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While many Americans will remember January 20, 2017 as the day the 45th President of the United States was sworn into office, employee benefits experts will also remember it as the day the IRS Office of Chief Counsel (OCC) released this memorandum that clarifies, among other things, the tax treatment of benefits paid by fixed-indemnity plans.

Fixed indemnity plans are generally voluntary benefits employers offer to complement or supplement group health insurance, such as a hospital indemnity plan that pays a fixed dollar amount for days in the hospital. The plans do not meet minimum essential coverage standards and are exempt from the Affordable Care Act.

In the memorandum, the IRS clarified that if an employer pays the fixed-indemnity premiums on behalf of employees and the value is excluded from employees’ gross income and wages or allows employees to pay premiums pre-tax through the employer’s cafeteria plan, the amount of any benefits paid to an employee under the plan will be included in the employee’s gross income and wages. On the other hand, if employees pay the premiums with after-tax dollars, then the benefits are not included in the employees’ gross income and wages.

While this creates a tax burden for the employee, it also creates a burden for employers, as they are tasked with determining whether an employee has received a benefit and the amount of the benefit to determine wages and applicable employment taxes.

Employers that offer employer-paid fixed indemnity plans or allow employees to pay for plans pre-tax are encouraged to work with their counsel, broker, carrier, or other trusted advisor to address their current practices and determine if any changes should be made.

By Nicole Quinn-Gato, JD
Originally published by www.thinkhr.com

Cafeteria plans, or plans governed by IRS Code Section 125, allow employers to help employees pay for expenses such as health insurance with pre-tax dollars. Employees are given a choice between a taxable benefit (cash) and two or more specified pre-tax qualified benefits, for example, health insurance. Employees are given the opportunity to select the benefits they want, just like an individual standing in the cafeteria line at lunch.

Only certain benefits can be offered through a cafeteria plan:

  • Coverage under an accident or health plan (which can include traditional health insurance, health maintenance organizations (HMOs), self-insured medical reimbursement plans, dental, vision, and more);
  • Dependent care assistance benefits or DCAPs
  • Group term life insurance
  • Paid time off, which allows employees the opportunity to buy or sell paid time off days
  • 401(k) contributions
  • Adoption assistance benefits
  • Health savings accounts or HSAs under IRS Code Section 223

Some employers want to offer other benefits through a cafeteria plan, but this is prohibited. Benefits that you cannot offer through a cafeteria plan include scholarships, group term life insurance for non-employees, transportation and other fringe benefits, long-term care, and health reimbursement arrangements (unless very specific rules are met by providing one in conjunction with a high deductible health plan). Benefits that defer compensation are also prohibited under cafeteria plan rules.

Cafeteria plans as a whole are not subject to ERISA, but all or some of the underlying benefits or components under the plan can be. The Patient Protection and Affordable Care Act (ACA) has also affected aspects of cafeteria plan administration.

Employees are allowed to choose the benefits they want by making elections. Only the employee can make elections, but they can make choices that cover other individuals such as spouses or dependents. Employees must be considered eligible by the plan to make elections. Elections, with an exception for new hires, must be prospective. Cafeteria plan selections are considered irrevocable and cannot be changed during the plan year, unless a permitted change in status occurs. There is an exception for mandatory two-year elections relating to dental or vision plans that meet certain requirements.

Plans may allow participants to change elections based on the following changes in status:

  • Change in marital status
  • Change in the number of dependents
  • Change in employment status
  • A dependent satisfying or ceasing to satisfy dependent eligibility requirements
  • Change in residence
  • Commencement or termination of adoption proceedings

Plans may also allow participants to change elections based on the following changes that are not a change in status but nonetheless can trigger an election change:

  • Significant cost changes
  • Significant curtailment (or reduction) of coverage
  • Addition or improvement of benefit package option
  • Change in coverage of spouse or dependent under another employer plan
  • Loss of certain other health coverage (such as government provided coverage, such as Medicaid)
  • Changes in 401(k) contributions (employees are free to change their 401(k) contributions whenever they wish, in accordance with the administrator’s change process)
  • HIPAA special enrollment rights (contains requirements for HIPAA subject plans)
  • COBRA qualifying event
  • Judgment, decrees, or orders
  • Entitlement to Medicare or Medicaid
  • Family Medical Leave Act (FMLA) leave
  • Pre-tax health savings account (HSA) contributions (employees are free to change their HSA contributions whenever they wish, in accordance with the their payroll/accounting department process)
  • Reduction of hours (new under the ACA)
  • Exchange/Marketplace enrollment (new under the ACA)

Together, the change in status events and other recognized changes are considered “permitted election change events.”

