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Tax Exempt & Government Entities

INDIAN TRIBAL GOVERNMENTS

Employment Tax for

Indian Tribal Governments

Publication 4268 (Rev. 8-2022) Catalog Number 37833J Department of the Treasury Internal Revenue Service www.irs.gov

Table of Contents

Chapter 1

Introduction to Employment Tax for Indian Tribal Governments............................................... 1

Chapter 2

Employee or Independent Contractor.......................................................................................... 4

Chapter 3

Treatment of Certain Payments.................................................................................................... 9

Chapter 4

Tipped Employees ......................................................................................................................18

Chapter 5

Employee Business Expense Reimbursements........................................................................24

Chapter 6

Fringe Benefits.............................................................................................................................27

Chapter 7

Retirement Plans.........................................................................................................................31

Chapter 8

Cafeteria Plans.............................................................................................................................40

Chapter 9

Scholarships & Educational Assistance.................................................................................... 41

Chapter 10

Earned Income Tax Credit .........................................................................................................44

Chapter 11

Employment Taxes......................................................................................................................45

Chapter 12

Preparation of Payroll Checks....................................................................................................57

Chapter 13

Form 941, Employer’s Quarterly Federal Tax Return................................................................62

Chapter 14

Form 943, Agricultural Employees.............................................................................................76

Chapter 15

Form 940, Employer’s Annual Federal Unemployment (FUTA) Tax Return.............................81

Chapter 16

Form 945, Annual Return of Withheld Federal Income Tax.....................................................84

Chapter 18

Electronic Filing Requirements for Form W-2, Wage and Tax Statement...............................92

Chapter 19

Reporting Compensation & Non-Compensation Payments on Form 1099-MISC &

Form 1099-NEC...........................................................................................................................95

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Chapter 20

Records Retention.................................................................................................................... 100

Chapter 21

Penalties.................................................................................................................................... 103

Chapter 22

IRS Notices and Letters............................................................................................................107

Chapter 23

The Collection Process.............................................................................................................110

Glossary of Terms ...................................................................................................................... 113

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Chapter 1

Introduction to Employment Tax for Indian Tribal Governments

The office of Indian Tribal Governments (ITG) at the Internal Revenue Service was established

to help Indian tribes address their federal tax matters. ITG uses partnership opportunities with

Indian tribal governments, tribal associations and other federal agencies to respectfully and

cooperatively meet the needs of the Indian tribal governments and the federal government, and

to simplify the tax administration process.

This publication provides information and tips for maintaining good records, preparing payroll,

and filing and depositing employment taxes. It is provided for general information only and

should not be cited as legal authority.

Visit www.irs.gov/tribes for further information on any of the topics covered in this publication.

Are Federally Recognized Tribal Governments Subject to Employment Taxes?

Generally, Indian tribes in their role as employers are subject to federal employment tax laws and

procedures. It is a well-established principle of tax law that in the ordinary affairs of life, Indians

are U.S. citizens and are subject to the payment of federal income taxes.

Where a business enterprise or political subdivision of an Indian tribe is organized and operated

by the tribe itself, the enterprise is considered a private tribal activity. When workers perform

services in the employ of a private tribal activity, these services also constitute employment.

The federal statutes, regulations, case law, revenue rulings and other sources of tax authority

establish the role of Indian tribal governments as employers. As such, tribal governments are

required to follow substantially the same procedures as other employers. There are some special

provisions that apply to tribal governments addressed in later chapters of this publication. If you have

questions about anything contained in or omitted from this publication, go to www.irs.gov/tribes.

Employment Tax Requirements

Employers are required to withhold and pay employment taxes. Employment taxes include

income tax, Social Security and Medicare taxes (also known as Federal Insurance Contributions

Act (FICA) taxes) withheld from an employee’s wages, plus the employer’s share of FICA taxes

and federal unemployment (FUTA) taxes, when applicable. The withheld (employee’s) portion of

employment taxes is referred to as “trust fund” taxes. FUTA is addressed in Chapter 15.

In addition to your responsibilities for withholding, depositing and reporting federal taxes,

your state taxing authority or tribal governmental taxing agency may also have tax reporting

requirements. This publication is designed to assist you in complying with federal tax

requirements. You should contact your state and, in some cases, tribal taxing agencies for

information concerning state and tribal tax requirements.

Who is an Employee?

Employees are defined in the Treasury Regulations as every individual who performs services

subject to the will and control of an employer, both as to what is to be done and how it is to be

done. The right to discharge or to fire an employee is an important indicator that the person

having the right to discharge is an employer. The employee may have considerable discretion

and freedom of action as long as the employer has the legal right to control both the method

and the result of the employee’s work.

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Chapter 1: Introduction to Employment Tax for Indian Tribal Governments

An employee may be called a partner, an agent or an independent contractor and still meet the

criteria of an employee. The description is immaterial if the legal relationship of employer and

employee exists. Managers and other supervisory personnel are employees. A corporate officer

is an employee.

Tribal council members are employees, but receive special treatment for purposes of

employment taxes. Tribal council members and other situations unique to Indian tribes are

discussed in Chapter 3.

Who is an Employer?

The Treasury Regulations define an employer as any person for whom an employee performs

or performed any service. An employer may be an individual, a corporation, a partnership,

a trust, an estate, an Indian tribe, educational institutions, organizations, federal/state/local

governmental entities and other entities.

In addition to this publication, we offer a number of products and services to assist you.

Workshops1 available for presentation at your location

„ Employment Tax

„ Gaming Tax

„ Tip Reporting & Tip Agreements

„ Title 31 (Bank Secrecy Act Overview & Compliance)

The “ITG Tax Kit” is a webpage available at www.irs.gov/government-entities/indian-tribalgovernments/itg-tax-kit, which contains the following forms, publications and web links for

additional services that are the most useful to tribal entities (The freely available Adobe Acrobat

Reader software is required to view, print and search the forms and publications):

Forms

„ Form W-2 - Wage and Tax Statement

„ Form W-2G - Certain Gambling Winnings

„ Form W-3 - Transmittal of Wage and Tax Statements

„ Form W-4 - Employee’s Withholding Certificate

„ Form W-9 - Request for Taxpayer Identification Number and Certification

„ Form 11-C - Occupational Tax and Registration Return for Wagering

„ Form 720 - Quarterly Federal Excise Tax Return

„ Form 730 - Monthly Tax Return for Wagers

„ Form 940 - Employer’s Annual Federal Unemployment (FUTA) Tax Return

„ Form 941 - Employer’s Quarterly Federal Tax Return

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Additional topics not listed can be provided as requested/needed

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Chapter 1: Introduction to Employment Tax for Indian Tribal Governments

„ Form 941-X - Adjusted Employer’s Quarterly Federal Tax Return or Claim for Refund

„ Form 941-X - Instructions

„ Form 944 - Employer’s Annual Federal Tax Return

„ Form 944 - Instructions

„ Form 945 - Annual Return of Withheld Federal Income Tax

„ Form 1042 - Annual Withholding Tax Return for U.S. Source Income of Foreign Persons

„ Form 1042-S - Foreign Person’s U.S. Source Income Subject to Withholding

„ Form 1096 - Annual Summary and Transmittal of U.S. Information Returns

„ Form 1099-INT - Interest Income

„ Form 1099-MISC - Miscellaneous Income

„ Form 1099-NEC - Nonemployee Compensation

„ Form 5754 - Statement by Person(s) Receiving Gambling Winnings

„ Form 8027 - Employer’s Annual Information Return of Tip Income and Allocated Tips

„ Form 13551- Application to Participate in the IRS Acceptance Agent Program

Publications

„ Publication 15 - (Circular E), Employer’s Tax Guide

„ Publication 15-A - Employer’s Supplemental Tax Guide

„ Publication 15-B - Employer’s Tax Guide to Fringe Benefits

„ Publication 15-T - Federal Income Tax Withholding Methods

„ Publication 515 - Withholding of Tax on Nonresident Aliens and Foreign Entities

„ Publication 509 - Tax Calendars

„ Publication 526 - Charitable Contributions

„ Publication 531 - Reporting Tip Income

„ Publication 1281- Backup Withholding for Missing and Incorrect Name/TIN(s)

„ Publication 3908 - Gaming Tax Law and Bank Secrecy Act Issues for Indian Tribal Governments

„ Publication 4268 - Employment Tax for Indian Tribal Governments4

„ Publication 5343 - Helpful Hints for Indian Tribes and Tribal Entities to Avoid Penalties on Federal

Tax Deposits and Information Returns

„ Publication 5424 - Income Tax Guide for Native American Individuals and Sole Proprietors

Services

„ SSA/IRS Reporter - Information for employers who file business returns

„ EFTPS: The Electronic Federal Tax Payment System - The easiest way to pay your federal taxes

„ Electronic Filing Options for Business and Self-Employed Taxpayers - Information for

businesses and self-employed taxpayers who file and pay electronically

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Chapter 2

Employee or Independent Contractor

It is critical that the tribe and its wholly-owned entities correctly determine whether the

individuals providing services for them are employees or independent contractors.

