Tuition Remission -- A Tax Free Fringe Benefit Debra P. Wilson, Legal Counsel NAIS

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1 Tuition Remission -- A Tax Free Fringe Benefit Debra P. Wilson, Legal Counsel NAIS Schools are looking high and low for ways to hire and retain potential teachers. Fringe benefits have long been used to enhance employment offers, and the IRS has left some tax-free fringe benefits open to schools. One of the most important benefits that all educational institutions can use is tuition remission. This benefit allows educational institutions to provide free or reduced tuition to the dependents of their employees. This article is designed to educate NAIS schools on this attractive, and legal, non-taxed fringe benefit, as well as to answer some frequently asked questions about tuition remission programs. Schools should work with legal counsel to create such benefits to ensure that they are not accidentally running afoul of benefits and tax laws. The Relevant Language of the Internal Revenue Code. Section 117, subsection d, of title 26 of the United States Code, or 26 U.S.C. 117(d) to the more legal crowd, reads almost as dryly as a high school grammar book. It provides, in pertinent part: (d) Qualified Tuition Reduction. (1) In General. Gross income shall not include any qualified tuition reduction. (2) Qualified Tuition Reduction. For purposes of this subsection, the term qualified tuition reduction means the amount of any reduction in tuition provided to an employee of an organization described in section 170(b)(1)(A)(ii) for the education (below the graduate level) at such organization (or another organization described in section 170(b)(1)(A)(ii)) of (A) (B) such employee, or any person treated as an employee (or whose use is treated as an employee use) under the rules of section 132(h). (3) Reduction Must Not Discriminate In Favor of Highly Compensated, Etc. Paragraph (1) shall apply with respect to any qualified tuition reduction provided with respect to any highly compensated employee only if such reduction is available on substantially the same terms to each member of a group of employees which is defined under a reasonable classification set up by the employer which does not discriminate in favor of highly compensated employees (within the meaning of section 414(q)). For 2011 National Association of Independent Schools Page 1

2 purposes of this paragraph, the term highly compensated employee has the meaning given such term by section 414(q). Despite the density and obliqueness of the language and structure, this statue provides a tax-free benefit that is easy for schools to provide. At its most basic, this statute provides for tax-free tuition breaks for staff. At its more creative end, the statute allows for k-12 and higher education institutions to provide tax-free tuition reduction to each school for all staff children. B. The Statute in Plain Language. Generally, Section 117(d) of the Internal Revenue Code provides that a faculty or staff member, employed by a school, is not subject to federal income tax on a qualified tuition reduction (QTR). A QTR is defined as: a reduction in tuition for education of the employee or his spouse or dependent child, below the graduate level, at the employer-school or at another educational organization, where no choice is offered between the tuition reduction and taxable compensation. This benefit is tax-free to highly compensated employees where the reduction is available on substantially the same terms to all employees of the school or to employees defined under a reasonable classification set up by the employer that does not discriminate in favor of highly compensated employees. In short: A school may provide its employees with tuition breaks, or cash grants for payment of tuition, without that benefit being considered taxable income to the employee. The only exceptions to this rule are if a choice is offered between cash and the tuition reduction, or if the availability of the benefit discriminates in favor of highly compensated employees. If this discrimination occurs, the benefit is taxable, but only to the highly compensated employees. Basic Definitions and Questions. As with all statutes, the application of this statute has been shaped by case law, regulations, and rulings from the IRS. The end result is something a bit more manageable and readily applied. The following questions and answers walk through the basic definitions and questions relating to the statute. What is a qualified tuition reduction? A qualified tuition reduction can be anything from a partial to full waiver of tuition. It may be based on need. It may be accounted for as financial aid, compensation, or benefit. It may be a cash grant to cover tuition expenses at another school. A qualified tuition reduction may be structured in any of a number of ways, and to suit the school s budget, provided that the plan does not discriminate in the manner described later in this article. Isn t a QTR the same thing as an educational assistance plan, as described in Section 127 of the Internal Revenue Code? Page 2