Common changes that do not constitute a permitted election change event are: a provider leaving a network (unless, based on very narrow circumstances, it resulted in a significant reduction of coverage), a legal separation (unless the separation leads to a loss of eligibility under the plan), commencement of a domestic partner relationship, or a change in financial condition.

There are some events not in the regulations that could allow an individual to make a mid-year election change, such as a mistake by the employer or employee, or needing to change elections in order to pass nondiscrimination tests. To make a change due to a mistake, there must be clear and convincing evidence that the mistake has been made. For instance, an individual might accidentally sign up for family coverage when they are single with no children, or an employer might withhold $100 dollars per pay period for a flexible spending arrangement (FSA) when the individual elected to withhold $50.

Plans are permitted to make automatic payroll election increases or decreases for insignificant amounts in the middle of the plan year, so long as automatic election language is in the plan documents. An “insignificant” amount is considered one percent or less.

Plans should consider which change in status events to allow, how to track change in status requests, and the time limit to impose on employees who wish to make an election.

Cafeteria plans are not required to allow employees to change their elections, but plans that do allow changes must follow IRS requirements. These requirements include consistency, plan document allowance, documentation, and timing of the election change. For complete details on each of these requirements—as well as numerous examples of change in status events, including scenarios involving employees or their spouses or dependents entering into domestic partnerships, ending periods of incarceration, losing or gaining TRICARE coverage, and cost changes to an employer health plan—request UBA’s ACA Advisor, “Cafeteria Plans: Qualifying Events and Changing Employee Elections”.

By Danielle Capilla
Originally published by www.ubabenefits.com

Employer-paid life insurance can be an important part of protecting your family in the event that you die prematurely. Companies offer the program on top of other benefits, such as health insurance. The coverage is generally term insurance, meaning there is no investment or cash-value component. If you pass on unexpectedly, depriving your family not only of your presence but also your income, your dependents will be glad you signed up for your workplace’s life insurance benefit.

Basics

Employer-paid term life insurance comes as an option through some employee benefits packages. It works, in a sense, like group health insurance: Rather than buying a separate policy for each employee, the employer buys a single policy that covers all workers who participate, according to Insurance.com. Thus, the employer pays one premium, not a separate premium for each employee. You may be responsible for a part of the premium, too. Typically, the death benefit is one or two times your yearly salary, according to the American Institute of Certified Public Accountants.

Advantages

Life insurance acquired through your employer is likely to be cheaper than what you can buy on the open market, since your employer is likely to cover at least part of the premiums, according to Insurance.com. Additionally, you do not have to undergo individual underwriting, which means you can get coverage even if you have a serious health condition, like heart disease, that would, according to Insure.com, get you denied or make you have to pay high premiums if you were buying on the open market.

Warning

Depending exclusively on employer-paid life insurance to protect your family has some disadvantages, according to Insurance.com. The main one is that if you leave your job, you stand a high chance of losing your insurance. Depending on your age and health status at that time, according to Insurance.com, you may or may not be able to get new insurance at a reasonable rate. For that reason, it is best to carry employer group insurance only as a supplement to other coverage. Another drawback to such coverage is that the amount of insurance available to you is likely to be limited, though some plans allow you to get more coverage for an additional fee.

Considerations

Some employer-paid life insurance plans, according to the American Institute of Certified Public Accountants’ 360 Degrees of Financial Literacy website, can follow you even when you leave your job. But most employees decide against doing this for the reason that the “conversion premiums” tend to be higher than prices for comparable individual policies. Typically, according to the site, “only those who are otherwise uninsurable take advantage of this conversion option.”

Taxes

The Internal Revenue Service taxes life insurance that has a value above $50,000. It uses a formula that takes into account your age and the amount of your death benefit to determine the taxable value per month.