Generally, you must withhold income taxes, withhold and pay Social Security and Medicare

taxes, and pay unemployment tax on wages paid to an employee. You do not generally have to

withhold or pay any taxes on payments to independent contractors.

Employees

A person who works for you may be classified as a common law employee, a statutory

employee or an independent contractor. The classification of the worker determines which forms

you must file and which taxes you must pay. Note: Wholly-owned tribal government entities

may be exempt from federal unemployment taxes. Please refer to Chapter 15 for further

information.

Internal Revenue Code (IRC) Section 3121(d)(2) defines “employee” as “any individual who, under

the usual common law rules applicable in determining the employer/employee relationship,

has the status of an employee.” The “usual common law rules” referred to in the statute and the

regulations, are those factors to which the courts have looked over the years to decide whether

a person is an employee.

Generally, an employer/employee relationship exists when the person for whom services are

performed has the right to control and direct the individual who performs the services. This

control includes the result to be accomplished by the work, the details and means by which that

result is accomplished. That is, an employee is subject to the will and control of the employer

not only as to what will be done but how it will be done. It is not necessary the employer actually

direct or control the manner in which the services are performed; it is sufficient the employer has

the right to do so. The right to discharge is also an important factor indicating that an employer/

employee relationship exists.

In determining whether a worker is an employee or an independent contractor under the

common law rules, three main categories must be considered:

1) Behavioral control,

2) Financial control, and

3) Relationship of the parties.

1) Behavioral control—Facts that show whether there is a right to direct or control how the

worker does the work include:

„ Instruction the business gives to the worker, such as:

— How, when or where to do the work

— What tools or equipment to use

— What assistants to hire to help with the work

— Where to purchase supplies and services

— What work must be performed by a specified individual

— What order or sequence to follow

„ Type of training the business gives the worker

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Chapter 2: Employee or Independent Contractor

2) Financial control—Facts that show whether there is a right to direct or control the business

part of the work include:

„ Significant investment—the extent of the worker’s investment

„ Expenses—the extent to which the worker has unreimbursed business expenses

„ Opportunity for profit or loss—the extent to which the worker can realize a profit or loss

„ The extent to which the worker makes services available to others

„ How the business pays the worker

3) Relationship of the parties—Facts that illustrate how the business and worker perceive their

relationship include:

„ Employee benefits—whether the business provides the worker with employee-type benefits

„ Written contracts describing the relationship

„ The permanency of the relationship

„ The extent to which services performed by the worker are a key aspect of the business

Even after evaluating the above factors, there will be times when it is difficult to determine

whether an individual is a common law employee or self-employed and should be treated as

an independent contractor. Many individuals who have personal service contracts with tribal

governments may be employees rather than independent contractors. The mere existence of a

contract does not mean the individual is not an employee.

It’s important to the worker that the employment status be determined as quickly as possible so

the earnings can be properly reported. To request a determination from the IRS as to whether a

worker is an employee, file a Form SS-8, Determination of Worker Status for Purposes of Federal

Employment Taxes and Income Tax Withholding. Further information is provided in Chapter 3.

Some workers may be considered statutory employees (even though they are considered

independent contractors under the common law rules) if they fall into any one of four categories

and they meet three additional conditions. The law defines certain workers as employees by

statute. These categories include:

„ Drivers who distribute certain food products or deliver laundry or dry cleaning,

„ Full-time life insurance sales agents,

„ Individuals who work at home on materials and goods you supply and must be returned to you,

and

„ Full-time traveling or city salespersons who turn in orders to you from wholesalers, retailers,

contractors, or operators of hotels, restaurants or other similar establishments.

See Publication 15-A, Section 1, Who are Employees? for further information.

Independent Contractors

The general rule is that an individual is an independent contractor if the payer has the right

to control or direct only the result of the work, but not what will be done and how it will be

done. The earnings of a person who is working as an independent contractor are subject to

self-employment tax. A Form 1099-NEC, Nonemployee Compensation, should be furnished to

independent contractors and filed with the IRS.

An individual is not an independent contractor if they perform services that can be controlled

by a payer (what will be done and how it will be done). This applies even if individuals are given

freedom of action. What matters is that the employer has the legal right to control the details of

how the services are performed. If an employer/employee relationship exists (regardless of what

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Chapter 2: Employee or Independent Contractor

the relationship is called), the individual is not an independent contractor and their earnings are

generally not subject to self-employment tax.

Misclassification of Employees

If you classify an employee as an independent contractor and you have no reasonable basis

for doing so, you will be held liable for employment taxes for that worker (IRC Section 3509). In

some instances, you may have reasonable basis for not treating a worker as an employee and

may be entitled to relief under Section 530 of the Revenue Act of 1978.

If you have a reasonable basis for not treating a worker as an employee, you may be relieved

from having to pay employment taxes for that worker. To get this relief, you must file all required

federal information returns on a basis consistent with your treatment of the worker. You (or your

predecessor) must not have treated any worker holding a substantially similar position as an

employee for any period beginning after 1977.

Workers who believe they have been improperly classified as independent contractors by an

employer can use Form 8919, Uncollected Social Security and Medicare Tax on Wages, to

figure and report (on their Form 1040) the employee’s share of uncollected Social Security and

Medicare taxes due on their compensation.

The Voluntary Classification Settlement Program (VCSP) is an optional program that provides

taxpayers with an opportunity to reclassify their workers as employees for future tax periods for

employment tax purposes with partial relief from federal employment taxes for eligible taxpayers

who agree to prospectively treat their workers (or a class or group of workers) as employees.

To participate in this voluntary program, the taxpayer must meet certain eligibility requirements,

apply to participate in the VCSP by filing Form 8952, Application for Voluntary Classification

Settlement Program, and enter into a closing agreement with the IRS. For more information go

to: Voluntary Classification Settlement Program | Internal Revenue Service.

Misclassified Workers to File Social Security Tax Form

Form 8919 is used to figure and report an employee’s share of the uncollected Social Security

and Medicare taxes due on their compensation if they were an employee but their employer

treated them as an independent contractor. By filing this form, their Social Security earnings will

be credited to the employee’s Social Security record.

Generally, a worker who receives a Form 1099 for services provided as an independent

contractor must report the income on Schedule C, Profit or Loss from Business, and pay

self-employment tax on the net profit, using Schedule SE, Self-Employment Tax. However,

sometimes the worker is incorrectly treated as an independent contractor when they are actually

an employee. When this happens, Form 8919 will be used by workers who performed services

for an employer but the employer did not withhold the worker’s share of Social Security and

Medicare taxes.

In addition, the worker must meet one of several criteria indicating they were an employee while

performing the services. The criteria include:

„ The worker has filed Form SS-8 and received a determination letter from the IRS stating they are

an employee of the firm.

„ The worker has been designated as a Section 530 employee by their employer or by the IRS

prior to January 1, 1977.

„ The worker has received other correspondence from the IRS that states they are an employee.

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Chapter 2: Employee or Independent Contractor

„ The worker was previously treated as an employee by the firm and they are performing services

in a similar capacity and under similar direction and control.

„ The worker’s co-workers are performing similar services under similar direction and control and

are treated as employees.

„ The worker’s co-workers are performing similar services under similar direction and control and

filed Form SS-8 for the firm and received a determination that they were employees.

„ The worker has filed Form SS-8 with the IRS and has not yet received a reply.

NOTE: In the past, misclassified workers often used Form 4137, Social Security and Medicare

Tax on Unreported Tip Income, to report their share of Social Security and Medicare taxes.

Misclassified workers should no longer use this form. Instead, Form 4137 should now only be

used by tipped employees to report Social Security and Medicare taxes on allocated tips and

tips not reported to their employers.

Examples of Employees

Example 1: The tribal business pays Tom $500 per week to clean the tribal office complex.

Tom only works for the tribe. He doesn’t have the right to hire or fire any assistants, and he is

required to personally do the work. The tribe provides Tom’s supplies and tools. Based on these

facts, Tom is considered an employee and the tribe should withhold income and employment

taxes. Tom will be issued a Form W-2.

Example 2: Bill works as a deputy for the tribal police department. When Bill is off-duty, he has

been repairing the roof of the tribal hospital. Bill doesn’t do roofing for other customers. The

tribe determined when the work was to be done, provided the supplies needed and determined

how Bill will be paid. Based on these facts, Bill is considered an employee of the tribe for both

jobs and should be issued a Form W-2 showing the withheld income and employment taxes.

Example of an Independent Contractor

The tribe pays Paul $1,000 per week to clean the bingo halls. Paul operates his own janitorial

service providing cleaning services to numerous entities. He has the right to hire and fire his

own employees and provides his own supplies. The tribe doesn’t have the right to control

Paul. Therefore, Paul is not an employee of the tribe and would be issued a Form 1099-NEC,

Nonemployee Compensation, to report his compensation.