3 No. Unlike Section 127 plans, QTRs may only be offered by schools, are not subject to any dollar limit, are available for the education of employees, spouses, and dependent children, and are available for tuition only. What is an organization as defined in section 170(b)(1)(A)(ii)? A Section 170(b)(1)(A)(ii) organization, according to the IRS, is one which normally maintains a regular faculty and curriculum and normally has a regular body of pupils or students in attendance at the place where its education activities are regularly carried on. In short: a school. The statutory definition allows for the schools that are operated by churches, museums, dioceses, and the like, so the language is a bit unwieldy. The definition does encompass almost any type of school, from traditional to experimental. Who is a child and who is a dependent? A QTR may be used to benefit a child who is a son or daughter, stepson or stepdaughter, any legally adopted child, or a foster child who is a member of the employee s household and whose principal place of residence is the employee s home. This child must also be a dependent -- that is, the child must fall into one of the following categories: (1) the employee provides over one-half of the child s support for the year; (2) both of the child s parents are deceased and the child is less than 25 years old; (3) the child s parents are divorced or separated and the child receives one-half of his or her support from either or both parents; or (4) the employee is allowed to treat the child as a tax dependent under special rules that apply to multiple support orders. What constitutes education? According to the IRS, education runs the gamut of definitions. Most obviously, preschool, kindergarten, grammar school, middle school, high school and college are all education. Educational, sports, and other camps that emphasize skill development are also considered education. This includes outdoor survival courses. Even certain rehabilitation programs fall into the education category. Schools should contact counsel for a more tailored analysis of proposed activities to be covered by the QTR. What expenses cannot be covered by a QTR? A qualified tuition reduction may not cover books, fees, stipends, room, board, or other living expenses. Tuition in the sense of this statute really means tuition, and that is it. Nothing else may be covered by this particular benefit. May the school offer other options in lieu of the tuition reduction? Page 3

4 No. The school may not offer any choice between tuition reduction and taxable compensation. Employees may not be given the option of reducing their salaries in exchange for a qualified tuition reduction. Along the same lines, the employee may not receive a higher salary for years in which he or she does not take advantage of the tuition reduction. In addition, the employee may not be offered a taxable fringe benefit in lieu of the qualified tuition reduction. What about providing tuition reduction for use at other schools? You may provide a cash grant for your employees to use at other schools. However, you may also work with other schools and pool a number of reductions for all of the benefit groups. This would be particularly useful and inviting to teachers if the reductions covered a range of ages. For example, Country Day Elementary provides four half-price tuitions, Country Day Middle School provides four half-price tuitions, and Country Day High School does the same. The reductions could be made available to all of the teachers in these schools on a lottery basis. Can I limit the number of tuition reduction grants provided by my school? The IRS has provided that where the number of tuition reductions is limited, special rules apply. Benefits can be allotted on a lottery, critical need, first come, first served, or seniority basis. This is true so long as notice of the terms of availability is given to all employees in the classification, the terms under which the benefit is provided are otherwise the same with respect to all employees in the classification, and certain additional conditions are satisfied. Similar approaches may well be permitted by future regulations under Section 117(d), when a school allots a specified aggregate amount toward tuition reductions or grants. In addition, the classification may be modified to limit the number of tuition reductions provided. Can I have multiple levels of tuition reduction classifications? Many schools may want to provide different levels of tuition reduction to most employees. A school may want to give $1,000 reduction to all janitorial staff, $4,000 to all part-time teachers, and $5,000 to other teachers and administrators. This breakdown is permissible, provided that each level of benefit passes the tests of reasonable classification, provides benefits on substantially the same terms, and does not discriminate in favor of highly compensated employees. What if the amount of the benefit is reduced and members are grandfathered in? Both groups, those which receive the old benefit and those which receive the new benefit, should be monitored separately. The older group should be monitored the most carefully, as it is more likely to run into discriminatory problems down the road. What if we provide this benefit to our retired or disabled employees? Page 4

5 These former employees must be tested separately as a group for nondiscrimination purposes. Highly compensated employees in this group are determined by their status at the time of retirement, or whether or not they were considered highly compensated at any time after the age of 55. The IRS has still not made it clear whether all former employees are taken into account when considering this group, or only those who have been offered the benefit. Is there a means by which a school may request an IRS determination that the program is nondiscriminatory? There is no current procedure that provides IRS review and approval of QTR programs. Compliance would generally only be determined during an IRS audit. What happens if the IRS finds that this plan discriminates in favor of highly compensated employees? If the IRS determines that a school s plan discriminates in favor of highly compensated employees, those employees, and only those employees, would be taxed on the benefit that they or their family members receive. The school would therefore be responsible for withholding federal and state income taxes, as well as FICA, if applicable, for these amounts. In the case of cash grants, taxes should be withheld. In the case of tuition reduction by the employer school, schools may withhold taxes from the amounts of cash grants or reductions as a precautionary measure. There s Always a Test: Reasonable Classification, Highly Compensated Employees, and Discrimination. Phrases such as reasonable classification, substantially the same terms, highly compensated, and must not discriminate have their own special definitions and tests within the tax world. Tuition remission is no different, but happily not as complicated as most. The following must be met in order to keep this benefit tax-free for highly compensated employees. A. Generally. In order to qualify for tax-free treatment, QTR plans need to be designed and administered properly. In short, the plan must not provide the benefit primarily to the group of employees at the highest end of the pay scale. If a school chooses to do so, those employees will be taxed on that benefit. However, the applicable statutes and definitions provide schools with considerable latitude to create a comfortable mix of income levels among employees. Once you have determined what the basic definitions are, as provided above, you are ready to consider the design of your plan, and whether or not that design keeps the money tax-free in the eyes of the IRS. B. Drawing Parameters: Reasonable Classification. Page 5