Originally published by www.livestrong.com

Question: If an employee has a small health flexible spending account (FSA) balance with a carryover to the next year, and the employee chooses not to participate in the new FSA year, can the employer force the employee to use those funds so as not to incur additional administrative fees in the next plan year?

Answer: An employer can prevent “perpetual carryovers” by carefully drafting the cafeteria plan document with respect to carryover amounts. IRS guidance allows carryovers to be limited to individuals who have elected to participate in the health FSA in the next plan year. Health FSAs may also require that carryover amounts be forfeited if not used within a specified period of time, such as one year. Note that this plan design requires additional administration (to track the time limit for each carryover dollar, for instance) as well as ordering rules (e.g., will carryovers be used first?), so you will need to carefully review the cafeteria plan document. Under no circumstances are amounts returned to participants.

According to IRS guidance, a health FSA may limit the availability of the carryover of unused amounts (subject to the $500 limit) to individuals who have elected to participate in the health FSA in the next year, even if the ability to participate in that next year requires a minimum salary reduction election to the health FSA for that next year. For example, an employer sponsors a cafeteria plan offering a health FSA that permits up to $500 of unused health FSA amounts to be carried over to the next year in compliance with Notice 2013-71, but only if the employee participates in the health FSA during that next year. To participate in the health FSA, an employee must contribute a minimum of $60 ($5 per calendar month). As of December 31, 2016, Employee A and Employee B each have $25 remaining in their health FSA. Employee A elects to participate in the health FSA for 2017, making a $600 salary reduction election. Employee B elects not to participate in the health FSA for 2017. Employee A has $25 carried over to the health FSA for 2017, resulting in $625 available in the health FSA. Employee B forfeits the $25 as of December 31, 2016 and has no funds available in the health FSA thereafter. This arrangement is a permissible health FSA carryover feature under Notice 2013171. The IRS also clarifies that a health FSA may limit the ability to carry over unused amounts to a maximum period (subject to the $500 limit). For example, a health FSA can limit the ability to carry over unused amounts to one year. Thus, if an individual carried over $30 and did not elect any additional amounts for the next year, the health FSA may require forfeiture of any amount remaining at the end of that next year.

Originally published by www.thinkhr.com

Question: For Form I-9 purposes, can we accept a new employee’s Social Security card that shows a maiden name rather than her married name?

Answer: The quick answer is yes. The Social Security card has the individual’s legal name. She must complete the Form W-4 and Form I-9 with her legal name (as listed on the Social Security card). If, on its face, the card reasonably appears to be genuine and relate to the person presenting it, then you must accept it. Additionally, a signature on the card is not required for it to be valid, so long as the Social Security card does not state ““NOT VALID FOR EMPLOYMENT,” “VALID FOR WORK ONLY WITH INS AUTHORIZATION,” or “VALID FOR WORK ONLY WITH DHS AUTHORIZATION.” Additionally, metal or plastic reproductions of a Social Security card are not acceptable for Form I-9 purposes.

Of note, an employer should not use the Social Security Number Verification Service (SSNVS) to audit an employee’s Form I-9. According to the SSNVS handbook, any notification about a mismatch makes no statement about an employee’s immigration status. Rather, it simply indicates an error in either the employer’s records or Social Security Administration’s records and should not be used as a basis to take adverse action against an employee. In other words, the SSNVS is not intended to be used to verify employment authorization in connection with the Form I-9 process.

Originally published by www.thinkhr.com

On November 18, 2016, the IRS released Notice 2016-70 to extend the due date for employers to furnish Form 1095-C or 1095-B under the Affordable Care Act’s employer reporting requirement. Employers will have an extra 30 days to prepare and distribute the 2016 form to individuals. The due dates for filing forms with the IRS are not extended.

Background

Applicable large employers (ALEs), who generally are entities that employed 50 or more full-time and full-time-equivalent employees in 2015, are required to report information about the health coverage they offered or did not offer to certain employees in 2016. To meet this reporting requirement, the ALE will furnish Form 1095-C to the employee or former employee and file copies, along with transmittal Form 1094-C, with the IRS.