If you have a question about the treatment of any of your workers, see Topic No. 762,

Independent Contractor vs. Employee, at www.irs.gov/taxtopics/tc762, Publication 15A,

Employer’s Supplemental Tax Guide, or go to www.irs.gov/tribes and click on the “Employment

Tax for Tribes” link.

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Chapter 2: Employee or Independent Contractor

Agricultural Labor (Farm Work)

There are special rules for Social Security and Medicare withholding on agricultural workers.

Employment taxes for farmworkers must be filed on Form 943, Employer’s Annual Federal Tax

Return for Agricultural Employees, and must be separate from other workers’ employment taxes

filed on Form 941. See Publication 51, Section 4, Social Security and Medicare Taxes, for more

information.

Crew Leaders

A crew leader is an employer of farmworkers. A crew leader is a person who furnishes and pays

(either on their own behalf or on behalf of the farm operator) workers to do farm work for the

farm operator. If there is no written agreement between you and the farm operator stating that

you are their employee and if you pay the workers (either for yourself or for the farm operator),

then you are a crew leader. Crew leaders are independent contractors and should be issued

Form 1099-NEC, Nonemployee Compensation, to report the nonemployee compensation.

References

„ Publication 15, (Circular E), Employer’s Tax Guide

„ Publication 15-A, Employer’s Supplemental Tax Guide

„ Publication 15-T, Federal Income Tax Withholding Methods

„ Publication 51, (Circular A), Agricultural Employer’s Tax Guide

„ Publication 1779, Independent Contractor or Employee

„ Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and

Income Tax Withholding

„ Form 8919, Uncollected Social Security and Medicare Tax on Wages

„ Form 8952, Application for Voluntary Classification Settlement Program (VCSP)

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Chapter 3

Treatment of Certain Payments

In this chapter, we’ll discuss how certain payments are treated. Some of these payments are

specific to Indian tribes, while others are not. For example, payments made from fishing rightsrelated activities and payments made to tribal council members are tribal specific issues.

Payments made to elected and appointed officials and those payments made as bonuses

apply to all employers. The proper treatment of these payments for withholding and reporting

purposes is sometimes confusing.

The next four sections of this chapter discuss payments for fishing rights-related activities, tribal

council members, bonuses and payments to elected and public officials. If you have questions

about any of these payments, or how they are to be treated, go to www.irs.gov/tribes and click

on the “Employment Tax for Tribes” link. See also Publication 15 and Publication 15A.

Fishing Rights-Related Activities

Any income derived by a member of an Indian tribe, either directly or through a “qualified Indian

entity” (defined later in this chapter), or by a “qualified Indian entity” from a fishing-rights related

activity of that member’s or entity’s tribe is exempt from federal and state taxation (income tax,

income tax withholding, FICA, unemployment tax and self-employment tax).

Wages are not exempt if paid by an employer who is not a member of the same tribe or is not a

qualified Indian entity. Wages are also not exempt if paid to an employee who is not a member

of the tribe whose fishing rights are exercised. Tribal members must fish in their own waters to

be exempt.

Fishing rights-related activity means an activity (including aquaculture) directly related to

harvesting, processing or transporting fish harvested in the exercise of recognized fishing

rights of the tribe or to selling fish, but only if members of the tribe perform substantially all the

harvesting.

A recognized fishing right must have been secured as of March 17, 1988, by a treaty between

the tribe and the United States, by an Executive Order or an Act of Congress.

As an employer exercising fishing rights-related activities you should:

„ Verify your status as a qualified Indian entity.

„ Verify your employee’s proof of tribal membership.

„ Verify time allocated to fishing versus non-fishing activity. For example, consider a game warden

that is responsible for protecting other wildlife and has other duties, as well as patrolling the

treaty waters of his tribe. His employer should verify the percentage of time he engages in fishing

rights-related activities of his tribe.

„ Maintain records to support each employee’s time allocation.

„ Maintain records to support the 90% gross receipts rule (defined later in this chapter).

Tax Return Preparation

„ Do not include exempt wages on Form 941, Form 940 or Form W-2.

„ Wages paid for non-fishing activities are subject to all applicable employment taxes and

employment tax reporting, including Form W-2.

„ If only fishing rights-related income is paid to an individual, no Form W-2 is required.

„ A letter stating the amount and tax-exempt nature of an employee’s wages may be issued to the

employee to be used for various non-tax purposes, such as bank loans.

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Chapter 3: Treatment of Certain Payments

Special Definitions

A “qualified Indian entity” is 100% owned by a federally recognized Indian tribe or tribal

members, and substantially all management functions are performed by tribal members. It may

be jointly owned by more than one tribe or members of more than one tribe.

90% rule for processors and transporters - If the entity engages to any extent in any

substantial processing or transporting of fish, then at least 90% of the annual gross receipts of

the entity must be derived from the exercise of protected fishing rights of tribes whose members

own at least 10% of the equity interests in the entity.

Note: If a processor or transporter fails to meet the 90% rule, all income from that year is

taxable.

Examples of categories of tribal employees whose wages may be exempt or partially exempt:

„ Fishers, processors (including smoking), transporters

„ Hatchery workers

„ Environmental and conservation workers

„ Enforcement staff and tribal court personnel

„ Support staff, for example, secretary, accounting, payroll

„ Program director, executive director

„ Fishery biologist

„ Fishery aide

„ Fishery and habitat policy analyst

„ Water quality biologist

„ Habitat inventory and assessment technician

„ Legislative analyst

„ Information and education services

„ Data analyst

„ Policy analyst

„ Public information staff

Tribal Council Members

Revenue Ruling 59-354 sets forth a limited employment tax exception for amounts paid to tribal

council members for services performed by them as council members. Revenue Ruling 59-354

holds that while these amounts are includible in the council member’s gross income, they do not

constitute wages for purposes of FICA, FUTA and federal income tax withholding. Note: Tribes

with voluntary agreements under Section 218A of the Social Security Act should see Tribal

Social Security Fairness Act of 2018, below.

Tribal officials are liable for federal income tax on these wages, and some may voluntarily

have this tax withheld to avoid making quarterly estimated tax payments or personal year-end

deficiencies.

Council members’ salaries will be shown in box 1, Wages, tips, other compensation, of the Form

W-2. Additionally, in box 14, Other, you should include “Revenue Ruling 59-354” and the total

amount subject to Revenue Ruling 59-354. This will show why there are no amounts listed in the

boxes for federal income tax withheld (box 2) or FICA (boxes 3, 4 and 7).

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Chapter 3: Treatment of Certain Payments

Note: If the tribal council member requests to have federal income taxes withheld, box 2 will

reflect these voluntarily-withheld amounts. Voluntary withholding of FICA taxes to receive Social

Security and Medicare credit isn’t generally permitted, except as provided under the Tribal

Social Security Fairness Act of 2018 discussed in the next section.

Exhibit 3.1 (at the end of this chapter) is a sample of a Form W-2 for a tribal council member.

Tribal council members may receive two Forms W-2, one for tribal council member wages

and one for services performed in another capacity. See Form W-2 instructions for further

information.

Part of your responsibility as an employer is to provide the council member with either a copy

of Revenue Ruling 59-354 or a statement advising them that their W-2 is treated differently

(such as, salaries do not constitute wages for purposes of FICA or federal withholding taxes per

Revenue Ruling 59-354).

Tribal Social Security Fairness Act of 2018

The Tribal Social Security Fairness Act of 2018 allows federally recognized Indian tribes to

extend Social Security coverage to tribal council positions voluntarily through an agreement with

the Commissioner of Social Security under Section 218A of the Social Security Act.

Under this new legislation, if a tribe chooses to enter into an agreement for coverage, then all

tribal council positions are covered. Coverage will apply to any current and future tribal council

members and cannot be terminated once granted.

Interested tribes need to complete the Tribal Council Member Coverage Agreement to

request coverage. Tribes will communicate directly with SSA regional specialists to execute the

agreements. Coverage is effective the month after the month the agreement is signed, unless the

tribe requests a later effective date.

Tribes may request retroactive coverage for periods for which they have already paid FICA taxes

and not received a refund. Retroactivity can go back as far as needed without limit as long

as FICA taxes were paid. If you did not pay FICA during the retroactive period, you will not be

charged. You cannot pay into the retroactive period.

Visit the SSA at www.ssa.gov/people/aian/ for more information on the Tribal Social Security

Fairness Act

Claim for Over Collected Employee Social Security and Medicare Taxes

If the Indian tribal government withheld Social Security taxes and Medicare taxes from a

tribal council member’s salary, those over collected taxes may be refunded to the tribal

council member in one of two ways: 1) by the tribal council member filing Form 843, Claim for

Refund and Request for Abatement, or 2) the tribal government may file Form 941-X, Adjusted

Employer’s Quarterly Federal Tax Return or Claim for Refund, and refund the member’s share of

FICA taxes (to correct prior period Forms 941).

