Tips vs Service Charges: An IRS Reminder

The IRS wants to make sure that employers understand tax ramifications of the various payments that they make to employees or that their employees might receive.  So the IRS has posted a reminder for employers when it comes to tips verses service charges.  The key difference between the two categories affect the taxation for employees as well as the reporting. So-called “automatic gratuities” and any amount imposed on the customer by the employer are service charges, not tips.  Service charges are generally wages, and they are reported to the employee and the IRS in a manner similar to other wages. On the other hand, special rules apply to both employers and employees for reporting tips. Employers should make sure they know the difference and how they report each to the IRS.

What are tips? Tips are discretionary (optional or extra) payments determined by a customer that employees receive from customers. They include:

  • Cash tips received directly from customers.
  • Tips from customers who leave a tip through electronic settlement or payment. This includes a credit card, debit card, gift card, or any other electronic payment method.
  • The value of any noncash tips, such as tickets, or other items of value.
  • Tip amounts received from other employees paid out through tip pools or tip splitting, or other formal or informal tip sharing arrangements.

Four factors are used to determine whether a payment qualifies as a tip. Normally, all four must apply. To be a tip:

  • The payment must be made free from compulsion;
  • The customer must have the unrestricted right to determine the amount;
  • The payment should not be the subject of negotiations or dictated by employer policy; and
  • Generally, the customer has the right to determine who receives the payment.

If any one of these doesn’t apply, the payment is likely a service charge.

What are service charges? Amounts an employer requires a customer to pay are service charges. This is true even if the employer or employee calls the payment a tip or gratuity. Examples of service charges commonly added to a customer’s check include:

  • Large dining party automatic gratuity
  • Banquet event fee
  • Cruise trip package fee
  • Hotel room service charge
  • Bottle service charge (nightclubs, restaurants)

Generally, service charges are reported as non-tip wages paid to the employee. Some employers keep a portion of the service charges. Only the amounts distributed to employees are non-tip wages to those employees.

All cash tips and noncash tips should be included in an employee’s gross income and subject to federal income taxes.ployers are required to retain employee tip reports, withhold income taxes and the employee share of Social Security and Medicare taxes from the wages paid, and withhold income taxes and the employee share of Social Security and Medicare taxes on reported tips from wages (other than tips) or from other funds provided by the employee. In addition, employers are required to pay the employer share of Social Security and Medicare taxes based on the total wages paid to tipped employees as well as the reported tip income.  Employers must report income tax and Social Security and Medicare taxes withheld from their employees’ wages, along with the employer share of Social Security and Medicare taxes, on Form 941, Employer’s Quarterly Federal Tax Return, and deposit these taxes in accordance with federal tax deposit requirements.Tips reported to the employer by the employee must be included in Box 1 (Wages, tips, other compensation), Box 5 (Medicare wages and tips), and Box 7 (Social Security tips) of the employee’s Form W-2, Wage and Tax Statement. Enter the amount of any uncollected social security tax and Medicare tax in Box 12 of Form W-2. See the General Instructions for Forms W-2 and W-3.

Reporting Service Charges: Employers who distribute service charges to employees should treat them the same as regular wages for tax withholding and filing requirements, as provided in Publication 15, Employer’s Tax Guide. Distributed service charges must be included in Box 1 (Wages, tips, other compensation), Box 3 (Social Security wages), and Box 5 (Medicare wages and tips) of the employee’s Form W-2.

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IRS Begins Private Debt Collection in Spring 2017

The Internal Revenue Service announced today that it plans to begin private collection of certain overdue federal tax debts next spring and has selected four contractors to implement the new program. The new program, authorized under a federal law enacted by Congress last December, enables these designated contractors to collect, on the government’s behalf, outstanding inactive tax receivables. As a condition of receiving a contract, these agencies must respect taxpayer rights including, among other things, abiding by the consumer protection provisions of the Fair Debt Collection Practices Act. The IRS has selected the following contractors to carry out this program:

CBE Group 1309 Technology Pkwy Cedar Falls, IA 50613

Conserve 200 CrossKeys Office park Fairport, NY 14450

Performant 333 N Canyons Pkwy Livermore, CA 94551

Pioneer 325 Daniel Zenker Dr Horseheads, NY 14845

These private collection agencies will work on accounts where taxpayers owe money, but the IRS is no longer actively working their accounts. Several factors contribute to the IRS assigning these accounts to private collection agencies, including older, overdue tax accounts or lack of resources preventing the IRS from working the cases. The IRS will give each taxpayer and their representative written notice that their account is being transferred to a private collection agency. The agency will then send a second, separate letter to the taxpayer and their representative confirming this transfer. Private collection agencies will be able to identify themselves as contractors of the IRS collecting taxes. Employees of these collection agencies must follow the provisions of the Fair Debt Collection Practices Act and must be courteous and respect taxpayer rights.

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New Tax Fraud Scheme

You need to warn your fellow employees and customers that the IRS has announced a new tax fraud scheme.  This time it involved fraudulent Affordable Care Act notices being emailed to individual taxpayers. The IRS has received numerous reports around the country of scammers sending a fraudulent version of CP2000 notices for tax year 2015. Generally, the scam involves an email that includes the fake CP2000 as an attachment.

