William Byrnes' Tax, Wealth, and Risk Intelligence

William Byrnes (Texas A&M) tax & compliance articles

TaxFacts Intelligence November 8, 2021

Posted by William Byrnes on November 8, 2021


This week, we dig a little deeper into some employment issues that have emerged in recent months–including a deeper dive into vaccine surcharges, employees who aren’t actively at work and the newly-emerging tax issues for employers who give employees the option of receiving wages in cryptocurrency.  Are your clients up to date?

By the way subscribers, the Texas A&M graduate program for tax, wealth, and risk management is accepting applications for spring. Maximum enrollment for a course section is 30 so that each student receives meaningful feedback throughout the course from the full-time academic faculty and renowned professional case study leaders, and each other. Learn more about it here: https://law.tamu.edu/distance-education

Prof. William H. Byrnes         Robert Bloink, J.D., LL.M.

$1.2 Trillion Infrastructure Act to be signed by Biden

The 2,702-page bi-partisan “Infrastructure Investment and Jobs Act of 2021” has been passed by the House and sent to Biden for signature into law. The Act contains approximately $550 billion of new project spending and carries over an additional $650 billion from previously funded projects for a total of over $1.2 trillion in infrastructure spending that will begin in 2021 and most end in 2026.

But the Infrastructure Act 2021 contains many energy provisions and excise taxes as well as fees that will impact all segments of the energy industry. These provisions include billions of dollars for the industry for expenditure and incentives for carbon capture; clean hydrogen R&D; nuclear; among others. By example, $500,000,000 is provided for clean hydrogen technology R&D (see page 1550 at section 40314). The excise taxes and fees include the extensions of the highway-related taxes, superfund excise taxes, and customs user fees.

The major tax reform provisions addressing estate and gift tax, capital gains, carried interests, real estate exchanges, retirement plans, and high-income earners have been reserved to the forthcoming yet-to-be-agreed/released Democratic reconciliation bill. However, the Infrastructure Investment and Jobs Act of 2021 contains some new tax provisions including:

  • Sec. 80501. Modification of automatic extension of certain deadlines in the case of taxpayers affected by Federally declared disasters.
  • Sec. 80502. Modifications of rules for postponing certain acts by reason of service in combat zone or contingency operation.
  • Sec. 80503. Tolling of time for filing a petition with the tax court.
  • Sec. 80504. Authority to postpone certain tax deadlines by reason of significant fires.
  • Sec. 80601. Modification of tax treatment of contributions to the capital of a corporation.
  • Sec. 80602. Extension of interest rate stabilization.
  • Sec. 80603. Information reporting for brokers and digital assets.
  • Sec. 80604. Termination of employee retention credit for employers subject to closure due to COVID–19.

The automatic extension for certain tax deadlines for Federally declared disasters addresses the situation of multiple declarations relating to a disaster area which are issued within a 60-day period. A separate 60-day period shall be determined with respect to each such declaration pursuant to the bill’s language.

The Infrastructure Act 2021 contains hundreds of not-obvious federal grants and contract opportunities for business. By example of one provision related to education and training of workers, section 401513 includes $10 million dollars for FY2022 for government grants of 50 percent of the cost to provide ‘career skills training’ to identify and involve in training programs target populations of individuals who would benefit from training and be actively involved in activities relating to energy efficiency and renewable energy industries; and the ability to help individuals achieve economic self-sufficiency. The program students must concurrently receive classroom instruction and on-the-job training for the purpose of obtaining an industry-related certification to install energy-efficient buildings.

The Act amends the reporting by brokers to include as of 2023 cryptocurrencies. I.R.C. Section 6045(c)(1) is amended to include within the term “broker” any person who (for consideration) is responsible for regularly providing any service effectuating transfers of digital assets on behalf of another person. The Infrastructure Act 2021 amends the information required to be provided the IRS by the broker in the case of securities transactions. A ‘covered security’ is amended to include any ‘digital asset’.