When filing Form 941-X, a written statement must be obtained from each tribal council employee

stating that the employee has not claimed, and will not claim, refund or credit for the amount of

over collection. The Indian tribal government can make a claim for both the employer and the

employee shares of Social Security and Medicare taxes for those employees who provide the

required written statements.

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Chapter 3: Treatment of Certain Payments

For those employees who do not provide statements, you (as the employer) can make a claim for

only the employer’s share of Social Security and Medicare taxes.

Next, complete the Form 941-X for each Form 941 being corrected. When completing the Form

941-X, be sure to complete Part 1 by checking the appropriate boxes and signing at the bottom

of Part 5. The tribe then reimburses the council members for their share of the Social Security

and Medicare taxes.

Finally, complete Form W-2c, Corrected Wage and Tax Statement, for each employee for whom

adjustments were made to Social Security and Medicare taxes. This corrects the previous

Form W-2 filed. Submit the Forms W-2c along with the Form W-3c to the Social Security

Administration.

Benefit Payments for Training or Retraining

Revenue Ruling 63-136 addresses the issue of benefit payments, received by individuals

undergoing training or retraining under the Area Redevelopment Act (75 Stat. 47-63), or the

Manpower Development and Training Act of 1962 (76 Stat. 23-33). Examples of state-funded

retraining programs are the Job Training Partnership Act (JTPA) and the Work Investment Act

(WIA). A tribe may establish its own work employment program.

As stated in Revenue Ruling 63-136, these benefit payments are not taxable. The payments

are intended to aid the recipients in their efforts to acquire new skills to prepare them for

better employment opportunities. As such, the payments fall into the same category as other

unemployment relief payments and are not includible in the recipient’s gross income.

Bonuses

Bonuses that the tribe pays an employee are includable in the employee’s income and are

shown as wages on Form W-2. If the bonuses are paid to the employee in the form of goods or

services, the fair market value of the goods or services will be added to the employee’s income.

Bonuses are considered supplemental wages paid in addition to the employee’s regular wages.

How you withhold on bonuses depends on whether the bonus is identified as a separate

payment from regular wages.

Bonus Combined with Regular Wages

If you pay bonuses with regular wages but do not specify the amount of each, withhold income

tax as if the total were a single payment for a regular payroll period.

Bonus Identified Separately from Regular Wages

If you pay bonuses separately (or combine them in a single payment and specify the amount of

each), the income tax withholding method depends partly on whether you withhold income tax

from your employee’s regular wages.

If you withheld income tax from an employee’s regular wages, you can use one of the following

methods for the bonus:

a) Withhold a flat 22% (no other percentage allowed).

b) Add the bonus and regular wages for the most recent payroll period this year. Figure the

income tax withholding as if the total were a single payment. Subtract the tax already withheld

from the regular wages. Withhold the remaining tax from the bonus.

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Chapter 3: Treatment of Certain Payments

If you did not withhold income tax from the employee’s regular wages, use method b, above.

(This would occur, for example, when the value of the employee’s withholding allowances

claimed on Form W-4 is more than the wages.)

Regardless of the method you use to withhold income tax on bonuses, they are subject to Social

Security, Medicare and FUTA (if applicable) taxes.

Example 1: – Form W-4 after 2020 You pay Sharon a base salary on the first of each month.

She is single and didn’t complete Steps 2, 3 or 4 on the Form W-4. Her July 1 pay is $2,000.

Using the current wage bracket tables, you withhold $95 using the standard rate. On July 15 you

pay Sharon a bonus of $1,000. Electing to use supplemental payment method b, you:

1) Add the bonus amount to the amount of wages from the most recent pay date ($1,000 +

$2,000 = $3,000).

2) Determine the amount of withholding on the combined $3,000 ($213 using the wage bracket

tables).

3) Subtract the amount withheld from wages on the most recent pay date from the combined

withholding amount ($213 - $95 = $118).

4) Withhold $118 from the bonus payment.

Example 2: The facts are the same as above, except you elect to use the flat rate method of

withholding on the bonus. You withhold 22% of $1,000, or $220, from Sharon’s bonus payment.

Example 3: – Form W-4 Prior to 2020 You pay John a base salary on the first of each month.

His most recent Form W-4 is from 2018. He is single and claimed one withholding allowance. He

didn’t enter an amount for additional withholding. His July 1 pay is $1,000. You decide to use the

Wage Bracket Method of withholding. Using Worksheet 3 and the withholding tables in section 3

of Pub. 15-T, you withhold $29 from this amount. In August John receives his salary and a bonus

of $500, which you combine with regular wages and don’t identify separately. You withhold

based on the total of $1500. The correct amount of withholding from the tables is $78.

Stipend Payments

A stipend is a fixed sum of money paid periodically for services or to defray expenses. The

fact that remuneration is termed a “fee” or “stipend” rather than salary or wages is immaterial.

Wages are generally subject to employment taxes and should be reported on Form W-2. Refer

to Publication 15 (Circular E), Employer’s Tax Guide, section 5, Wages and Other Compensation,

for rules on accountable and nonaccountable plans for employee business expenses.

Stipends or fees paid to an employee or an independent contractor are generally reportable.

However, if the stipend is intended to be a reimbursement of expenses and the requirements for

an accountable plan are met, the stipend may not be reportable.

Elected and Public Officials

To determine whether an elected or public official is an employee, tribal governments would

apply the ‘common law’ factors. The tribal government should use the three-prong test to

determine whether a common law employment relationship exists. The three prongs are:

1) Behavioral control;

2) Financial control; and

3) The relationship of the parties.

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Each determination is based upon its unique facts and circumstances. If there is any question

whether a person is a public official, obtain a copy of, or a reference to, the statute or ordinance

relating to the establishment of the position.

For more information on employer-employee relationships, refer to Chapter 2 of Publication

15 and Chapter 2 of Publication 15-A, Employer’s Supplemental Tax Guide. If you would

like the IRS to determine whether services are performed as an employee or independent

contractor, you may submit Form SS-8, Determination of Worker Status for Purposes of Federal

Employment Taxes and Income Tax Withholding.

Election Workers

If an election worker’s compensation is subject to withholding of FICA tax, reporting is required

for all compensation, regardless of the amount. If an election worker’s compensation is not

subject to withholding of FICA tax, information reporting is required for payments that aggregate

$600 or more in a calendar year. See Revenue Ruling 2000-6 to determine when an election

worker’s compensation is subject to withholding of FICA tax.

In the following examples, all the wages paid have been for services as an election worker only.

1) If wages paid during the year are less than $600, no Form W-2 is required. The wages are

not subject to FICA or federal income tax withholding. The election worker must report the

earnings as wages.

2) If wages paid during the year are between $600 and $1,999, file a Form W-2. FICA and federal

income tax withholding are not required. The election worker must report the earnings as

wages.

3) If wages are equal to or greater than $2,000 for 2022 (this amount is indexed for inflation), a

W-2 must be issued. The wages are subject to FICA, but not federal income tax withholding.

The election worker must report the earnings as wages.

For later years, see Special Rules for Various Types of Services and Payments in Publication 15

for the FICA wage requirement for Election Workers.

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Chapter 3: Treatment of Certain Payments

Per Capita Payments

When a tribe distributes revenue to all its members or groups of members, it has provided a

per capita payment. Under IGRA, a federally recognized Indian tribe may use net revenues from

Class II or Class III gaming activities to make per capita payments to its tribal members only if

four conditions are met:

1. It must prepare a plan to allocate revenues only for IGRA authorized uses to:

— fund tribal government operations or programs,

— provide for the general welfare of the Indian tribe and its members,

— promote tribal economic development,

— donate to charitable organizations, or

— fund local government and agency operations.

2. The Secretary of the Interior must approve the revenue’s use, particularly when it’s for funding tribal

government operations or programs and for promoting tribal economic development.

3. The tribe must protect and preserve minors’ and other legally incompetent persons’ interests

who are entitled to receive any of the per capita payments. The tribe disperses these

payments to their parents or legal guardian for their health, education or welfare, under a plan

approved by the Secretary and the tribe’s governing body.

4. The per capita payments are subject to federal taxation and tribes notify members of this tax

liability when payments are made.

Gaming Distributions to Minors

The IGRA requires protections of the minors’ interests for gaming revenue distribution. To satisfy

this requirement, many tribes establish trusts for minors and legal incompetents. A tribe may

serve as the grantor and owner of the trust.

Revenue Procedure 2011-56 clarifies that deposits into a trust are taxable at the time the

deposits are made. If the funds are left in the trust account until the beneficiary reaches the

age of majority the principal and interest are not reported as taxable income to the beneficiary.

The revenue procedure states that when an IGRA trust earns money or receives a deposit,

the beneficiaries are not required to include those amounts in their gross income. However,

beneficiaries who receive trust distributions would include the amounts as taxable income when

actually or constructively received.