Employers, regardless of size, that sponsored a self-funded (self-insured) health plan providing minimum essential coverage in 2016 are required to report coverage information about enrollees. To meet this reporting requirement, the employer will furnish Form 1095-B to the primary enrollee and file copies, along with transmittal Form 1094-B, with the IRS. Self-funded employers who also are ALEs may use Forms 1095-C and 1094-C in lieu of Forms 1095-B and 1094-B.

Extended Due Dates

Specifically, Notice 2016-70 extends the following due dates:

  • The deadline for furnishing 2016 Form 1095-C, or Form 1095-B, if applicable, to employees and individuals is March 2, 2017 (extended from January 31, 2017).
  • The deadline for filing copies of the 2016 Forms 1095-C, along with transmittal Form 1094-C (or copies of Forms 1095-B with transmittal Form 1094-B), if applicable, with the IRS is:
    • If filing by paper, February 28, 2017.
    • If filing electronically, March 31, 2017.

Prior to the IRS announcement, a process existed for employers to file Form 8809 to request a 30-day extension of the due date to furnish forms to individuals. Notice 2016-70 explains that the new extended due date applies automatically so individual requests are not needed. Employers that had already submitted extension requests will not receive a reply.

More Information

Notice 2016-70 also provides guidance to taxpayers who do not receive a Form 1095-B or 1095-C by the time they file their 2016 individual tax return.

Lastly, the IRS encourages employers, insurers, and other reporting entities to furnish forms to individuals and file reports with the IRS as soon as they are ready.

Originally published by www.thinkhr.com

A cafeteria plan is an employer-provided written plan that offers employees the opportunity to choose between at least one permitted taxable benefit and at least one qualified employee benefit. There is no federal law that requires employers to establish cafeteria plans; however, some states require employers to have cafeteria plans for employees to pay for health insurance on a pre-tax basis.

To comply with Internal Revenue Code Section 125, a cafeteria plan must satisfy a set of structural requirements and a set of nondiscrimination rules. Violations of the structural requirements will disqualify the entire plan so that no employee obtains the favorable tax benefits under Section 125, even if the plan meets the nondiscrimination rules. Violations of the nondiscrimination rules have adverse consequences only on the group of employees in whose favor discrimination is prohibited.

A cafeteria plan must pass an eligibility test, a contributions and benefits test, and a concentration test for highly compensated individuals to receive the tax benefits of Section 125. Failure to meet these nondiscrimination requirements has no effect on non-highly compensated cafeteria plan participants.

The IRS issued proposed cafeteria plan regulations on August 6, 2007. Final regulations have not been issued. According to the proposed regulations, taxpayers may rely on the proposed regulations for guidance pending the issuance of final regulations.

The proposed cafeteria plan regulations make it clear that the plan must meet the nondiscrimination tests. Also, the plan must not discriminate in favor of highly compensated participants in its operation. For example, a plan might be considered discriminatory if adoption assistance is added to the plan when the CEO is in the process of adopting a child and adoption assistance is dropped when the adoption is final.

Be aware that Section 125 nondiscrimination rules are separate from and unrelated to Section 105(h) nondiscrimination rules. Further, Section 125 nondiscrimination rules apply to all cafeteria plans regardless of their status as fully insured, self-funded, church plan, or governmental plan.

As a practical matter, these nondiscrimination rules prohibit executive health plans offered through a cafeteria plan.

Nondiscrimination testing can help employers avoid rule violations. But there are a number of definitions of key terms used in the tests that must be understood prior to completing the tests:

Highly Compensated Individuals. Highly compensated individuals are defined as:

  • Officers
  • Five percent shareholders
  • Highly compensated employees (HCEs)
  • Spouses or dependents of any of the preceding individuals

Highly Compensated Participant. A highly compensated participant is a highly compensated individual who is eligible to participate in the cafeteria plan.

Officers. Officers include any individual who was an officer of the company for the prior plan year (or current plan year in the case of the first year of employment).

Five Percent Shareholders. Five percent shareholders include any individual who – in either the preceding plan year or current plan year – owns more than five percent of the voting power or value of all classes of stock of the employer, determined without attribution.

Highly Compensated. Highly compensated means any individual or participant who – for the prior plan year or the current plan year in the case of the first year of employment – had annual compensation from the employer in excess of the compensation amount specified in the Internal Revenue Code and, if elected by the employer, was also in the top-paid group of employees for the year. For 2016, the applicable compensation amount is $120,000.