The CP2000 is a notice commonly mailed to taxpayers through the United States Postal Service. It is never sent as part of an email to taxpayers. The indicators are:

  • These notices are being sent electronically, even though the IRS does not initiate contact with taxpayers by email or through social media platforms;
  • The CP 2000 notices appear to be issued from an Austin, Texas, address;
  • The underreported issue is related to the Affordable Care Act (ACA) requesting information regarding 2014 coverage;
  • The payment voucher lists the letter number as 105C.
Open hand raised, Stop Fraud sign painted
Open hand raised, Stop Fraud sign painted

 

Taxation of Wellness Programs

The Office of Chief Counsel of the Internal Revenue Service has issued a memorandum on “Tax Treatment of Wellness Program Benefits and Employer Reimbursement of Premiums Provided Pre-tax Under a Section 125 Cafeteria Plan”.  Not quite a catchy title I admit but it does contain guidance that is useful.  The two questions  that were at issue are as follows:

  1. May an employer exclude from an employee’s income under section 105 or section 106 cash rewards paid to an employee for participating in a wellness program?
  2.  May an employer exclude from an employee’s income under section 105 or section 106 reimbursements of premiums for participating in a wellness program if the premiums for the wellness program were originally made by salary reduction through a section 125 cafeteria plan?

The conclusion reached by the Chief Counsel was no on both counts. 1. An employer may not exclude from an employee’s gross income payments of cash rewards for participating in a wellness program. 2. An employer may not exclude from an employee’s gross income reimbursements of premiums for participating in a wellness program if the premiums for the wellness program were originally made by salary reduction through a section 125 cafeteria plan.

For those of you who need to research this closer I included the link to the memorandum issued on April 14, 2016 and released on May 27, 2016.  They review three different situations and then provide the law and analysis you may need if this affects any benefits you are offering.

 

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National Taxpayer Advocate Wants to Hear From You

National Taxpayer Advocate Nina E. Olson and Sen. Bob Casey, Ranking Member of the Senate Finance Subcommittee on Taxation and IRS Oversight, will hold a public forum to discuss what taxpayers want and need from the IRS to comply with their tax obligations. The public forum will be held Friday, April 8, at 10:00 a.m. in the auditorium of the Harrisburg University of Science & Technology, Harrisburg, PA. Members of the public and the media are invited to attend. Building on initiatives already implemented, the IRS for the past two years has been developing a “Future State” plan that envisions how it will operate in five years and beyond. It is continuing to develop a path for how it gets from its “Current State” to the “Future State,” including refinements to the vision along the way.  A central component of the plan is the creation of online taxpayer accounts as a convenient but non-exclusive channel through which taxpayers will be able to obtain information from and interact with the IRS.

The April 8 public forum will feature an invited panel of representatives from the small business and local taxpayer communities, including the following:

Members of the public will also have an opportunity to speak. Olson will conduct the hearing in collaboration with Sen. Casey, who represents Pennsylvania in the United States Senate. Senator Casey’s subcommittee is responsible for IRS oversight. Local Taxpayer Advocate Service (TAS) staff will be available to talk with attendees about unresolved tax issues and help determine if their situation qualifies for TAS assistance. TAS generally is unable to assist taxpayers with return preparation questions, but can provide assistance to taxpayers who have already filed their returns with the IRS for the current or past years and are experiencing problems that meet its case-acceptance criteria. The public forum will take place in the auditorium of the Harrisburg University of Science & Technology, 326 Market Street, Harrisburg, PA  17101. For information about the forum, go to TaxpayerAdvocate.irs.gov/public-forums.

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Watch Out for Fraud, W-2s, Your “CEO”

We all know that fraud has been occurring with the Form W-2.  This is what has caused the IRS to request and Congress to approve moving the due date of the form up to January 31st. But now the IRS is alerting payroll professionals to be aware of an emerging phishing email scheme that is targeted directly at payroll and the information you have on your employees.  It seems that these schemes send bogus emails purporting to be from company executives and requests personal information on employees. This is a new twist on an old scheme and is focusing on the busyness of this timirs newswiree of year. IRS Commissioner John Koskinen has advised payroll departments to be sure to check out requests for company lists that come from executives before sending out the data.  “Everyone has a responsibility to remain diligent about confirming the identity of people requesting personal information about employees” states Commissioner Koskinen.

The IRS is already investigating and reviewing several cases of what is known as a “spoofing” email. It will contain, for example, the actual name of the company chief executive officer.  In this variation, the “CEO” sends an email to the company payroll office employee requesting a list of employees and information including social security numbers.  The following are some of the details of the scheme that the IRS has furnished:

  • Kindly send me the individual 2015 W-2 (PDF) and earnings summary of all W-2 of our company staff for a quick review
  • Can you send me the updated list of employees with full details (Name, Social Security Number, Date of Birth, Home Address, Salary) as at 2/2/2016.
  • I want you to send me the list of W-2 copy of employees wage and tax statement for 2015, I need them in PDF file type, you can send it as an attachment. Kindly prepare the lists and email them to me asap.

What can payroll professionals do to handle this situation?  First, immediately inform your higher ups that the phishing scheme is now in play. Make sure they are aware ahead of time of your need to be even more diligent than ever on guarding your payroll information.  And then, as usual, guard the information in your system as you always have, in the most professional manner available.  If your managers need more info please refer to this link for a copy of the IRS alert

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IRS Announces 2015 Housing Limits for Those Employees Abroad

The IRS has issued the annual adjustments to the housing expense limitation for specific locations for purposes of Code Sec. 911, as amended by the Tax Increase Prevention and Reconciliation Act of 2005 (TIPRA) (P.L. 109-222). Notice 2015-33 provides adjusted limitations on housing expenses for tax year 2015 for purposes of the foreign earned income exclusion and foreign housing exclusion.