Avoiding Common Errors When Filing Form 7200

In news for tax professionals and small businesses, the IRS has advised those who are beginning to deal with Form 7200, Advance Payment of Employer Credits Due to COVID-19 to do so carefully to avoid making error when completing the new form.  Mistakes in completing the form can lead to processing delays, which in turn delays the IRS approving the credits.

Background: The Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief and Economic Security or CARES Act both provide refundable tax credits for the employer.  FFCRA requires employers (of a certain size) to provide paid sick leave or paid family leave.  To offset the cost of this leave, the employer is permitted to take refundable tax credits against employment taxes.  The CARES Act permits the employer to take a “employee retention credit” equal to 50% of “qualified wages”.  This is also offset against employment taxes. However, it is possible for these credits to exceed the employer’s actual tax deposits.  In this case, the employer is permitted to receive the excess paid leave credits or the employee retention credit in advance by using Form 7200.

 

However, the IRS has noted some common errors or mistakes in filling out the form, slowing the process.  The errors to avoid include:

  • Missing or inaccurate Employer Identification Number (EIN). Each EIN on a tax return should be exact.
  • Checking more than one box for applicable calendar quarter. Only one box should be checked for the correct quarter.
  • Check more than one box for Part 1, Line A. Likewise, only one box should be checked in Part 1, Line A.
  • Skipping Part 1, Line B. Complete Part 1, Line B. In Part 1, Line B check either “Yes” or “No”.
  • Not fully completing Part II. Complete all the lines in Part II. This identifies which credits are being claimed.
  • Not completing Part II, Lines 1-8. Part II should be completed using dollar amounts, not the number of eligible employees. All lines in Part II should be completed with an actual dollar amount.
  • Inputting the number of eligible employees on lines in Part 2, instead of dollar amounts.
  • Not checking the math on lines 4, 7 and 8 (i.e., subtracting instead of adding or vice versa)
  • Not signing the form (automatic rejection)
  • Wrong individual signing the form
    • Sole proprietorship—The individual who owns the business.
    • Corporation (including a limited liability company (LLC) treated as a corporation)—The president, vice president, or other principal officer duly authorized to sign.
    • Partnership (including an LLC treated as a partnership) or unincorporated organization—A responsible and duly authorized partner, member, or officer having knowledge of its affairs.
    • Single-member LLC treated as a disregarded entity for federal income tax purposes—The owner of the LLC or a principal officer duly authorized to sign.
    • Trust or estate—The fiduciary.

Also, Form 7200 may be signed by a duly authorized agent of the Eligible Employer if a valid Form 2848 (Power of Attorney and Declaration of Representative) has been filed.

For more information about Form 7200 and its use can be found on IRS.gov: About Form 7200, Advance Payment of Employer Credits Due to COVID-19.

WHD Issues Final Rule on Bonuses for Fluctuating Workweek Employees

On May 20, 2020, the U.S. Department of Labor Wage Hour Division (WHD) announced a final rule that allows employers to pay bonuses or other incentive-based pay to salaried, nonexempt employees whose hours vary from week to week. The final rule clarifies that payments in addition to the fixed salary are compatible with the use of the fluctuating workweek method under the Fair Labor Standards Act (FLSA).

In the final rule, the Department:

  • Adds language to 29 CFR 778.114(a) to expressly state that employers can pay bonuses, premium payments, or other additional pay, such as commissions and hazard pay, to employees compensated using the fluctuating workweek method of compensation. (The rule also states that such supplemental payments must be included in the calculation of the regular rate unless they are excludable under FLSA sections 7(e)(1)–(8)). The rule grants employers greater flexibility to provide bonuses or other additional compensation to nonexempt employees whose hours vary from week to week, and eliminates any disincentive for employers to pay additional bonus or premium payments to such employees.
  • Addresses the divergent views expressed by the Department and courts―and even among courts―that have created legal uncertainty for employers regarding the compatibility of various types of supplemental pay with the fluctuating workweek method.
  • Adds examples to 29 CFR 778.114(b) to illustrate these principles where an employer pays an employee, in addition to a fixed salary (1) a nightshift differential and (2) a productivity bonus.
  • Revises the rule in a non-substantive way to make it easier to read, so employers will be able to better understand the fluctuating workweek method. Revised 29 CFR 778.114(a) lists each of the requirements for using the fluctuating workweek method, and duplicative text is removed from revised 29 CFR 778.114(c).
  • Changes the title of the regulation from “Fixed salary for fluctuating hours” to “Fluctuating Workweek Method of Computing Overtime.”