Key Employee. A key employee is a participant who, at any time during the plan year, is one of the following:

  • An officer with annual compensation greater than an indexed amount ($170,000 for 2016)
  • A five percent owner of the employer
  • A one percent owner having compensation in excess of $150,000

For comprehensive information on the eligibility test—including the safe harbor and unsafe harbor percentages and example scenarios—as well as the contributions and benefits test, and safe harbors, request UBA’s Compliance Advisor, “Nondiscrimination Rules for Cafeteria Plans”.

Originally published by www.ubabenefits.com

Minimum essential coverage (MEC) is the type of coverage that an individual must have under the Patient Protection and Affordable Care Act (ACA). Employers that are subject to the ACA’s shared responsibility provisions (often called “play or pay”) must offer MEC coverage that is affordable and provides minimum value.

In the fall of 2015 the IRS issued Notice 2015-68 stating it was planning to propose regulations on reporting MEC that would, among other things, require health insurance issuers to report coverage in catastrophic health insurance plans, as described in section 1302(e) of the ACA, provided through an Affordable Insurance Exchange (an Exchange, also known as a Health Insurance Marketplace). The notice also covered reporting of “supplemental coverage” such as a health reimbursement arrangement (HRA) in addition to a group health plan.

Recently, the IRS released the anticipated proposed regulations, incorporating the guidance given in Notice 2015-68. These regulations are generally proposed to apply for taxable years ending after December 31, 2015, and may be relied on for calendar years ending after December 31, 2013.

The proposed regulations provide that:

  1. Reporting is required for only one MEC plan or program if an individual is covered by multiple plans or programs provided by the same provider.
  2. Reporting generally is not required for an individual’s eligible MEC only if the individual is covered by other MEC for which section 6055 reporting is required.

These rules would apply month by month and individual by individual. Once finalized, the regulations would adopt the same information provided in the final instructions for reporting under sections 6055 and 6056 of the ACA.

For examples under the first rule and more detail on the second rule, as well as how to avoid penalties, view UBA’s ACA Advisor, “Reporting Minimum Essential Coverage”.

Originally published by www.ubabenefits.com

Since the current version of the Form I-9, Employment Eligibility Verification, expired on March 31, 2016, employers have been awaiting a new, updated form. On August 25, 2016, the federal Office of Management and Budget (OMB) approved a revised Form I-9. Consequently, the U.S. Citizenship and Immigration Services (USCIS) has 90 days to update the form and must publish a revised form by November 22, 2016. According to the OMB Notice of Action, this new Form I-9 will expire on August 31, 2019 — a three-year validation period similar to previous validation periods. In the meantime, employers may continue using the current version of Form I-9 (with a revision date of 03/08/2013 N) until January 21, 2017. After January 21, 2017, all previous versions of Form I-9 will be invalid.

Changes to the Form

Many of the Form I-9 changes were designed to help with completing the form and assist in reducing technical errors. For instance, new smart error-checking features have been added when the form is completed using an Adobe PDF viewer or application. Some other new features include:

  • Addition of a supplement where more than one preparer or translator is used to complete Section 1 (translator certification where an employee must check that he or she did or did not use a preparer or translator in completing the form).
  • Controls within the form for users to electronically access the instructions, print the form, and clear the form.
  • Drop-down calendars and lists.
  • Embedded instructions for completing each field.
  • Provision of additional spaces to enter multiple preparers and translators.
  • Quick-response matrix barcode (QR code) that generates once the form is printed and may be used to streamline audit processes.
  • Rather than all other names used, only requiring employees to provide other last names used in Section 1.
  • Removing the requirement that aliens authorized to work provide both foreign passport information and Form I-94 in Section 1 after attestation of such status.
  • Separating instructions from the form.
  • Specific area to enter additional information that employers are currently required to notate in the form’s margins.
  • Validations on certain fields to ensure information is entered correctly.

The new Form I-9 instructions also provide revised abbreviations for use on the form. Employers should use these abbreviations although longer, commonly used abbreviations may still be acceptable. For example, “Permanent Resident Card” is now “Perm. Resident Card (Form I-551).”

