On August 28, 2020, the IRS and U.S. Treasury released Notice 2020-65 issuing official guidance regarding President Trump’s deferral of payroll taxes. The original order, issued August 8, called for a deferral of the employee’s share of Social Security taxes for the period of September 1 through December 31, 2020, for eligible employees.
The new three-page notice officially clarified that the tax collection obligation remains with the employer (Affected Taxpayer) by stating “employers that are required to withhold and pay the employee share of social security tax under section 3102(a) or the railroad retirement tax equivalent under section 3202(a) are affected.” Under this guidance, employers can opt to not withhold Social Security payroll taxes from their employees’ paychecks from September through December 2020.
The guidance explains that the deferral is limited to employees whose bi-weekly wages or compensation are less than $4,000, calculated on a pre-tax basis, or the equivalent amount for other pay periods. Any employee whose bi-weekly wages or compensation are $4,000 or more for the same period will not be eligible for the deferral. There is no guidance regarding any application of this deferral to self-employed individuals.
The notice also clarifies that any deferred taxes must to be remitted to the IRS by the employer during the period beginning on January 1, 2021 and ending on April 30, 2021. These deferred Social Security taxes will need to be withheld from employees’ paychecks during this period, which will increase employees’ taxes withheld during this same period from 6.2% to 12.4%.
It is important to recognize that the IRS notice states that because the liability still lies with the employer, it is the employer’s responsibility to withhold these taxes previously deferred and to “make arrangements to otherwise collect the total Applicable Taxes from the employee.” If the employer elects to defer these taxes, it would be wise to have arrangements in place for collection of any deferred taxes, such as collecting taxes from a final paycheck or repayment from the employee. Employers must also consider state wage payment laws and other limitations that may be applicable.
Without additional guidance, the notice leaves several questions unanswered such as:
- If an employee is no longer employed and the employer is unable to collect the tax, how will this paid tax by the employer be treated on the employees’ W-2?
- Can employees elect between deferral or no deferral? If so, how will this be managed?
- How will this tax be collected from the employee in 2021? Does it take priority over other deductions?
It is very important for employers to weigh their options regarding this notice and communicate accordingly with their employees.