEO should be taken under consideration, even when they’re part-time.  There isn’t any compensation threshold to be able to be coated: the highest 5 highest-paid workers are coated even when nobody within the group has compensation approaching $1 million.

People who will not be widespread legislation workers, similar to non-employee administrators and unbiased contractors, are disregarded.  However officers are presumed to be widespread legislation workers, and due to this fact typically should be taken under consideration until one of many exceptions under applies.

Figuring out the coated workers and monitoring them is critically essential for 2 causes:

First, even when a person doesn’t obtain $1 million, separation funds to the person might set off the “parachute cost” tax described underneath #6, under.

Second, the statute has a “as soon as coated, all the time coated” rule, which signifies that “coated worker” standing stays with a person indefinitely—even after the person’s service with the ATEO has ended.

For instance, suppose a former worker of a tax-exempt basis is later employed into the company workplace of a associated for-profit.  If that particular person was a coated worker of the muse for any taxable yr starting after December 31, 2017, future compensation for service to the for-profit could be topic to the $1 million cap—leaving the likelihood that the excise tax may very well be triggered lengthy after the person’s service to the muse, even when the person by no means once more gives providers to the muse.

The Proposed Laws embrace two exceptions for ATEOs which can be affiliated with for-profits: (1) a “non-exempt funds” exception and (2) a “restricted hours” exception.  To qualify for both exception, the ATEO should not pay or promise any remuneration to the person.  Along with not paying compensation immediately, the ATEO should not promise deferred compensation, even whether it is topic to vesting circumstances, and the ATEO should not reimburse one other entity for any a part of the person’s remuneration (whether or not by means of a direct reimbursement or a price).  As well as, the next circumstances should be happy:

For the non-exempt funds exception, the worker’s time spent offering providers to the ATEO (and any associated ATEOs) should not exceed 50% of his or her complete time for the Associated Group. For functions of this check, service time might be measured by hours or days (the place any day during which the person works for at the very least an hour on behalf of an ATEO counts as a full day labored for the ATEO).  For this exception, the prohibition towards paying or promising remuneration to the worker applies not solely to the ATEO but in addition to any for-profit group that’s managed by the ATEO.

For the restricted hours exception, the worker’s time spent offering providers to the ATEO (and any associated ATEOs) should be lower than 10% of his or her complete time for the Associated Group. Once more, service time might be measured by hours or days (the place any day during which the person works for at the very least an hour on behalf of an ATEO counts as a full day labored for the ATEO).  Additionally, the proposed rules embrace a secure harbor, underneath which a person who doesn’t work greater than 100 hours for the ATEO (and any associated ATEOs) in a yr will mechanically be handled as under the 10% threshold.  Not like the nonexempt funds exception, this exception doesn’t prohibit compensation paid or promised by a taxable group that’s managed by the ATEO.

The exceptions ought to assist to keep away from excise taxes because of compensation paid by for-profits to workers who present restricted providers to ATEOs.  However you will need to preserve the “as soon as coated, all the time coated” rule in thoughts.  If a person ever turns into a coated worker, she or he will retain coated standing even when service and compensation ranges later drop under the extent for an exception.

Below the Proposed Laws, each ATEO should have its personal record of coated workers.  The place two or extra ATEOs are associated to at least one one other, every ATEO should have its personal record.  Consequently, if a person is employed by multiple associated ATEO, she or he may very well be a coated worker of multiple ATEO.

Nonetheless, the Proposed Laws embrace a “restricted service” exception (carried ahead from the Discover) for instances the place a person gives service to multiple associated ATEO.  Below the restricted service exception, an ATEO can disregard a person for a tax yr if, for that yr, the ATEO paid lower than 10% of the person’s complete remuneration from the Associated Group, and at the very least 10% of the person’s complete remuneration from the Associated Group is paid by one other associated ATEO.  If no different associated ATEO paid at the very least 10% of the person’s complete remuneration, the person should be included within the coated worker evaluation for the ATEO that paid the very best proportion of the person’s complete remuneration.

Once more, the exception doesn’t erase coated worker standing for somebody who was a coated worker in a previous yr.  As described under, failure to use the “as soon as coated, all the time coated” rule is on the record of positions that the IRS considers to be an unreasonable interpretation of the statute.