Example 1: Suppose an employee were paid $491 in fixed weekly salary plus an $8 per hour nightshift premium. In a week in which the employee works 50 hours, including 4 hours for which the employee receives the nightshift premium, the employee’s straight time pay is $523 ($491 salary plus $32 nightshift premium), and the regular rate is $10.46. The employer need only pay an additional $5.23, half time the regular rate, for each of the 10 overtime hours, for a total of $52.30. The payment of the $8 nightshift premium is reflected in this fluctuating workweek method computation. The fluctuating workweek method therefore correctly computes overtime pay owed under the FLSA when an employee receives a fixed salary and hours based premiums that compensate him or her for all hours worked.

For a complete text of the rule proposal visit the DOL website.

Payroll Lecture 105: Form 941: COVID-19 Edition

If you thought the 2020 Form W-4 was “fun” now we have Form 941-COVID-19 edition coming for the second quarter of 2020. With 16 new lines this edition is going to be “challenging” to say the least. My new webinar covers all the COVID-19 changes to the Form 941. Join me on Thurs., May 28th starting at 10 am Pacific. Use code cjyfrqa6 at checkout for a 10% discount for my blog followers.

Register today! Only $149.00 (use coupon code bbtk7fcj at checkout for 10% discount)

Date: Thursday, May 28, 2020

Time: 10 am to 11:30 am Pacific (90-minutes)

This Presentation will cover:

  • What’s New for Q2-Q4 2020
  • Families First Act: Credits for Paid Sick Leave and Paid Family Leave
  • CARES Act: including deferring Employer’s Social Security
  • IRS Form 7200: Purpose for the form and how it applies to you
  • Line by line review of the massive changes of the New Revised Form 941

WHD Issues Final Rule on Qualifying as a “Retail or Service” Establishment

On May 18, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced a final rule to provide one analysis for all employers when determining whether they qualify as “retail or service” establishments for purposes of an exemption from overtime pay applicable to commission-based employees.

Section 7(i) of the Fair Labor Standards Act (FLSA) provides an exemption from the FLSA’s overtime pay requirement for certain employees of retail or service establishments paid primarily on a commission basis. Today’s rule withdraws two provisions from WHD’s regulations. The first withdrawn provision listed industries that WHD viewed as having “no retail concept” and thus were categorically ineligible to claim the section 7(i) exemption. The second withdrawn provision listed industries that, in WHD’s view, “may be recognized as retail” and thus were potentially eligible for the exemption. As the rule explains, some courts have questioned whether these lists lack any rational basis.

As a result of the withdrawal of these two lists, establishments in industries that had been on the non-retail list may now assert that they have a retail concept, and if they meet the existing definition of retail and other criteria, may qualify to use the exemption. These other criteria include paying a regular rate at least one and a half times the minimum wage and providing commissions that comprise more than half the employee’s compensation for a representative period. Some establishments on the withdrawn non-retail list may have been deterred from availing themselves of the exemption and its compensation flexibilities. If establishments on the withdrawn non-retail list now qualify for the exemption, they have added flexibility regarding commission-based pay arrangements with their workers. For these employers and workers, they could consider whether, for instance, more commission-based pay is sensible.

Establishments in industries that had been on the “may be” retail list may continue to assert that they have a retail concept. Moving forward, WHD will apply the same analysis to all establishments to determine whether they have a retail concept and qualify as retail or service establishments, promoting greater clarity for employers and workers alike.

WHD is issuing this rule without notice and comment, and it will take effect immediately. Notice and comment and delaying the effective date are not required because both lists being withdrawn were part of WHD’s interpretive regulations and were originally issued in 1961 without notice and comment or a delay.

