Congratulations to Steven P. Johnson on his election to the Morgan Lewis partnership in our employee benefits and executive compensation practice! Effective October 1, 2019, Steve, who is resident in Washington, DC, will join 29 other newly elected partners from 12 offices and nine practices. For information about all of the firm’s newly elected partners, please see Morgan Lewis Elects 30 New Partners.

The IRS continues to aggressively audit how free meals and snacks offered to employees in many workplaces are treated for federal tax purposes. Recent IRS guidance in this respect is Technical Advice Memorandum 201903017 (the TAM) published this spring. The TAM, which includes both employer-favorable and IRS-favorable provisions, is essentially the first guidance on employer-provided meals and snacks that the IRS has published in nearly two decades. (We previously discussed changes made to the on-site meal and snack deduction rules in the 2017 Tax Cuts and Jobs Act for federal income tax purposes.)

The Tax Cuts and Jobs Act (TCJA) amended Section 217 of the Internal Revenue Code (Code) to suspend the deduction for moving expenses from 2018 through 2025. This change has a subtle yet meaningful impact on many tax-qualified retirement plans.

When testing qualified plans for compliance with the Code’s coverage and nondiscrimination requirements, plans are required to use a definition of “compensation” that complies with Code Section 414(s). The default definition of compensation in Section 414(s) is “compensation” as it is defined in Code Section 415(c)(3), which includes nondeductible moving expenses, but excludes deductible moving expenses. The TCJA makes all moving expenses “nondeductible,” which means that all moving expenses should be included in compensation for plans that use the default Section 415 definition for testing purposes.

Internal Revenue Service Notice 2019-09 gives tax-exempt organizations interim guidance on how to identify covered employees, calculate remuneration, and allocate excise tax under Section 4960. Please see our recent LawFlash on this interim guidance, and reach out to the LawFlash authors or your Morgan Lewis contacts if you have additional questions.

Companies that provide meals and snacks on their “business premises,” as well as manufacturers of snack or breakroom products, will be particularly interested in a possible expansion of what many have assumed would be a 50% disallowance of deductions for all coffee, doughnuts, fruit, soft drinks, candy, and similar items, effective after 2017. A gap in the regulations points to the possibility that breakroom snacks that are considered de minimis fringe benefits provided on business premises might remain 100% deductible.

The Internal Revenue Service has issued Notice 2018-68 providing guidance on changes in Code Section 162(m) made by the Tax Cuts and Jobs Act of 2017. The Notice has some good news and some not-so-good news, but on balance is helpful, particularly in continuing to respect state law in identifying a “written binding contract” under the grandfather rules.

To learn more, please read our LawFlash.

There are several qualification requirements for an employer’s cash or deferred arrangement under Section 401(k) of the Internal Revenue Code of 1986, as amended (Code). One such requirement is that benefits may not be contingent (either directly or indirectly) on an employee’s election to make (or not make) elective contributions to the employer’s arrangement. This requirement is frequently referred to as the “contingent benefit rule.”[1] The Code includes an express exception to the contingent benefit rule for employer matching contributions. Matching contributions may be conditioned upon an employee’s election to make elective contributions.

We previously reminded you about the deadline for the new Pennsylvania non-resident withholding and reporting requirements which apply to anyone who makes payments of Pennsylvania source non-employee compensation or business income to a non-resident individual or a disregarded entity that has a nonresident member. The effective date of this rule was delayed from January 1, 2018 to July 1, 2018, but is quickly approaching. There are current challenges to the rule that may further delay or invalidate its enforcement. To learn more about this rule and the necessary compliance, please read our recent LawFlash.

Act 43 of 2017 (the Act) created a new withholding obligation at the current applicable income tax rate (3.07%) for payors of Pennsylvania source income to non-residents if the total amount of such payments is at least $5,000. (Withholding is optional for payments of less than $5,000.) The Act also expanded the requirements with respect to when a copy of Federal Form 1099-MISC must be filed with the Pennsylvania Department of Revenue (DOR).

Beginning July 1, 2018 (the Act’s effective date has been delayed from January 1, 2018), anyone who makes payments of Pennsylvania source non-employee compensation or business income to a non-resident individual or a disregarded entity that has a nonresident member is required to withhold from such payments at the applicable income tax rate. Non-employee compensation typically includes a payment if it is made to someone who is not an employee for services provided in the ordinary course of a trade or business. (This includes payments to independent contractors and non-resident directors.) For example, if a Pennsylvania business has a non-resident serving as a director, the business is required to withhold if services were rendered within Pennsylvania and it will be paying the individual more than $5,000 annually. Where the total amount of payments to be made in a year is uncertain to exceed $5,000, the DOR encourages businesses to withhold taxes from all payments made to the non-resident.

After a big push by employers and various industry groups, the IRS issued Rev. Proc. 2018-27 on April 26, 2018, to allow employers to use $6,900 as the health savings account (HSA) contribution limit for those with family coverage under a high deductible health plan for 2018.

As background, the IRS lowered the 2018 contribution limit in early March 2018 for family coverage from $6,900 to $6,850 due to a change in the inflation adjustment calculations for 2018 under the Tax Cuts and Jobs Act.