Particular Timing Rule for Remuneration

For functions of the $1 million cap, “remuneration” typically has the identical definition as wages underneath Part 3401 (the revenue tax withholding guidelines), however there is a vital timing distinction for quantities which can be earned in a single yr and paid in a later yr.  Somewhat than wait till remuneration is paid, deferred compensation should be included in remuneration for the yr during which it turns into vested underneath Part 457(f)—i.e., when the remuneration is now not topic to a considerable threat of forfeiture.

Not like Part 457(f), the Proposed Laws wouldn’t have a short-term deferral rule.  This implies, for instance, {that a} bonus payable in January or February for service through the prior yr might rely towards the $1 million cap for the prior yr.  The evaluation activates whether or not the bonus is conditioned on persevering with to supply providers through the yr of cost.  If the bonus is conditioned on persevering with to supply providers through the yr of cost, it could rely for the yr of cost; but when the bonus isn’t conditioned on offering providers through the yr of cost, it could rely for the prior yr.

In gentle of this rule, the vesting schedule for retention bonuses and different deferred compensation can have a dramatic affect on the excise tax.  For instance, suppose an government’s five-year employment settlement gives for $150,000 per yr of deferred compensation, to be paid provided that the person serves out the time period.  If the deferred compensation vests on the finish of the time period, the total $750,000 ($150,000 per yr instances 5 years) would rely for Part 4960 functions within the final yr of the time period.  If the person has greater than $250,000 of wage or different remuneration for that final yr, the group must pay an excise tax—despite the fact that the accruals by no means attain $1 million per yr.  In distinction, if the deferred compensation have been to vest ratably (for instance, $150,000 on the finish of every yr), the excise tax may not be triggered.

If deferred compensation turns into vested earlier than the yr of cost, the remuneration for the yr of vesting could be the current worth as of the top of that yr.  Earnings (or development in worth) for the interval after vesting would rely for Part 4960 functions annually as they accrue.  In distinction, revenue tax on earnings would typically be deferred till the yr of cost.

Watch out for “Parachutes”: They’re Simpler to Set off Than You May Anticipate

As famous above, separation pay to coated workers can set off the “parachute cost” tax even when the person’s compensation by no means reaches $1 million.  For this objective, separation pay consists of any quantity that turns into payable because of a coated worker’s involuntary separation from employment with an employer—i.e., quantities that may not turn out to be payable if not for the involuntary separation.  Much like Part 409A, “involuntary” separation consists of resignation for “good cause” if sure circumstances are happy.

Typically, the parachute tax is triggered if separation pay equals or exceeds three instances a coated worker’s “base quantity.”  For the next causes, the tax might be triggered even when a person’s severance by no means will get shut to three instances wage:

First, the “three instances” check isn’t primarily based on present compensation, however somewhat relies on the person’s “base quantity.” The bottom quantity is the person’s common taxable wages (as reported in Field 1 of Type W-2) over the previous 5 years (or, if much less, the person’s interval of employment with the ATEO).  If a person’s compensation has elevated over time, the bottom quantity might be considerably smaller than the person’s wage on the time of separation.

Second, for functions of parachute funds, remuneration isn’t restricted to taxable compensation. With restricted exceptions (similar to funds underneath a tax-qualified or Part 403(b) plans), all quantities within the nature of compensation should be taken under consideration.  For instance, the worth of continued medical health insurance, which is usually greater than $30,000 per yr, and life insurance coverage should be taken under consideration for functions of the parachute evaluation.

Third, separation pay consists of not solely severance, but in addition vesting of bonuses, fairness and deferred compensation. For instance, if a person has a deferred compensation steadiness that’s conditioned on continued service however turns into vested upon involuntary termination with out trigger, the total steadiness would rely for functions of the parachute cost calculation.

You will need to analyze separation funds fastidiously, as a result of the results of hitting the three instances threshold might be dramatic.  Though the edge for triggering the excise tax is three instances the bottom quantity, the tax applies to separation pay in extra of 1 instances the bottom quantity.  For instance, suppose a person’s base quantity is $100,000.  The excise tax could be triggered if the person’s separation pay (bearing in mind the worth of deferred compensation that turns into vested and fringe advantages) is $300,000 or extra.  If the person’s separation pay is $299,999.99, the excise tax wouldn’t be triggered.  But when the person’s separation pay is $300,000.00, the excise tax could be $42,000 (21% of the surplus of $300,000 over $100,000).  The penny makes an enormous distinction.