 

 

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Payroll Lecture 105: 2020 Form 941–COVID-19 Edition

Our next webinar/lecture will cover the 2020 Form 941–COVID-19 Edition.  The passage of the Families First and Cares Acts have caused massive changes to IRS Form 941 that affect the final three quarters in 2020! 16 new lines now appear on this form along with changes to two others! Are you ready to meet these changes and handle them correctly? Here are just some of the new items you must now know and understand:

  • What has changed in Line 11?
  • Where do you enter your total non-refundable credits?
  • Where do you enter the deferred amount of the employer share of social security tax?
  • Where do you enter total deposits, deferrals, and refundable credits?
  • What is entered on Line 22?

This Presentation will cover:

  • What’s New for Q2-Q4 2020
  • Families First Act: Credits for Paid Sick Leave and Paid Family Leave
  • CARES Act: including deferring Employer’s Social Security
  • IRS Form 7200: Purpose for the form and how it applies to you
  • Line by line review of the massive changes of the New Revised Form 941

And more!

Date: Thursday, May 28, 2020

Time:  10:00 am to 11:30 am Pacific (90-minutes)

Cost: $149 per attendee (multiple attendees may attend at one site but only the paid attendee will receive RCHs)

Payroll 24/7 blog followers receive a 10% discount if they register by May 26th using the coupon code cjyfrqa6 at checkout.

Submitted to the APA for 1.5 RCHs

FAQs Keeping Pace With COVID-19 Questions

As questions pour into the Department of Labor and the Internal Revenue Service from employers on the Families First Act and the CARES Act, both agencies are updating their respective FAQs.  Here are the latest updates:

 

Department of Labor:

DOL has added four FAQs, #90-#93, concerning paid family leave or paid leave. These are:

  • FAQ #90 explains whether paid leave requirements under FFCRA apply to temporary workers. A temporary service with over 500 employees is not required to provide leave to its employees. However, the business with fewer than 500 employees where the temporary worker is placed may be required to if it is a joint employer.
  • FAQ #91 addresses whether an employee who has been teleworking is entitled to paid sick or family leave for a school closure when schools have been closed for the past four weeks during the teleworking period. The DOL explains the fact the teleworking employee did not request paid leave during the teleworking period does not exclude the employee from taking such leave.
  • FAQ #92 describes what kind of documentation an employer is permitted to require from an employee who is seeking a medical diagnosis related to COVID-19 symptoms. The DOL explains an employer may require the employee to identify their symptoms and provide a date for a test or doctor’s appointment. However, no further documentation or certification is required. FMLA related leave requests are subject to FMLA documentation requirements.
  • FAQ #93 clarifies that workers who have taken paid sick and paid family leave due to a school closure may not continue to take paid family leave when the school year ends for summer vacation. However, the employee can take paid family leave on the basis that the child’s childcare provider or summer camp is closed or unavailable during the summer due to COVID-19.

Internal Revenue Service:

  • The Internal Revenue Service updated FAQs #64 and #65 regarding the COVID-19 Employee Retention Credit for how eligible employers treat health care expenses.
  • Notice 2020-29 provides for increased flexibility with respect to mid-year elections made under a § 125 cafeteria plan during calendar year 2020 related to employer-sponsored health coverage, health Flexible Spending Arrangements (health FSAs), and dependent care assistance programs. The notice also provides increased flexibility with respect to grace periods to apply unused amounts in health FSAs to medical care expenses incurred through December 31, 2020, and unused amounts in dependent care assistance programs to dependent care expenses incurred through December 31, 2020.
  • Notice 2020-33 increases the $500 limit for unused amounts remaining in a health flexible spending arrangement (health FSA) that may be carried over into the following year by making the carryover amount 20 percent of the maximum salary reduction amount under § 125(i), which is indexed for inflation. This calculation had been the basis for the $500 limit under Notice 2013-71, but the $500 limit did not incorporate the indexing. Thus, for 2020, under this new notice the carryover amount will increase to $550.  The notice cross references Notice 2020-29 for guidance on how a § 125 cafeteria plan may be amended to allow prospective health FSA election changes for the 2020 calendar year. Notice 2020-29 provides relief in response to the COVID-19 pandemic that, among other things, permits employers to amend § 125 cafeteria plans to provide participants flexibility to change health FSA contribution elections at such times as the employer permits through the end of 2020, provided that any changes are applied only prospectively.