Related Rulemaking

Also important, the federal Office of Special Counsel (OSC) has proposed to revise regulations implementing a section of the Immigration and Nationality Act concerning unfair immigration-related employment practices. In these revised regulations, the OSC proposes a new definition of discrimination along with a revision to the language related to unfair documentary practices. The proposed definition clarifies that discrimination is the act of intentionally treating an individual differently, regardless of the explanation for the discrimination, and regardless of whether it is because of animus or hostility, to include the process related to completing the Form I-9.

There is also a proposed unfair documentary practices portion to prohibit unfair immigration-related employment practices. It would replace the current document abuse provision, which prohibits requiring more or different documents than presented if the employee presented documents from the list of acceptable documents. This also goes to an employer’s rejection of employee-completed Section 1 — which may be considered a discriminatory employment practice.

Currently, the USCIS provides this guidance in the prevention of discrimination in the Form I-9 process.

What to Do

As a response to the many pending changes to the Form I-9 and related laws, the next step for employers is to review current policies and procedures. For instance, employers will still be permitted to print and complete the new Form I-9 by hand, but that may not be a permanent option. In fact, employers and employees may elect to fill out any or all sections of the form by computer, by hand (printed), or a combination of both.

ThinkHR will keep you informed as more information is released. The USCIS suggests that employers visit I-9 Central and subscribe to GovDelivery to ensure receipt of the latest news on the revised Form I-9.

Originally published by www.thinkhr.com

0624UBAApplicable large employers and self-funded employers of all sizes have now completed the first round of required IRS reporting under the Patient Protection and Affordable Care Act (ACA). The ACA requires individuals to have health insurance, while applicable large employers (ALEs) are required to offer health benefits to their full-time employees. In order for the IRS to verify that (1) individuals have the required minimum essential coverage, (2) individuals who request premium tax credits are entitled to them, and (3) ALEs are meeting their shared responsibility (play or pay) obligations, employers with 50 or more full-time or full-time equivalent employees and insurers were required to report on the health coverage they offered. Similarly, insurers and employers with less than 50 full time employees but that have a self- funded plan also have reporting obligations. All of this reporting is done on IRS Forms 1094-B, 1095-B, 1094-C and 1095-C.

Now that the first set of forms has been completed, many employers are wondering what the next steps are. Employers that did not fulfill all of their obligations under the employer shared responsibility provision (play or pay) might owe a penalty to the IRS. A penalty will be owed in regard to the 2015 plan year if:

  • The employer does not offer health coverage or offers coverage to fewer than 70 percent of its full-time employees and the dependents of those employees, and at least one of the full-time employees receives a premium tax credit to help pay for coverage on a Marketplace; or
  • The employer offers health coverage to all or at least 70 percent of its full-time employees, but at least one full-time employee receives a premium tax credit to help pay for coverage on a Marketplace, which may occur because the employer did not offer coverage to that employee or because the coverage the employer offered that employee was either unaffordable to the employee or did not provide minimum value.

As of March 2016, the only information from the IRS on the payment of these penalties is as follows:

The IRS will adopt procedures that ensure employers receive certification that one or more employees have received a premium tax credit. The IRS will contact employers to inform them of their potential liability and provide them an opportunity to respond before any liability is assessed or notice and demand for payment is made. The contact for a given calendar year will not occur until after the due date for employees to file individual tax returns for that year claiming premium tax credits and after the due date for applicable large employers to file the information returns identifying their full-time employees and describing the coverage that was offered (if any).

If it is determined that an employer is liable for an Employer Shared Responsibility payment after the employer has responded to the initial IRS contact, the IRS will send a notice and demand for payment. That notice will instruct the employer on how to make the payment. Employers will not be required to include the Employer Shared Responsibility payment on any tax return that they file.

 Employers will be notified if an employee who either was not offered coverage, or who was not offered affordable, minimum value, or minimum essential coverage, goes to the Exchange and gets a subsidy or “advance premium tax credit.” To understand this “Employer Notice Program” the appeals process, and how affordability must be documented, request UBA’s newest ACA Advisor, “IRS reporting Now What?”

Originally published by United Benefit Advisors – Read More