6 Your school may not be able to, or want to, provide this benefit for every employee. So, the benefit, like many benefits, may not be available to everyone. The statute states that a reasonable classification must be used. But how does one define the group to whom it will be available? Section 117(d) does not answer this question in itself, but another section of the Internal Revenue Code, Section 410(b), is instructive. In order to be considered reasonable, the classification must reflect bona fide, objective business criteria that identify the category of employees who benefit. Such classifications include specific job categories, nature of compensation (salaried v. hourly), and geographic location. In other words, the classification may be made along educator lines, salary lines, and lines reflecting levels of responsibility. The school may decide, for example, not to offer the benefit to support staff or administrative personnel. C. Highly Compensated Employees. The statute also requires that the plan not discriminate in favor of highly compensated employees. In order to determine who those individuals are, the school should look to the income of its employees for the year proceeding the plan year. Section 414(q) of the Internal Revenue Code provides that highly compensated personnel are those who made more than $110,000 for the year (in 2010, as indexed for inflation) and who are among the 20% highest paid employees in the preceding year. When determining which employees are in the top 20%, do not consider any of the following: employees who have not completed six months of service; employees who normally work less than 17 ½ hours a week; employees who normally work not more than 6 months a year; and employees who are younger than 21 years old. Generally, you may also exclude employees who fall under collective bargaining agreements. In practice, this definition means that the number of highly compensated personnel may change as different employees attain seniority, employees switch between full-time and part-time work schedules, and union activity occurs. When considering the employee s compensation, look to the taxable compensation received by the employee during the previous year. Include any amounts that would have been received in cash during the year but for a salary reduction agreement in connection with a cafeteria benefit plan, a tax sheltered annuity plan, or certain other type of plans. D. Offering Benefits on Substantially the Same Terms. Once you have identified your highly compensated employees and have established a reasonable method of classification (or have decided to offer the benefit to all of your employees), the statute requires that the benefit be offered to all employees on substantially the same terms in order for the benefit to remain tax-free to the highly compensated. In the case of a qualified tuition reduction plan, the IRS has considered this language to mean that the amount of the available tuition reduction or grant must be the same for each member of the classification you have defined. In other words, if the head of school and the science teacher are in the same classification, your school head may not benefit more from the plan than the science teacher. However, there may be different waiting periods for groups of employees within the classification. The head may be eligible for the plan after two years of employment, while the Page 6

7 science teacher must wait three years; however, both must have access to the same amount of reduction. E. Determining Discrimination in Favor of Highly Compensated Employees. Interestingly, there are no regulations that apply directly to this definition within the context of Section 117(d). However, there are instructive sections that a school may use to ensure that its plan is within extremely safe parameters. Determining whether or not a plan discriminates in favor of highly compensated employees is complicated, so we will walk through a fact pattern to get a handle on it. The following example considers what we ve learned, and then determines whether any discrimination exists within the classification. Schools should bear in mind, however, that these plans and others that require testing of discriminatory outcomes should be planned through with experienced legal counsel that specializes in this area. Benefits laws are complex and change regularly. F. Hypothetically Speaking... Country Day, an NAIS school, has 115 employees: 5 administrators, 70 teachers, 25 support staff (paid by the hour), all of whom have been employed full-time for at least a year. There are also 15 seasonal staff, none of whom have ever worked more than six months for the school. In the fiscal year beginning July 1, 2002 and ending June 30, 2003, the head of the school received compensation of $130,000 and the other four administrators were all paid $112,000. No other employees make more than $110,000 a year. Country Day maintains a qualified tuition reduction plan that offers a tuition reduction or cash grant of up to $4,000 per year for each dependent child of Country Day s administrators and faculty members for the children s education at Country Day or any other school. Administrators may take advantage of the plan immediately upon employment, while teachers must wait one year. 1. Initial Questions. a. Is this a reasonable classification? The classification is based on types of jobs and considerations of how the employees are paid; therefore this classification is likely to be considered reasonable. b. Are these benefits offered to the class on substantially the same terms? Although the administrators may take advantage of the plan sooner, both the teachers and the administrators receive the same benefit. c. Who are the highly compensated employees? Page 7

