Important New Guidance from IRS on Extended Due Date for Filing and Employer’s Funding of Emergency Sick Leave and Emergency Family and Medical Leave

On March 20, the IRS issued new Notice 2020-18 and Release 2020-57, updating several rules on coronavirus-related tax filing and payment issues.

NOTICE 2020-18

This Notice expands upon the relief granted in Notice 2020-17 and applies to an Affected Taxpayer. This term describes any “person” as defined under the Internal Revenue Code, which includes an individual, trust, estate, partnership, association, company or corporation.

An Affected Taxpayer’s April 15, 2020, due date for both filing a federal income tax return and making federal income tax payments is automatically postponed to July 15, 2020 (previous guidance only extended the date that payment was due). Forms 4868 or 7004 Requests for Extension of Time to File a return are not required in order to get the benefit of this automatic filing date extension.

The new guidance significantly changes the amount of tax payments that can be deferred until July 15. Prior guidance limited the amount to $10 million for a C corporation and $1 million for other filers. Under the new guidance, there is no limitation on the amount of the payment that may be postponed. Any amounts due will not be subject to interest, penalties or additions to tax through July 15, 2020.

IR 2020-57

The Treasury Department, IRS and Department of Labor issued a Release providing some guidance on how employers can begin to take advantage of the two new refundable payroll tax credits. An employer with fewer than 500 employees, subject to the new Sick Leave or Family and Medical Leave payments related to COVID-19, would potentially have to make these payments from its business funds while waiting to receive the corresponding refundable payroll tax credit after the filing of its quarterly payroll tax returns. The Release provides that:

1. Where a refund is owed, IRS will send the refund as quickly as possible;
2. There will be a 30-day non-enforcement period for “good faith” compliance efforts;
3. Businesses can retain and access funds which would otherwise be paid to the IRS in payroll taxes and obtain an expedited advance from IRS by submitting a streamlined claim form that will be released next week. The expectation is that these claims will be processed within two weeks or less.

Employers are generally required to pay to IRS:

1. Withheld employee federal income tax and Social Security and Medicare taxes;
2. Employer share of Social Security and Medicare taxes.

Under guidance which will be released next week, eligible employers paying Emergency Sick Leave or Emergency Family and Medical Leave under the recently created coronavirus legislation will be able to retain an amount of these taxes equal to the payments made eligible for credit. The retained amounts can be from the employer’s share of payroll taxes and the employee’s share of federal income, Social Security and Medicare withholding taxes.

The Release contains two examples of this:

1. If an eligible employer pays $5,000 in covered sick leave to certain employees and is otherwise required to deposit $8,000 in payroll taxes, including taxes withheld from all employees, deposits can be reduced to $3,000 on its next regular deposit date.
2. If the eligible employer pays $10,000 in covered sick leave, it can reduce the deposit to zero and make a claim under the expedited procedure for $2,000.

The Release also discusses the Small Business Exemption from the Emergency and Family Leave payments. While employers with fewer than 500 employees are covered, the law provides that those with fewer than 50 employees are eligible for an exemption when it would jeopardize the ability of the business to survive as a going concern. This sounds like an application process subject to DOL approval, but main business groups have been lobbying the DOL to obtain blanket exemptions for their small industry members. This release says that DOL will provide emergency guidance and rulemaking to “clearly articulate this standard.”

STATES

The recent IRS changes may not apply to state tax filings. States are currently processing responses to the recent IRS changes.

There are many unanswered questions related to these issues. We will be monitoring the developments and will provide information as it becomes available. If you have any questions, do not hesitate to contact your Marcum tax professional.

Coronavirus Resource Center

Have more questions about the impact of the coronavirus on your business? Visit Marcum’s Coronavirus Resource Center for up-to-date information.