Example: Jane, a minor, is a member of a federally recognized tribe. The tribe creates a trust for

her. She cannot receive any distributions from the trust before she reaches age 18. Therefore,

Jane does not include the trust’s income as part of her gross income. She is not in constructive

receipt of the funds placed in trust or income earned by the trust, because she doesn’t have

the unqualified right to receive immediate payment. As a result, the accumulated per capita

distributions and the related income are not taxable. However, if the tribe gives the trustee

(Jane’s legal guardian) approval to access the funds, those funds become taxable.

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Chapter 3: Treatment of Certain Payments

Withholding Requirements of Distributions from Net Gaming Revenue

Per capita distributions from gaming are subject to federal taxation under IRC Section 3402(r).

Tribes must notify its members of the tax liability when it makes the payments, reporting the

per capita distributions on Form 1099-MISC, Miscellaneous Income. When the tribal members

receive their Forms 1099-MISC, they report the income on the “Other Income” line of their Form

1040, U.S. Individual Income Tax Return, and include a description as “Indian gaming profits.”

These distributions are also subject to withholding. The Social Security number of all payees

should be secured prior to making payments. Otherwise, the tribe is potentially liable for backup

withholding provisions under IRC Section 3406.

In the payments section of Form 1040, the payee should report any withholding reflected on

Form 1099 as “federal income tax withheld from Forms W-2 or 1099.” The tribe determines

the withholding amount based on the total payment to the tribal member for the year.

Publication ublication 15-T, Federal Income Tax Withholding Methods contains the withholding

tables (identified as “Tables for Withholding on Distributions of Indian Gaming Profits to

TribalMembers”). The tribe is potentially liable for the difference between the amount required to

be withheld under the tables and the amount actually withheld.

The withholding tables are revised each year and generally published in January. There is a

threshold for requiring withholding which often changes annually. Once the threshold distribution

amount is reached, withholding is required between 10-24%.

Example: A tribe distributes $28,000 of per capita payments to tribal members during 2022.

A regular monthly per capita payment of $1,500 is issued during the months January through

December. During December, an additional per capita payment is made of $10,000, for a

cumulative distribution of $9,000.

The computation for withholding on monthly per capita payments would be based on the $1,500

monthly payment for January to November and for December, the aggregate payment amount

of $11,500. Using the tables for 2022 for monthly distributions, payments of $1,500 are subject

to 10% withholding on the amount over $1,079, or $42.10 (.10 x $421). The December payment

would be $1,267.79 plus 24% of the amount over 8,502, or $1,987.31 ($1,267.79 + $719.52 (.24 x

($11,500 - $8502))).

To avoid incorrect withholding, payments during a chosen distribution period should be

aggregated as in the example above.

Form SS-8

Occasionally, an Indian tribal government will be unable to determine whether a worker is

an employee or is self-employed and should be treated as an independent contractor. Many

individuals who have personal service contracts with Indian tribal governments may be

employees rather than independent contractors. The existence of a contract does not mean

that the individual performing the service is not an employee. It is important to the worker that

the employment status be determined as soon as possible so the earnings can be properly

reported.

If no clear resolution is possible, consider filing a Form SS-8 with the IRS for a determination.

A Form SS-8 is used to gather information to determine whether a worker is an employee for

federal employment taxes.

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Chapter 3: Treatment of Certain Payments

All pertinent facts about the individual’s work arrangement should be obtained and submitted

to the IRS on a Form SS-8. A Form SS-8 may be submitted by the tribal government or by

the worker. If a contract has been executed between the worker and the entity, a copy of the

contract should be furnished with the Form SS-8. When a Form SS-8 is submitted to the IRS, all

the facts are analyzed and the determination of a worker’s status is presented to the employer in

the form of a determination or letter ruling.

Several problems arise for a worker when incorrectly treated as an independent contractor. To

begin with, the worker would probably pay more taxes (that is, Self-Employment Contributions Act

(SECA) taxes) than if the worker were being treated correctly as an employee. As an employee, only

the employee’s portion of the Social Security and Medicare taxes are withheld and paid from the

employee’s wages. As an independent contractor, the worker is not eligible for any unemployment

benefits or other benefit plans that the worker would have as an employee. Also, as an independent

contractor, the worker may have to pay estimated tax payments each quarter.

References

„ Internal Revenue Code Section 7873

„ Publication 15, (Circular E), Employer’s Tax Guide

„ Publication 15-A, Employer’s Supplemental Tax Guide

„ Publication 15-T, Federal Income Tax Withholding Methods

„ Revenue Ruling 59-354

„ Revenue Ruling 63-136

„ Revenue Ruling 2000-6

„ Form 843, Claim for Refund and Request for Abatement

„ Form 941-X, Adjusted Employer’s Quarterly Federal Tax Return or Claim for Refund

Exhibit 3.1

Sample Form W-2 for Tribal Council Member

Note: The below sample Form W-2 only applies to tribes that do not have an agreement

under Section 218A of the Social Security Act with the Commissioner of Social Security.

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Chapter 4

Tipped Employees

Tips are Wages

Tips are defined as wages under IRC Sections 3121(a) and 3401(a). Tips received by an

employee in the course of employment should be reported to the employer whether received

directly from customers or indirectly in the form of shared tips or tip-outs from fellow employees.

For purposes of FICA, the term “wages” means all remuneration for employment, including the

cash value of all remuneration (including benefits) paid in any medium other than cash (unless

specifically excepted). For purposes of federal income tax withholding, the term “wages” is

similar to the one for FICA.

All tips your employees receive are taxable income subject to federal income tax. Cash tips

include tips received directly from customers, tips from other employees under any tip-sharing

arrangement and charged tips (for example, credit and debit card charges) that are distributed to

the employee. Both directly and indirectly tipped employees must report tips received to you.

Cash tips of $20 or more an employee receives in a calendar month while working for any one

employer are wages subject to FICA and income tax withholding. Cash tips include charged tips,

and tips paid by check or other cash equivalents. Even though these tips are taxable income,

tips of less than $20 received by an employee during a calendar month while working for a

particular employer are not wages for FICA or federal income tax withholding purposes. Once

the amount of tips received in a calendar month reaches $20 from any one employer, the entire

amount of tips received must be reported to the employer and included in wages (not just the

amount over $20).

An employee who receives $20 or more in cash tips must report those tips in writing to you by

the tenth day following the month in which the tips are received (or more often if required by the

employer). Employees who receive tips of less than $20 in a calendar month are not required to

report their tips to you but must report these amounts as income on their tax returns and pay

taxes, if any.

Service Charges

Service charges added to a bill or fixed by the employer that the customer must pay will not

constitute a tip when paid to an employee, but rather constitute non-tip wages. These non-tip

wages are subject to Social Security, Medicare and federal income tax withholding. Common

examples of service charges (sometimes called auto-gratuities) in service industries are:

„ Large party charge (restaurant),

„ Bottle service charge (restaurant and night-club),

„ Room service charge (hotel and resort),

„ Contracted luggage assistance charge (hotel and resort), and

„ Mandated delivery charge (pizza or other retail deliveries).

These service charges are treated as wages and are includible on Form W-2.

Large Food and Beverage Establishments

If you operate a large food or beverage establishment, you must file Form 8027, Employer’s

Annual Information Return of Tip Income and Allocated Tips, for each calendar year, and may be

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Chapter 4: Tipped Employees

required to allocate tips to your employees. A large food or beverage establishment is a food or

beverage operation where:

„ Food and beverages are provided for consumption on the premises,

„ Tipping is a customary practice, and

„ There are more than 10 employees who work more than 80 hours on a typical business day.

For the Form 8027 filing requirement:

„ Casino buffets are included if tipping is customary.

„ Ten or more employees include all employees at the establishment, not just the tipped

employees.

„ If you own more than one establishment, you must file a separate Form 8027 for each

establishment.

„ If there is more than one business operating within a single building, and if the receipts for the

businesses are recorded separately, then each business should file a separate Form 8027.

File Form 8027 by the last day of February for the preceding calendar year. However, if you file

electronically, the due date is March 31, for the preceding calendar year. You may request an

extension on Form 8809, Application for Extension of Time to File Information Returns, if you

file the request before the due date of the return. Refer to Publication 1239, Specifications for

Electronic Filing of Form 8027, to file electronically.

Allocated Tips

IRC Sections 6053(c)(2) and (3) require large food and beverage establishments to allocate tips

to those employees who report tips of less than 8% of gross receipts to them (or a lower rate

approved by the IRS). You may base the allocation on each employee’s share of gross receipts

or share of total hours worked, or on a written agreement between you and your employees.

You are required to report the amount allocated on Form W-2 in the box labeled “Allocated Tips”

for each employee to whom you allocated tips. Penalties may be imposed for both failing to file

and failing to furnish a correct Form W-2 for each form on which you fail to include this required

information. Do not withhold income, Social Security or Medicare taxes on allocated tips, since

your employee did not report these amounts to you. See Exhibit 4.1 for an example.

Whether or not you are required to allocate tips, your employees must continue to report all tips

to you, and you must use the amounts they report to figure payroll taxes.