(D) DIGITAL ASSET. The term ‘digital asset’ means any digital representation of value which is recorded on a cryptographically secured distributed ledger or any similar technology as specified by the Secretary. Any broker, with respect to any transfer (which is not part of a sale or exchange executed by such broker) during a calendar year of a covered security which is a digital asset from an account maintained by such broker to an account which is not maintained by, or an address not associated with, a person that such broker knows or has reason to know is also a broker, shall make a return for such calendar year showing the information otherwise required to be furnished with respect to transfers.

The reporting requirement goes into effect on January 1, 2023.

Need to Know on Offering Benefits to Employees Who Aren’t “Actively At Work”

Many employers continued to allow employees to participate in employee benefit programs while the employee was not actually working during the COVID-19 pandemic.  While many employees have now returned to work, in some areas rolling shutdowns may continue to impact the employer’s ability to retain employees on a continuous basis.  It can be risky to allow employees to remain on an employer’s health insurance benefit plan while not actively at work.  In many cases, fully insured plans have “actively at work” clauses that apply in determining the employee’s eligibility for benefits.  Employees typically can continue to participate for up to three months after ceasing work (to comply with FMLA time limits).  For employers with self-insured health plans, stop loss coverage may not apply to cover claims if the employee is not actively working.  Small business clients should check their plans and establish a policy on how employees who are not actively at work will be treated for benefit purposes.  For more information on self-insured plans, visit Tax Facts Online. Read More

Considering a COVID-19 Vaccine Health Surcharge?  How High Can it Be?

Employers subject to the ACA employer mandate should be mindful that the health coverage must continue to be “affordable” even if the employer opts to impose a COVID-19 vaccine surcharge (there is currently no exception for vaccines).  In 2021, health insurance is affordable if the employee’s contribution does not exceed 9.83 percent (9.61 percent in 2022) of household income (three safe harbors exist for purposes of determining “household income”).  Further, total surcharges generally cannot exceed 30 percent of the cost of the employee’s health insurance premiums (considering the cost of self-only coverage) under a HIPAA rule on incentives for employees who participate in wellness programs.  In the end, the amount of the allowable surcharge can vary by employer and employee, considering the cost of employer-sponsored health insurance, the employee’s compensation and the amount of the health insurance premiums that the employer chooses to subsidize.  For more information on vaccine-related incentives, visit Tax Facts Online. Read More

Paying Employees in Cryptocurrency?  Don’t Forget Employment Taxes

The IRS released a reminder last week for business clients who opt to pay employees in cryptocurrency.   Employers who choose to pay wages in cryptocurrency should remember that their choice of payment method is immaterial when it comes to calculating employment taxes.  Employment taxes must be paid on the fair market value of cryptocurrency paid as wages, measured using U.S. dollars on the date the employee receives the payment.  The fair market value is subject to FICA, FUTA and federal income tax withholding–and must be reported on the employee’s Form W-2.  Wages paid in cryptocurrency may also be reportable for state income tax purposes.  Employers are liable for these wages, so it’s important that small business clients who opt to pay employees in increasingly popular virtual currency be aware of their withholding and reporting obligations.  For more information on cryptocurrency paid as wages, visit Tax Facts Online. Read More

Look in your Tax Facts Online app for our continuing analysis of this bill, the tax reform in the reconciliation bill, and other weekly intelligence.

Wealth & Risk Management Degree for Industry Professionals – learn about the graduate degree here: https://law.tamu.edu/distance-education

Texas A&M, an annual budget of $6.3 billion (FY2020), is the largest U.S. public university, one of only 60 accredited U.S. universities of the American Association of Universities (R1: Doctoral Universities – Highest Research Activity) and one of only 17 U.S. universities that hold the triple U.S. federal grant of Land, Sea, and Space! The law school has the #1 bar passage in Texas, and #1 for employment in Texas (and top 10 in U.S.)

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