8 To be highly compensated, the employee must make over $110,000 a year and be in the top 20% of employees ranked by compensation. The 5 administrators are all highly compensated employees. 2. Does the plan discriminate in favor of the highly compensated? This is the most complicated question to answer in terms of QTR plans. However, the explanation below walks carefully through the hypothetical. a. Safe Harbor Test: v If your school s plan meets the safe harbor test provided by Section 410(b) of the Internal Revenue Code, the plan does not discriminate in favor of highly compensated employees. To determine whether or not your classification meets the safe harbor test, determine the percentage of all nonexcludable employees who are not highly compensated. Excludable employees are those who have worked for the employee for less than a year, have never performed 1,000 or more hours in a year, and unionized employees who have bargained for similar benefits. There are other possible exclusions to be considered, but those listed are the ones most often addressed. Once the excludable employees have been defined, determine the applicable safe harbor percentage as noted using the chart below. Non-highly Compensated Employees, as a Safe Harbor Percentage Percentage of All Nonexcludable Employees 99% 20.75% 98% 21.50% 97% 22.25% 96% 23.00% 95% 23.75% 94% 24.50% 93% 25.25% 92% 26.00% 91% 26.75% 90% 27.50% In the hypothetical, the seasonal workers, none of whom worked for the school for longer than 6 months, would not be included in the count because they are excludable employees. In the case of Country Day, that leaves 100 nonexcludable employees (115 employees, minus the 15 seasonal workers who are excludable). Of that 100, only 95 are non-highly compensated employees, or 95%. Therefore, the applicable safe harbor percentage is 23.75%. Once you have determined the safe harbor percentage, you must calculate two additional percentages: (1) the number of non-highly compensated employees in the classification being tested, as a percentage of the total number of nonexcludable non-highly compensated employees of the employer, and (2) the number of highly compensated employees in the classification as a Page 8

9 percentage of the total number of nonexcludable highly compensated employees of the employer. In calculating (1): of the 95 nonexcludable, non-highly compensated employees, 70 are eligible for the QTR benefit. Therefore percentage (1) is 73.68%. In calculating (2): the number of highly compensated employees is 5, and the number of nonexcludable highly compensated employees eligible for the QTR is also 5, therefore percentage (2) is 100%. Once these two numbers have been determined, the first should be divided by the second. If the resulting percentage equals or exceeds the safe harbor provision, the safe harbor test is satisfied. In this case, the result is 73.68%, well above the safe harbor provision. b. What if we do not meet the safe harbor test? If your program does not meet the safe harbor test, the facts and circumstances test may still help your program satisfy the IRS requirements. The first aspect of this test is the unsafe harbor provision. The unsafe harbor provision is generally 20% or more if less than 87% of the total employees of the employer are non-highly compensated. In other words, if when you were calculating for the safe harbor provision, your result from dividing the two percentages was less than 20%, you move onto the second part of the facts and circumstances test. If your resultant percentage is between the safe harbor and the unsafe harbor provisions, the IRS will still consider the following tests, but deference will likely be given to the fact that your program is not far outside the safe harbor provision. The second part of the facts and circumstances test is a subjective nondiscrimination test, where the IRS considers the following: (1) The underlying business reason for the classification. Reducing the cost of the benefit to the employer is not a legitimate business reason. (2) The percentage of total employees of the employer included in the classification. The higher the percentage, the less likely the classification will be considered discriminatory. (3) Whether the number of employees benefiting under the plan in each salary range is representative of the number of employees in each range. The more representative the percentage, the more likely the classification is to be viewed as nondiscriminatory. (4) The difference between the percentages (1) and (2) as described above. If your quotient is closer to the safe harbor provision than the unsafe harbor, the IRS is less likely to view your classification as discriminatory. Remember that if your plan fails the discrimination test, the failure only means that the benefit is taxable to the highly compensated employees. Providing that the benefit falls within the definition of a qualified tuition reduction, that amount will not be taxable to the non-highly compensated employees. Page 9

10 Conclusion: Qualified tuition reduction plans can be an excellent, and cost-effective, benefit for schools to provide to their employees. Particularly with the teach shortage already being felt by our community in several areas of the country, schools should consider the variety of benefits that may enhance the employment package offered their prospective employees. If your school is interested in providing qualified tuition reduction, or if your school provides this benefit but is still using the older highly compensated employee test, the school should consult with its attorney to create and design the plan in accordance with the requirements of the applicable statutes. N.B. Please note that the information provided above should not be construed as legal advice nor should it be used as a substitute for consulting with legal counsel. Schools should work with legal counsel, particularly when working with benefits and their respective plans as tax laws are complicated and change regularly. Page 10

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