Tip Rate Reduction Requests

You may request a reduced allocation rate by submitting a petition that clearly demonstrates that

a rate less than 8% should apply. Refer to Instructions for Form 8027 on how to apply.

IRC Section 3121(q)

IRC Section 3121(q) provides that tips are deemed to have been paid by the employer for

purposes of FICA tax and requires that employers withhold both the employer and employee

shares of FICA. It also provides that unreported tips are subject to employer FICA tax. IRC

Section 3121(q) allows the IRS to assess the employer’s share of FICA taxes on reported tips

(for example, where the employee did not furnish a statement reporting the tips or to the extent

the statement is inaccurate or incomplete). When determining the employer’s additional FICA tax

liability, the tips are deemed paid on the date the Notice and Demand is made to the employer

by the IRS.

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Chapter 4: Tipped Employees

Employer’s General Responsibilities

The employer is responsible for deducting and depositing the employee’s FICA tax on tips

included in the written report furnished by the employee to the extent that collections can be

made from the employee’s wages (under the employer’s control, excluding tips) on or after the

time the written statement is furnished.

Additional FICA Tax Payable

An employee’s regular pay may not be enough for the employer to withhold all the taxes an

employee owes on the regular pay and reported tips. If this happens an employee may give the

employer more money to cover the taxes.

If the employee’s pay under the employer’s control, including any additional money given by

the employee, is not enough to cover all the taxes, Treasury Regulations Section 31.3102-3(a)(1)

clarifies the sequence the employer must follow when paying over the withheld taxes:

1) All taxes (FICA, federal withholding, and state and local) on regular pay, exclusive of tips

2) Social Security and Medicare taxes on reported tips

3) Federal, state and local taxes on reported tips

The employer must furnish to the employee a written statement showing the amount of

employee FICA on tips that exceeds the tax the employer can collect from the wages under the

control of the employer. The statement is provided on the employee’s Form W-2. The employee

is required to report and pay over to the IRS the portion of employee tax that the employer was

unable to withhold due to the lack of employee wages available to cover the liability.

Example: Employee taxes on wages and tips exceed regular wages:

Grady is a blackjack dealer for a tribal casino. He routinely receives tips as a part of his

compensation as a dealer. The casino pays him a salary of $200 per week. He receives tips in

cash each day that he works.

Grady keeps a daily tip record and reports tips to his employer every other Friday. He has a Form

W-4, Employee’s Withholding Allowance Certificate, on file with his employer (the casino) from 2018.

It reflects that he is single with one exemption. For the two-week period ending April 12, Grady

reported $1,200 in cash tips to his employer. His regular wages for the same two-week period are

$400. The casino tip policy allows Grady to keep his cash tips at the time he receives them.

The following computation illustrates that Grady’s total withholding for wages and tips exceeds

his regular wages, causing him to owe taxes to his employer.

Gross Regular Pay..........................................................................................$400.00

Tips Reported............................................................................................... $1,200.00

Deductions

Deductions from

Gross Regular Pay

Deductions from

Tip Income

Total

FICA

$30.60

$91.80

$122.40

Federal Withholding

$100.00*

$200.00*

$300.00*

State Withholding

$26.00

$78.00

$104.00

Total

$156.60

$369.80

$526.40

Net Paycheck

Zero**

* The withholding amounts are for this example only. The withholding tables were not consulted

for federal or state withholding taxes.

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Chapter 4: Tipped Employees

**The employee owes the amount of tax that exceeds his regular paycheck ($526.40 – $400.00 =

$126.40).

Because all tips are taxable wages to the employee, this situation creates a withholding shortfall

for Grady. The withholding on his wages plus his tips exceeds his biweekly paycheck from his

regular salary.

If Grady does not make arrangements with his employer to pay all his FICA and withholding, his

taxes will be applied in the following order:

1) Withholding on regular wages (FICA, federal income, state income) ($156.60)

2) FICA withholding tax on tips ($91.80)

3) Federal income tax withholding ($151.60 of the $200 due)

Net paycheck = $0 ($400 less $156.60, $91.80 and $151.60)

Grady owes $48.40 in federal income tax withholding and $78 in state withholding.

Because Grady’s regular pay is not enough for his employer to withhold all the taxes he owes

on his regular pay plus his reported tips, he may give his employer money until the close of the

calendar year to pay the rest of the taxes.

His employer may also collect any taxes that remain unpaid from his next paycheck. If

withholding taxes remain uncollected at the end of the year, Grady may be subject to a penalty

for underpayment of estimated tax.

In the example, Grady’s regular paycheck paid all his FICA (Social Security and Medicare taxes).

This is not always the case; sometimes an employee may owe Social Security and Medicare

taxes uncollected at the end of the year. These uncollected taxes will be shown in box 12 of

Form W-2 and must be reported on the employee’s Form 1040, U.S. Individual Income Tax

Return.

Employer Tip Employment Tax Responsibilities

„ Include tips as wages, withholding FICA and federal income tax, and include on Form 941 and

Form W-2

„ Allocate tips when required

„ File the information report, Form 8027, if required

Employer and Employees’ Recordkeeping Responsibilities (Specific to Large Food

and Beverage Establishments)

The written statement furnished by the employee to the employer for tips received by the

employee must be signed by the employee and should disclose:

„ The name, address and SSN of the employee.

„ The name and address of the employer.

„ The period for which, and the date on which, the statement is furnished. If the statement is for a

calendar month, the month and year should be specified. If the statement is for a period of less

than one calendar month, the beginning and ending dates of the period should be shown (for

example, January 1 through January 8, 20XX).

„ The total amount of tips received by the employee during the period covered by the statement,

which are required to be reported to the employer.

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No particular form is required; however, Form 4070 (included in Publication 1244, Employee’s

Daily Record of Tips and Report to Employer) may be used unless the employer provides some

other form.

If the employer chooses to use another form, the form must meet the requirements of Treasury

Regulation Section 31.6053-1(b)(2)(ii):

„ The form is to be used solely for the purpose of reporting tips,

„ It meets the requirements of subparagraph (1) (of the regulations as listed above), and

„ A blank copy must be made available to the employee for completion and retention by the

employee.

In lieu of a special form for tip reporting, Treasury Regulation Section 31.6053-1(b)(2)(ii) provides

that an employer may provide regularly used forms (such as time cards) for the employees

to use in reporting tips. The form must include the period for which, and the date on which,

the statement is furnished, the total amount of tips the employee received and identifying

information, which will ensure identification of the employee by the employer.

Tip Rate Determination and Education Program (Tip Agreements)

The IRS began its Tip Rate Determination/Education Program (TRD/EP) for businesses where

tip income is customary to improve and ensure compliance by employers and employees with

statutory provisions on tip income. Employers may participate in the TRD/EP. The program

primarily consists of voluntary tip compliance agreements developed to improve tip income

reporting by helping taxpayers to understand and meet their tip reporting responsibilities. These

voluntary tip compliance agreements offer many benefits for the employer and the employee.

Employers in the food and beverage industry or industries with tipped employees other than the

gaming industry may enter into a Tip Rate Determination Agreement (TRDA). Businesses in the

gaming industry may enter into a Gaming Industry Tip Compliance Agreement (GITCA).

The IRS will assist applicants in understanding and meeting the requirements for participation.

For more information about GITCA and TRDA agreements, search for Market Segment

Understandings (MSU) by using keyword “MSU tips” on IRS.gov.

References

„ Publication 15, (Circular E), Employer’s Tax Guide

„ Publication 15-T, Federal Income Tax Withholding Methods

„ Publication 531, Reporting Tip Income

„ Instructions for Form W-2, Box 1 and box 8

„ Publication 3148, Tips on Tips - A Guide to Tip Income Reporting for Employees Who Receive

Tip Income

„ Publication 3144, Tips on Tips - A Guide to Tip Income Reporting for Employers in Businesses

Where Tip Income is Customary

„ Instructions for Form 941, Line 5b, Taxable Social Security Tips

„ Form 8027 and instructions, Employer’s Annual Information Return of Tip Income and Allocated

Tips

„ Publication 1239, Specifications for Electronic Filing of Form 8027, Employer’s Annual

Information Return of Tip Income and Allocated Tips

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Chapter 4: Tipped Employees

References for your employees

„ Publication 1244, Employee’s Daily Record of Tips and Report to Employer (This publication

includes Form 4070, Employee’s Report of Tips to Employer, and Form 4070A, Employee’s Daily

Record of Tips.)

„ Form 4137, Social Security and Medicare Tax on Unreported Tip Income

Exhibit 4.1,

Form W-2, Wage and Tax Statement, showing allocated tips

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Chapter 5

Employee Business Expense Reimbursements

Publication 15, (Circular E), Employer’s Tax Guide, defines employee business expense

reimbursements. A reimbursement or allowance arrangement is a system by which you

pay the advances, reimbursements, and charges for your employees’ business expenses.

The reimbursement policy of the employer will determine the proper tax treatment of these

reimbursed employee business expenses. This chapter addresses the two basic types of

reimbursement arrangements that can exist between an employer and an employee and how

you handle these reimbursements for income tax purposes.