The Proposed Laws embrace anti-abuse guidelines to stop organizations from shifting the time of cost proximate to an involuntary separation from service to be able to keep away from the funds being categorised as parachute funds.  For instance, if an employer accelerates the vesting of a bonus or deferred compensation in order that it’s paid shortly earlier than employment is terminated, the quantity accelerated may very well be handled as contingent on the separation of employment that quickly adopted.

Medical Companies Exception: Cheap, Good Religion Allocation

By statute, the excise tax underneath Part 4960 doesn’t apply for quantities paid for medical and veterinary providers; and quantities paid for medical and veterinary providers should be disregarded for functions of figuring out the ATEO’s 5 highest paid workers.  For instance, compensation that hospitals pay to docs and nurses should be disregarded to the extent that the compensation is for medical providers (as distinct from compensation for administrative providers, whether or not paid immediately by the ATEO or by a associated group similar to a administration providers group).

The place a person performs each medical/veterinary and administrative providers (for instance, a Chief Surgeon), the Proposed Laws carry ahead the “cheap allocation” rule from the Discover.  Just like the Discover, the Proposed Regulation gives that the employer can comply with an allocation laid out in an employment settlement (or different written association), if the allocation is cheap.  One other attainable strategy could be to allocate primarily based on time data or to allocate primarily based on compensation for people with comparable duties (e.g., decide the medical portion primarily based on compensation paid to different docs in the identical subject who wouldn’t have administrative accountability, or decide the executive portion primarily based on compensation paid to directors who don’t even have medical accountability).  The IRS has requested feedback on different examples of cheap strategies of allocation.

Relevant Yr for Organizations With Non-Calendar Fiscal Years

Just like the Discover, the Proposed Laws present that the relevant tax yr is the calendar yr ending with or throughout the ATEO’s tax yr.  For instance, if an ATEO’s fiscal yr ends on June 30, the relevant yr for the tax yr ending June 30, 2020, is calendar yr 2019.  If the excise tax applies for compensation paid throughout 2019, it must be reported on Type 4720, and paid, by the Type 990 submitting deadline for the ATEO’s tax yr ending June 30, 2020—i.e., by November 15, 2020.  For quantities paid in calendar yr 2020, the excise tax must be reported and paid by the Type 990 submitting deadline for the ATEO’s tax yr ending June 30, 2021—i.e., by November 15, 2021, topic to extension.  An extension for submitting Type 990 mechanically extends the deadline for submitting Type 4720, however an estimated tentative tax should be paid by the due date with out extension.

The relevant yr for functions of Part 4960 is identical as for functions of Type 990.  However the compensation calculations for Part 4960 will not be the identical as for Type 990.  For instance, the requirement to rely compensation within the yr of vesting (described in #5, above) doesn’t apply in the identical method for Type 990 functions.  Consequently, the quantity handled as present compensation for Part 4960 is not going to essentially be the identical as the quantity reported as present compensation on Type 990.

Allocation and Fee of Excise Tax

If a coated worker receives compensation from multiple affiliated group (taxable or non-taxable), and the excise tax is triggered, the tax should be allotted among the many organizations, together with for-profit organizations.  Typically, every group’s allocation is decided by a ratio.  The numerator is the quantity of remuneration that’s paid or payable by the group for the yr, and the denominator is the coated worker’s complete remuneration for the yr from the Associated Group.  Just like the Discover, the Proposed Laws embrace guidelines to stop double-counting.

Per Se Unreasonable and Non-Good Religion Interpretations

Whereas the Proposed Laws enable an inexpensive, good religion interpretation of the statute, the Proposed Laws present that the next positions are per se not cheap, good religion interpretations of the statutory language:

Failing to use the “as soon as coated, all the time coated” rule—for instance, treating a person as now not coated after a sure time period has handed.

Failure of a associated group—which can be a for-profit or a governmental entity that’s not an ATEO—to pay its share of the excise tax underneath Part 4960.

Counting remuneration for medical or veterinary providers for functions of figuring out the ATEO’s 5 highest-compensated workers.

Having a single group of 5 coated workers for a bunch of associated ATEOs. Every ATEO should have its personal record of coated workers.

© 2020 Proskauer Rose LLP. Nationwide Legislation Evaluation, Quantity X, Quantity 210