What s News in Tax Analysis That Matters from Washington National Tax

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1 What s News in Tax Analysis That Matters from Washington National Tax Certain Late Taxes Can Be Paid Interest Free The complexity of deferred compensation arrangements, taxable fringe benefits, and other types of supplemental wages sometimes contributes to erroneous determinations of employees taxable wages, Federal Insurance Contributions Act ( FICA ) tax, and income tax withholding. This article alerts employers of the opportunity to correct mistakes on an interest-free basis if timely corrective action is taken. August 10, 2015 by Steven Friedman, Washington National Tax Steven Friedman is a director in the Practice, Procedure, and Administration group of Washington National Tax ( WNT ). The ability to pay taxes past their due date on an interest-free basis seems too good to be true. But such a mechanism exists in the federal employment tax world. Employers can correct employment tax reporting errors using the interest-free adjustment provision under section Employment taxes included in this provision are the employee and employer share of FICA tax (i.e., social security and Medicare tax) and federal income tax withholding. Although this article focuses on employment taxes, certain other withholding taxes gambling withholding, pension withholding, and backup withholding are also eligible for interestfree adjustments. 1 While the regulations under section 6205 allowing employment tax adjustments to be made interest free date back to 1960, the current guidance was released in 2008 and In those years: Treasury regulations 2 were issued providing the revised framework for making interest-free adjustments; The IRS issued comprehensive guidance illustrating the application of these rules (Revenue Ruling ) 3 ; and The IRS released its initial Form 941-X, Adjusted Employer s QUARTERLY Federal Tax Return or Claim for Refund, to report such tax adjustments. 1 Gambling withholding, pension withholding, and backup withholding are treated as employment tax for the procedural provisions of the Internal Revenue Code (Subtitle F of the Code) pursuant to sections 3402(q)(7), 3405(f), and 3406(h)(10), respectively. 2 T.D (June 30, 2008) I.R.B The KPMG name, logo and cutting through complexity are registered trademarks or trademarks of KPMG International.

2 Certain Late Taxes Can Be Paid Interest Free page 2 Making Timely Corrections An employer that files an employment tax return and discovers in a subsequent year an error resulting in an underpayment of employment tax can correct the error through an interest-free adjustment if the correction is timely made. The timing for making a correction, which requires filing Form 941-X to amend the original quarterly employment tax return, is dependent on when the error is ascertained. The calendar quarter in which the error is ascertained determines when Form 941-X must be filed for interest-free treatment. Form 941-X must be filed by the due date of Form 941 for the quarterly period in which the error is ascertained. For example, Form 941-X for an error ascertained on March 1 would be due April 30, the due date for Form 941 for the quarter ending March 31. Employment taxes paid with Form 941-X at that time, can be paid interestfree. Even if payment cannot be made at that time, the filing of Form 941- X by the above-described due date (March 31 in the example) still provides interest-free treatment up to the due date of Form 941-X. Interest on the unpaid balance reported on Form 941-X runs from the due date of Form 941-X (March 31 in the above example) to the date of payment. If instead, an employer waits to file Form 941-X until after the due date of the current quarter s Form 941, interest on the underpayment of tax reverts back to the due date of the original Form 941. Unless otherwise indicated, section references are to the Internal Revenue Code of 1986, as amended (the Code ) or the applicable regulations promulgated pursuant to the Code (the regulations ). The regulations provide that an error is ascertained when the employer has sufficient knowledge of the error to be able to correct it. 4 But what exactly does this mean? Unfortunately, there is scant discussion of this issue and so one must interpret the phrase using the general meaning of the words. Simply having knowledge of the error may not be enough as some errors require extensive analysis to determine the employees affected and to quantify the impact on each affected employee. If the critical date is dependent on being able to correct it, the date an error is ascertained should permit an employer time to perform the necessary analysis to quantify the error and determine its impact on each employee so that Forms 941-X and W-2c, Corrected Wage and Tax Statement, can be filed. 4 Section (a)(5).