There are two general types of expense reimbursement plans that an employer may use to

reimburse employees for out-of-pocket business expenses:

1) An accountable plan, and

2) A nonaccountable plan.

The principal difference is whether employees are required to substantiate expenses

(accountable plan) to their employer for the amounts they incur for job related expenses, or not

(nonaccountable plan).

Accountable Plan

Amounts paid under an accountable plan are not wages and are not subject to income tax

withholding and payment of Social Security, Medicare, State Unemployment Tax Act (SUTA) and

Federal Unemployment Tax Act (FUTA) taxes.

To qualify as an accountable plan, the plan must contain the following features:

„ The employee’s expenses must be incurred in connection with services as an employee with no

personal expenses.

„ The employee must substantiate expenses to the employer within a reasonable period of time

from when the expenses were incurred.

„ The employer must require that any excess advance or reimbursement over the actual

substantiated expense be returned within a reasonable period of time.

If the expenses covered by this arrangement are not substantiated, or amounts in excess

of expenses are not returned within a reasonable period of time, the amount is treated as

paid under a nonaccountable plan. A reasonable period of time depends on the facts and

circumstances. It is considered reasonable if the employees:

1) Receive the advance within 30 days of the time they incur the expense.

2) Adequately account for the expenses within 60 days after the expenses were paid or incurred.

3) Return any amounts in excess of expenses within 120 days after the expense was paid or

incurred.

Also, it is considered reasonable if you give your employees a periodic statement (at least

quarterly) that asks them to either return or adequately account for outstanding amounts and

they do so within 120 days.

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Chapter 5: Employee Business Expense Reimbursements

Nonaccountable Plan

Simply stated, a reimbursement plan that doesn’t meet the requirements for an accountable

plan is a nonaccountable plan. Under a nonaccountable reimbursement plan, the employee is

generally not required to substantiate any expenses to the employer. Payments to your employee

for travel and other necessary expenses of your business under a nonaccountable plan are

treated as supplemental wages subject to income tax withholding, Social Security, Medicare,

SUTA and FUTA taxes. The payments are treated as paid under a nonaccountable plan if:

„ Your employee is not required to or does not substantiate timely those expenses to you with

receipts or other documentation, or

„ You advance an amount to your employee for business expenses and your employee is not

required to or does not return timely any amount not used for business expenses.

See Section 7 of Publication 15 for more information on supplemental wages.

Per Diem or Other Fixed Allowance

A per diem allowance is a fixed amount of daily reimbursement an employer gives an employee

for lodging, meals and incidental expenses when the employee is away from home on business.

You may reimburse your employees by travel days, miles or some other fixed allowance. In these

cases, your employee is considered to have accounted to you if the payments do not exceed

rates established by the federal government. The standard mileage rates are updated annually.

See www.irs.gov/tax-professionals/standard-mileage-rates for the current rates.

The federal per diem rates for meals and lodging in the continental U.S. are published by the

U.S. General Services Administration (GSA).

Per diem allowances may be used only if the time, place and business purpose of the travel

are substantiated by adequate records or other evidence. An employee can satisfy the

substantiation requirements for business vehicle expenses in two general ways:

1) An employee can submit periodically to the employer a log of business miles driven. The

expense is deemed substantiated to the extent of the standard mileage rate.

2) An employee can submit documentation of actual vehicle expenses (gas, maintenance,

insurance and so on) with support for the percentage of business use of the vehicle (for

example, a log showing both business and personal mileage).

If the per diem or allowance exceeds the federal rate, and you do not require your employees to

return the difference between the two rates, you must report the excess amount as wages. This

excess amount is subject to income tax withholding, and payment of Social Security, Medicare

and FUTA taxes. Report the nontaxable (substantiated) portion of the per diem or mileage

allowance in box 12 of Form W-2 using code L.

Example: The tribe sent an employee on a five-day business trip to Phoenix and gave the

employee a $400 advance to cover meals and incidental expenses ($80 per day). The federal per

diem for meals and incidental expenses for Phoenix is $51.75 for the first and last day of travel

and $69 for non-travel days. The tribe does not require the employee to return the difference

between the advance and the federal per diem rate allowed for Phoenix:

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Chapter 5: Employee Business Expense Reimbursements

Per Diem

Daily Rates

Advance travel payment

Total

$400.00

First and last day per diem

($69.00 x 0.75) $51.75

$103.50

3 non-travel days

$69.00

$207.00

Total federal diem allowed

$310.50

Taxable per diem

$89.50

The $89.50 excess federal per diem amount will be included in box 1 on Form W-2. Box 12 will

show $310.50 using code L.

References

„ Publication 15, (Circular E), Employer’s Tax Guide

„ Publication 15-B, Employer’s Tax Guide to Fringe Benefits

„ Publication 463, Travel, Gift, and Car Expenses

„ Publication 5137, Fringe Benefit Guide

„ Instructions for Forms W-2 and W-3

Exhibit 5.1 - Reporting Reimbursements Table

Reporting Reimbursements

If the type of reimbursement (or other expense

allowance) arrangement is under

Then the employer reports on Form W-2:

An ACCOUNTABLE PLAN with:

— Actual expense reimbursement

— Adequate accounting made and excess returned

No amount.

— Actual expense reimbursement

— Adequate accounting and return of excess both

required but excess not returned

The excess amount as wages in box 1.

— Per diem or mileage allowance up to the federal

rate

— Adequate accounting and excess returned

No amount.

— Per diem or mileage allowance up to the federal

rate

— Adequate accounting and return of excess both

required but excess not returned

The excess amount as wages in box 1. The

amount up to the federal rate is reported only in

box 12 – it is not reported in box 1.

— Per diem or mileage allowance exceeds the

federal rates

— Adequate accounting up to the federal rate only

and excess not returned

The excess amount as wages in box 1. The

amount up to the federal rate is reported only in

box 12 – it is not reported in box 1.

A NONACCOUNTABLE PLAN with:

Either adequate accounting or return of excess, or

both, not required by plan

The entire amount as wages in box 1.

No reimbursement plan

The entire amount as wages in box 1.

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Chapter 6

Fringe Benefits

Publication 15-B, Employer’s Tax Guide to Fringe Benefits, addresses the question, “Are fringe

benefits taxable?” If you provide your employees with a taxable fringe benefit, the benefit is

subject to employment taxes and must be reported on Form W-2. However, you can use special

rules to withhold, deposit and report the employment taxes. See Section 4 of Publication 15-B,

Rules for Withholding, Depositing and Reporting.

What is a Fringe Benefit?

A fringe benefit is any property, service, cash or cash equivalent in addition to regular pay

provided to an employee by an employer in connection with the performance of services.

Treasury Regulation Section 1.61-21 states that gross income includes compensation for

services, including fees, commissions, fringe benefits or similar items. Whether a particular

fringe benefit is taxable depends on whether there is a specific statutory exclusion that applies

to the benefit. Employers should treat taxable fringe benefits as wages for employment tax

purposes.

Because the tax treatment of fringe benefits can vary depending on the facts and circumstances

under which they are provided, it may be helpful to follow a three-step analysis:

1) Identify the particular fringe benefit and start with the assumption that its value will be taxable

as compensation to the employee.

2) Check to see if there are any statutory provisions that exclude the fringe benefit from the

employee’s gross income.

3) Value any portion of the benefit that is not excludable for inclusion in the employee’s gross

income.

Examples of fringe benefits include:

„ Accident/health benefits

„ Allowances not accounted for (for example, clothing)

„ Automobile allowances

„ Awards and prizes

„ Back pay awards

„ Bonuses

„ Cafeteria plans

„ Club memberships

„ Dependent care assistance programs

„ Educational reimbursements

„ Employee discounts

„ Frequent flier credits

„ Group term life insurance

„ Law enforcement housing assistance

„ Legal counseling

„ Local transportation for commuting

„ Lodging on the employer’s premises

„ Meal money

„ Moving expense reimbursements

„ Parking

„ Professional licenses or dues for professional organizations

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Chapter 6: Fringe Benefits

„ Severance pay

„ Scholarships and fellowships

„ Sick pay

„ Stipends

„ Travel reimbursement

„ Use of vacation homes

„ Vacations

These fringe benefits may or may not be taxable to the employee who receives the benefit. Refer

to Publication 15-B to determine if fringe benefits are taxable and how to value them.

Employer-Provided Vehicles

Employer-provided vehicles are sometimes available for employees to use during off-duty hours.

The personal use of a tribally-owned vehicle is a taxable fringe benefit. Personal use includes

the value of commuting to and from work in the vehicle, even if the vehicle is taken home for the

convenience of the employer.

The value of the fringe benefit must be included in income as wages and is subject to income

and employment taxes. The three methods that can be used to determine the value of the

vehicle provided to the employee are the:

1) Commuting value rule,

2) Cents-per-mile rule, or

3) Automobile lease rule.

