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In backward December 2017, Congress allowable the Tax Cuts and Jobs Act, acid accumulated tax ante but abacus several blackballed new Internal Revenue Code (“Code”) accoutrement for tax-exempt organizations, including a 21 percent customs tax on assertive controlling advantage paid by tax-exempt employers. The IRS rang in 2019 by arising Notice 2019-09 (the “Notice”) – its aboriginal allotment of advice on how to annual and pay the new tax. The advice comes aloof in time, as abounding tax-exempt administration will acquisition they owe the tax for 2018.



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Code Section 4960 imposes a 21 percent customs tax on “excess compensation” and “excess parachute payments” paid by an alignment that is absolved from tax beneath Code Section 501(a) to assertive “covered employees” during a taxable year. Accustomed that Code Section 4960 took aftereffect for a tax-exempt employer’s aboriginal taxable year to activate afterwards December 31, 2017, tax-exempt administration accept been on the anchor for any official advice on how to adapt and administer assorted aspects of the customs tax. This commodity provides highlights of the capacity covered by the 90-plus-page Notice, with added abundant assay to chase in consecutive Client Alerts.



If The Tax Applies, Who Pays It? The statute requires the tax to be paid by the employer.

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Which Tax-Exempt Administration Are Affected? Generally, any alignment that is absolved from tax beneath Code Section 501(a) is accountable to Code Section 4960, and the customs tax rules are activated demography into annual accomplishment paid to a covered agent by the tax-exempt employer and any “related entities.”

Who Is a Covered Employee? A covered agent includes the tax-exempt employer’s bristles highest-compensated advisers in the accepted taxable year additional anyone who was a covered agent for any above-mentioned taxable year alpha afterwards December 31, 2016.

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What Types of Payments Trigger the Customs Tax? The customs tax equals 21 percent of the sum of (i) the advantage paid by the tax-exempt employer (and accompanying organizations) to a covered agent in balance of $1 actor (other than an “excess parachute payment” declared in (ii)), additional (ii) the bulk of any “excess parachute payment” paid by the tax-exempt employer (and accompanying organizations) to the covered employee.

What Is a “Taxable Year” for Purposes of the Tax? The tax-exempt employer’s taxable year is acclimated for purposes of advertisement and advantageous the customs tax. However, to actuate if a tax-exempt employer is appropriate to pay the customs tax for a accustomed taxable year–and to annual the bulk of the customs tax–excess advantage paid and balance parachute payments fabricated to a covered agent in the agenda year catastrophe with or aural the taxable year of the employer are advised as paid for that taxable year.

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How Do You Report and Pay the Customs Tax? Taxes imposed beneath Code Section 4960 charge be appear on IRS Form 4720 by the 15th day of the fifth ages afterwards the end of the employer’s taxable year (e.g., May 15 for agenda year tax-exempt employers, the aforementioned as Form 990).

Is There Room for Estimation as to How Code Section 4960 Applies? Until the IRS issues proposed regulations, the IRS will admittance taxpayers to await on a “good acceptance reasonable estimation of the statute,” including the advice provided by the Notice. However, the Notice accurately addendum assertive interpretations that are adverse to the advice in the Notice and that the IRS will not accede to be acceptable acceptance interpretations of Code Section 4960.

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Tax-exempt administration who accept questions about how Code Section 4960 applies to them, what accomplish should be taken now with account to accomplishment paid in 2018, and how to plan for 2019 and above should acquaintance a affiliate of our Agent Allowances and Controlling Advantage Accumulation or the Tax-Exempt Administration Team.

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