3 Certain Late Taxes Can Be Paid Interest Free page 3 Although such an analysis may be unnecessary for small errors affecting only a few employees, if errors affect a large numbers of employees, it could take an employer weeks or even months to determine the extent of the error. Not until the required detailed work is completed can an employer take the next step to correct an error through the filing of an amended employment tax return (Form 941-X). The date information necessary to file Form 941-X is available should be the date the error is ascertained. Note that this discussion assumes that an employer is acting diligently in its efforts to assemble the necessary data to make required corrections. Accordingly, employers that take an extended period of time to compile the information necessary for adjustment are at risk of the IRS asserting that corrections were not timely made based on the error having been ascertained in a prior calendar quarter (resulting in Form 941-X being filed after the required due date). Errors Discovered by the IRS To the surprise of many, interest-free treatment is also available for adjustments that surface during the course of an IRS examination. This, however, actually makes sense if favorable treatment is intended for those that unintentionally failed to properly report employment tax. 5 If an unintentional error is discovered by an IRS agent and an employer agrees to the adjustment, the signing of Form 2504 (whereby the employer agrees to the assessment of additional employment tax) is the equivalent of filing Form 941-X (i.e., submitting a signed Form 2504 to the IRS agent satisfies the requirement for filing an adjusted return). 6 In order for the adjustment to be entirely interest free, the employer must pay the employment tax due when it submits the signed Form Otherwise, interest will accrue from the date the signed Form 2504 is submitted (which may still provide an extensive period of interest-free treatment). 5 There may be instances in which the taxpayer s rationale for an underpayment of employment tax lacks adequate legal support such that it could not have been the result of an innocent mistake. In these cases, an interest-free adjustment is likely not appropriate. 6 IRS Form 2504 is titled, Agreement and Collection of Additional Tax and Acceptance of Overassessment (Excise or Employment Tax). 7 See Rev. Rul , Example 8.

4 Certain Late Taxes Can Be Paid Interest Free page 4 Note that an employment tax correction will be ineligible for interest-free treatment if an employer receives notification from the IRS for payment before an employer has filed Form 941-X or submitted a signed Form An interest-free adjustment is also unavailable to correct an underpayment of employment tax if the reporting failure relates to an issue previously raised in an IRS examination. Further, adjustments cannot be made if an employer knowingly underreports its employment tax liability. 9 What about an employer that does not agree with the IRS agent s determination and exercises its appeal rights? If an agreement is reached with Appeals and a signed Form 2504 or 2504-AD is submitted, an employer is considered to have met the requirement for filing an adjusted return. But what if an agreement cannot be reached with Appeals? If a signed agreement is not submitted and the IRS issues a notice and demand for payment, interest will apply back to the due date of the original Form Correcting Income Tax Underpayments Although FICA tax adjustments can be made to correct Form 941 filing errors that span several years, the rules for correcting underpayments of federal income tax withholding are far more restrictive. Interest-free adjustments of income tax withholding can only be made if the error is ascertained within the same calendar year the wages were paid to the employee, with the following exceptions: The underpayment is attributable to an administrative error (i.e., the amount reported as federal income tax withheld on Form 941, line 3, is less than the amount actually withheld); Section 3509 (a relief provision to reduce employment tax liability in certain worker misclassification situations) applies to determine the income tax underpayment; or The adjustment is reported on Form 2504, 2504-WC, 2504-AD, or another agreement form prescribed by the IRS as part of an examination. 8 Section (a)(6). 9 Section (a)(2). 10 See Rev. Rul , Example 9.

5 Certain Late Taxes Can Be Paid Interest Free page 5 Although an employer cannot correct income tax that should have been withheld in a prior calendar year, the employer remains liable for the amount of income tax that should have been withheld. 11 If the error involves an under-reporting of wages (along with the under-withholding of income tax), the employer should report the additional wages on Form W- 2c without adjusting the reported federal income tax withholding. Payment of any income tax due falls on the employee with the caveat that the employer can be held liable for the amount that should have been withheld (generally based on the supplemental wage withholding rate). Evidence that the employee has paid all required income tax, generally by obtaining a signed Form 4669, Statement of Payments Received, from the employee, should abate any withholding tax liability imposed on an employer (although penalties could still be imposed on the employer, such as a 20 percent negligence penalty). Correcting FICA Tax Underpayments As a result of the limitation imposed on federal income tax adjustments, many corrections made using Form 941-X are limited to reporting and paying FICA tax. Such adjustments require an employer to file W-2 corrections with the Social Security Administration using Form W-2c and Form W-3c. Corrected W-2c statements must also be furnished to the affected employees. The FICA tax paid with Form 941-X must represent both the employer and employee share that is, an employer cannot simply pay the employer s share of FICA. An employer can collect the employee s share of FICA tax by deducting the amount from current wages paid to the employee. If such a deduction is not made, the obligation of the employee to the employer with respect to the FICA tax is a matter for settlement between the employee and the employer. 12 An employer that chooses not to collect or otherwise is unable to collect the employee s share of FICA tax reported on Form 941-X can decide to treat the amount as compensation in the correction year, with the amount grossed-up to take into account required income and FICA tax withholding at the time the deemed wages are paid to the employee. 11 Section Section (d)(1).