 

IRS Reminder of COVID-19 Credits

In their latest issue, IR-2020-89, the Internal Revenue Service is reminding businesses of the three new credits that are available to many businesses hit by COVID-19. To recap, these are:

Employee Retention Credit:

The employee retention credit is designed to encourage businesses to keep employees on their payroll. The refundable tax credit is 50% of up to $10,000 in wages paid by an eligible employer whose business has been financially impacted by COVID-19. The credit is available to all employers regardless of size, including tax-exempt organizations. There are only two exceptions: State and local governments and their instrumentalities and small businesses who take small business loans.

Qualifying employers must fall into one of two categories:

  1. The employer’s business is fully or partially suspended by government order due to COVID-19 during the calendar quarter.
  2. The employer’s gross receipts are below 50% of the comparable quarter in 2019. Once the employer’s gross receipts go above 80% of a comparable quarter in 2019, they no longer qualify after the end of that quarter.

Employers will calculate these measures each calendar quarter.

Paid Sick Leave Credit and Family Leave Credit:

The paid sick leave credit is designed to allow business to get a credit for an employee who is unable to work (including telework) because of Coronavirus quarantine or self-quarantine or has Coronavirus symptoms and is seeking a medical diagnosis. Those employees are entitled to paid sick leave for up to 10 days (up to 80 hours) at the employee’s regular rate of pay up to $511 per day and $5,110 in total.

The employer can also receive the credit for employees who are unable to work due to caring for someone with Coronavirus or caring for a child because the child’s school or place of care is closed, or the paid childcare provider is unavailable due to the Coronavirus. Those employees are entitled to paid sick leave for up to two weeks (up to 80 hours) at 2/3 the employee’s regular rate of pay or, up to $200 per day and $2,000 in total.

Employees are also entitled to paid family and medical leave equal to 2/3 of the employee’s regular pay, up to $200 per day and $10,000 in total. Up to 10 weeks of qualifying leave can be counted towards the family leave credit.

Employers can be immediately reimbursed for the credit by reducing their required deposits of payroll taxes that have been withheld from employees’ wages by the amount of the credit.

Eligible employers are entitled to immediately receive a credit in the full amount of the required sick leave and family leave, plus related health plan expenses and the employer’s share of Medicare tax on the leave, for the period of April 1, 2020, through Dec. 31, 2020. The refundable credit is applied against certain employment taxes on wages paid to all employees.

How will employers receive the credit?

Employers can be immediately reimbursed for the credit by reducing their required deposits of payroll taxes that have been withheld from employees’ wages by the amount of the credit.

Eligible employers will report their total qualified wages and the related health insurance costs for each quarter on their quarterly employment tax returns or Form 941 beginning with the second quarter. If the employer’s employment tax deposits are not sufficient to cover the credit, the employer may receive an advance payment from the IRS by submitting Form 7200, Advance Payment of Employer Credits Due to COVID-19.

Eligible employers can also request an advance of the Employee Retention Credit by submitting Form 7200.

The IRS has also posted Employee Retention Credit FAQs and Paid Family Leave and Sick Leave FAQs that will help answer questions.

Updates on the implementation of the Employee Retention Credit and other information can be found on the Coronavirus page of IRS.gov.

Related Items:

FS-2020-05, New Employee Retention Credit helps employers keep employees on payroll

Locking In Lock-In Letters in 2020

The Internal Revenue Service (IRS) has announced (in Notice 2020-03) that it is redesigning Withholding Compliance Lock-In Letters 2800C and 2808C to include new instructions as it relates to the redesigned Form W-4 for 2020.

The Tax Cuts and Job Act of 2017 (TCJA) changed withholding calculations by eliminating allowances, and in response, the IRS redesigned Form W-4, Employee’s Withholding Certificate for 2020. The Service is also redesigning the Withholding Compliance Lock-in Letters to reflect these changes. Effective January 1, 2020, TCJA mandated withholding calculations to consider credits, adjustments and deductions to factor a dollar value. The allowance withholding method and the TCJA withholding method use the same tax tables. For now, employers and payroll providers will use the allowance method as directed in the letters they receive to calculate employees’ withholding per pay period. After the lock-in letters redesign is complete, they should follow the new TCJA directions.