6 Certain Late Taxes Can Be Paid Interest Free page 6 The ability to adjust FICA tax underpayments for prior years (as long as the statute of limitations on assessment is open for such years) does not extend to Additional Medicare Tax. 13 In order for an employer to correct an underpayment of Additional Medicare Tax through an interest-free adjustment, the error must be ascertained in the same calendar year that the wages were paid to the employee unless, as described more fully in the above discussion on underpayments of income tax, the underpayment is attributable to an administrative error, section 3509 applies, or the adjustment is reported on Form As is the case with FICA tax, an employer should collect the Additional Medicare Tax from an employee and if collection is not made, it becomes a matter for settlement between the employer and employee. 14 Underpayments of Additional Medicare Tax that are discovered after the end of the calendar year become the responsibility of the employee to pay with the filing of his or her individual income tax return (or amended return). 15 As is the case with income tax withholding failures (and as discussed more fully above), an employer can be held liable for the amount that should have been withheld unless the employee pays the required tax. Procedural Matters Upon discovery of an error, amended 941-X returns should be filed for all tax periods open under the statute of limitations for assessment. Generally, this period is three years after the due date of Form 941 or the date the return was filed, if later. A special rule provides that all quarterly employment tax returns filed for a calendar year before April 15 of the succeeding calendar year are treated as having been filed on April 15 of the succeeding calendar year. 16 Thus, Form 941 for the 1 st quarter of 2013 filed by its due date of April 30, 2013, is deemed filed on April 15, 2014, for purposes of the three-year statute of limitations for assessment. In addition to the benefit of an interest-free adjustment, employers can also avoid late deposit penalties on underpayment corrections paid with the filing of the adjusted return. Late payments of tax, if paid with the adjusted return, will be deemed to have been timely deposited by the 13 Note that the Additional Medicare Tax only dates back to calendar year Section (d)(1). 15 Additional Medicare Tax is reported on Form 8959, Additional Medicare Tax, and should be included with the return filing. 16 Section 6501(b)(2).

7 Certain Late Taxes Can Be Paid Interest Free page 7 employer. 17 Amounts not paid with the filing of the adjusted return may be subject to the 10 percent late deposit penalty under section Although for corrections arising from amounts not actually withheld, the penalty should be limited to the employer s share of FICA based on the IRS s position in Revenue Ruling Conclusion The benefits of promptly correcting employment tax underpayments upon discovery are numerous. If the requirements under the section 6205 regulations are satisfied, an employer can make tax underpayments on an interest-free basis, avoid late deposit penalties, and if the corrective action is via Form 941-X, the amended return should constitute a qualified amended return for purposes of avoiding a negligence penalty under section Because of these benefits, employers should have procedures in place to take prompt corrective action whenever an employment tax error is discovered resulting in an underpayment of tax. Similarly, employers under IRS examination should consider these benefits in evaluating the merits of reaching agreement with the IRS on employment tax adjustments. What's News in Tax is a publication from the Washington National Tax practice of KPMG LLP ( KPMG ) that contains thoughtful analysis of new developments and practical, relevant discussions of existing rules and recurring tax issues. The information contained in this article is of a general nature and based on authorities that are subject to change. Applicability of the information to specific situations should be determined through consultation with your tax adviser. This article represents the views of the author or authors only, and does not necessarily represent the views or professional advice of KPMG LLP. 17 Section (c)(7) C.B Section (c)(2) & (3).

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