Withholding Compliance Lock-In Letters 2800C and 2808C are being redesigned to include the new lock-in rate instructions. Instead of providing the employer with the number of allowances by which withholding would be reduced, the letters will provide employers with the withholding status and withholding rate and any annual reductions to withholding or additional amount to withhold per pay period as a dollar value.

The format shown below is what the withholding instructions will look like on the redesigned 2800C lock-in letter:

  • Withholding Status (Filing Status): Single
  • Withholding rate: Form W-4, Step 2(C), Checkbox (higher withholding rate)
  • Annual reductions from withholding (Form W-4 line 3): $0.00
  • Other income (Form W-4 line 4(a)): $0.00
  • Deductions (Form W-4 line 4 (b)): $0.00

Additional amount to withhold per paycheck (Form W-4 line 4(c)): $0.00

The format shown below is what the withholding instructions will look like on the redesigned 2808C modification letter:

  • Withholding Status (Filing Status): Single (or Married or Head of Household)
  • Withholding rate: Standard withholding rate
  • Annual reductions from withholding (Form W-4 line 3): $0.00
  • Other income (Form W-4 line 4(a)): $0.00
  • Deductions (Form W-4 line 4 (b)): $0.00
  • Additional amount to withhold per paycheck (Form W-4 line 4(c)): $0.00

Until the redesigned Letters 2800C and 2808C are cleared for publishing, the IRS Withholding Compliance Unit will continue to issue the Withholding Compliance Lock-in Letters using the old allowance withholding method and employers should follow the letters as directed.

Employers who have already converted their payroll systems to the new 2020 withholding methods can input values to Step 4(a) and 4(b) as follows:

  • 4(a) – 12,900 for MFJ or 8,600 for all others; and
  • 4(b) – Number of allowances, as specified in the letter, multiplied by 4,300.

For additional guidance see the IRS webpage Updated Withholding Compliance Questions and Answers

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Corona Virus Update

Here are the updates to report since my last COVID-19 blog. First up, the Department of Labor is now, officially, enforcing the paid sick leave and paid family leave requirements of the Families First Act. There was a grace period for compliance and that has now passed.

 

The states are starting to get active with information on withholding taxes and especially on garnishments.  These include:

Withholding Tax:

  • Colorado:  nonresident emergency workers are not subject to withholding for state income tax.
  • Maryland: new guidance notes that the pandemic does not affect the withholding requirements for teleworkers.
  • Massachusetts:  compensation to a nonresident is still sourced to the state if the worker was performing those services within the state immediately before the pandemic and is now performing those services outside the state.

Garnishments: Pennsylvania and Washington are suspending or reducing wage garnishments or tax liens.

Most of the states have COVID-19 sections on their websites for either departments of labor or departments of revenue to assist employers with questions and compliance issues.

To keep up to date with the latest info on the COVID-19 payroll related news items, subscribe to our payroll e-news service, Payroll 24/7 for only $149 per year.

COVID-19 Update

The IRS (including the Social Security Administration) holds a monthly payroll profession phone meeting.  Usually on the first Thursday of the month, it was delayed this month due to the COVID-19 pandemic.  It was held yesterday.  As expected, the call centered around the latest updates for the pandemic on the new legislation. Here’s the recap for you:

1. There was a brief discussion on the updates the IRS has released, which include:

  • Notice 2020-21: discusses tax credits
  • Notice 2020-62: retention credits and FAQs
  • Notice 2020-54: HSA adjustments for the pandemic

2. It also discussed the latest forms to be released.  This includes the Form 7200 and its instructions.  This form is used to request tax credits in advance for the Families First Act and the CARES Act.

3. The Form 941 was discussed.  It is in the drafting stage and this draft version should be released by the end of next week.  This will be the form to use for the second quarter and beyond. It is being redesigned to allow for lines to report the various COVID-19 tax credits.  The form will go from two pages to three.  It is still unclear whether or not the Schedule B will be revamped as well.

4. Social Security Administration reminded the attendees that they are also on limited staffing so the employer 800# is not being staffed as it is not able to be accessed remotely by employees.  Employers are urged, instead, to use the email employers@ssa.gov  for any questions they may have.  This can be staffed from home by SSA staff members.  If you have questions on using the Business Services Online (BSO) you should email bso.support@ssa.gov.

The meeting for May will be on schedule and I will have any news from it posted by Friday of the same week.