There are certain employees designated as “control employees” who must use the automobile

lease rule. A “control employee” is a government employee who is either an elected official or

whose compensation is equal to or exceeds Federal Government Executive Level V. (See the

Office of Personnel Management website for compensation information.) See Chapter 3 of

Publication 15-B for further information on control employees.

Qualified Nonpersonal Use Vehicle

A qualified nonpersonal use vehicle is any vehicle the employee is not likely to use more than

minimally for personal purposes because of its design. Qualified nonpersonal use vehicles are:

„ Clearly marked police and fire vehicles

„ Unmarked vehicles used by law enforcement officers - the officer must be authorized to carry a

firearm, execute search warrants and make arrests

„ An ambulance or hearse used for its specific purpose

„ Any vehicle designed to carry cargo with a loaded gross vehicle weight over 14,000 pounds

„ Delivery trucks with seating for the driver only or driver plus a folding jump seat

„ A passenger bus with a capacity of at least 20 passengers used for a specific purpose

„ School buses

„ Tractors and other special purpose farm vehicles

If an employee drives one of these vehicles home, the personal use of the vehicle is not a

taxable fringe benefit.

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Chapter 6: Fringe Benefits

All Other Employer-Provided Vehicles

If you have an employer-provided vehicle that does not qualify as a nonpersonal use vehicle, and

the employee uses the vehicle for personal use (which includes commuting), the personal use of

the vehicle is a noncash taxable fringe benefit.

It is the employer’s responsibility to determine the actual value of this fringe benefit and to

include the taxable portion in the employee’s income.

Example: A tribally-owned pickup truck that is not a police vehicle has the name of the tribe

marked on the vehicle. Usually the employee is allowed to take the vehicle home because he

is “on call.” The vehicle is not a qualified nonpersonal use vehicle, thus, the commuting is a

noncash taxable fringe benefit. The value of the personal use of this vehicle must be included as

wages to the employee, and it is subject to income and employment taxes.

Lodging on Your Business Premises

You can exclude the value of lodging furnished to an employee from the employee’s wages if:

„ It is furnished on your business premises,

„ It is furnished for your convenience, and

„ The employee accepts it as a condition of employment.

This exclusion does not apply if you allow your employee to choose to receive additional pay

instead of lodging.

On your business premises. For this exclusion, your business premises is generally your

employee’s place of work.

For your convenience. Whether you furnish lodging for your convenience as an employer

depends on the facts and circumstances. You furnish the lodging to your employee for your

convenience if you do this for a substantial business reason other than to provide the employee

with additional pay. This is true even if a law or an employment contract provides that the

lodging is furnished as pay. However, a written statement that the lodging is furnished for your

convenience isn’t sufficient.

Condition of employment. Lodging meets this test if you require your employees to accept

the lodging because they need to live on your business premises to be able to properly perform

their duties. Examples include employees who must be available at all times and employees who

couldn’t perform their required duties without being furnished the lodging.

It doesn’t matter whether you must furnish the lodging as pay under the terms of an employment

contract or a law fixing the terms of employment.

Example: Joan, an employee of a hospital, is given the choice of living at the hospital free of

charge or living elsewhere and receiving a cash allowance in addition to her regular salary. If

Joan chooses to live at the hospital, the hospital cannot exclude the value of the lodging from

her wages because she is not required to live at the hospital to properly perform the duties of

her employment.

Example: A police officer of an Indian tribal government is required to live in housing furnished

by the tribe, as a condition of employment. The tribe requires this as a matter of security for the

residents in the neighborhood and as a convenience for the tribe to protect the housing facilities.

The value of the lodging is not included in the police officer’s salary since the housing is a

condition of employment, it is on the business premises and it is a convenience to the tribe.

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Chapter 6: Fringe Benefits

References

„ Publication 15, (Circular E), Employer’s Tax Guide

„ Publication 15-A, Employer’s Supplemental Tax Guide

„ Publication 15-B, Employer’s Tax Guide to Fringe Benefits

„ Publication 15-T, Federal Income Tax Withholding Methods

„ Publication 463, Travel, Gift, and Car Expenses

„ Publication 525, Taxable and Nontaxable Income

„ Publication 970, Tax Benefits for Education

„ Publication 5137, Fringe Benefit Guide

„ Instructions for Forms W-2 and W-3

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Chapter 7

Retirement Plans

This chapter provides basic information on the retirement plans that Indian tribal governments

may have, as well as annual reporting requirements that apply to these plans. Since this area

of law can be quite complex, this chapter is not all-inclusive. Your retirement plan administrator

should address more detailed questions.

Retirement Plans that Indian Tribal Governments May Maintain:

1) Simplified Employee Pension Plan (SEP) – SEPs provide a simplified method for employers

to make contributions to a retirement plan for their employees. Instead of setting up a qualified

plan with a separate trust, the employer contributes to an Individual Retirement Account or

Annuity (IRA) (commonly referred to as a SEP-IRA) set up for each plan participant that meets

the requirements of IRC Section 408(k).

2) SIMPLE IRA Plan – A Savings Incentive Match Plan for Employees (SIMPLE) IRA plan is

described under IRC Section 408(p). This plan provides small employers with a simplified

method to contribute toward their employees’ and their own retirement savings. Employees

may choose to make salary reduction contributions and the employer is required to make

either matching or nonelective contributions. Contributions are made to an IRA set up for each

employee (a SIMPLE IRA). A SIMPLE IRA plan can be established only if the employer had 100

or fewer employees who earned $5,000 or more in compensation during the preceding year.

An employer cannot sponsor a SIMPLE plan if they currently sponsor another plan.

3) 401(k) Plan – A 401(k) plan is also referred to as a cash or deferred arrangement (CODA). A

401(k) plan is a qualified plan (under IRC Section 401(a)) that includes a feature allowing an

employee to elect to have the employer contribute a portion of the employee’s wages (pre-tax

or Roth contributions) to an individual account under the plan. The CODA must be part of a

profit-sharing, stock bonus or pre-ERISA money purchase plan. Indian tribal governments are

allowed to maintain 401(k) plans, effective January 1, 1997.

4) 403(b) Plan – A 403(b) plan (also called a tax-sheltered annuity (TSA) plan) is a retirement

plan offered by public schools and certain 501(c)(3) tax-exempt organizations. Contributions

may be deferred and invested in annuity contracts or mutual funds. Employees save for

retirement by contributing to individual accounts. Employers can also contribute to employees’

accounts. Indian tribal governments are eligible to maintain this type of plan only in limited

circumstances. Generally, the organization associated with the tribal government must be an

educational institution, a 501(c)(3) organization or a grandfathered Indian tribe (see definitions).

5) Qualified Plan – A qualified plan, also referred to as a 401(a) plan, satisfies the requirements

of IRC Section 401(a). Examples of qualified plans include profit-sharing, money purchase,

401(k), target benefit or defined benefit plans.

All these plans, with the exception of certain qualified plans, are deferred compensation plans

that allow employees to save for retirement on a pre-tax basis.

Note: Indian tribal governments cannot maintain governmental deferred compensation plans

under IRC Section 457. They are not an eligible employer for 457 purposes.

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Chapter 7: Pension Plans

Limits on Contributions and Benefits

There are limits to how much employers and employees can contribute to a plan (or IRA) each

year. The plan must specifically state that contributions or benefits cannot exceed certain limits.

The limits differ depending on the type of plan. IRC Section 415 requires the limits to be adjusted

annually for cost-of-living increases.

Definitions

Deferred Compensation – Deferred compensation is an amount the employer deducts from the

employee’s current compensation and pays to a retirement plan. Employees do not pay tax on

qualified deferred compensation until distributions are received (except with Roth contributions).

Participation in a deferred compensation plan allows employees to “defer” or delay, receiving a

portion of their wages until a later date, generally when they retire or reach a distributable event.

Rollover – The contribution or direct transfer of a qualified plan distribution to another plan

within 60 days. The plan receiving the rollover may be any of the following:

„ Another qualified plan

„ An IRA

„ A SEP-IRA

„ A SIMPLE IRA (after two years)

„ For distributions made after December 31, 2001, a Section 403(b) plan

501(c)(3) Organization – Defined generally as one organized and operated exclusively for the

following purposes:

„ Religious

„ Charitable

„ Scientific

„ Public safety testing

„ Literary or education

„ To encourage national or international amateur sports competition

„ For the prevention of cruelty to children or animals

These organizations include:

„ Charities

„ Social welfare agencies

„ Private hospitals

„ Health care organizations

„ Private schools

„ Religious institutions

„ Research facilities

Grandfathered Indian Tribe – An Indian tribal government; a subdivision, agency or

instrumentality of an Indian tribal government; or a corporation chartered under federal, state or

tribal law that is owned in part by any of the foregoing is treated as an employer described in

501(c)(3) with respect to any annuity contract purchased in a plan year beginning before January

1, 1995.

Catch-Up Contributions – Elective deferrals that are made under IRC Section 414(v) in excess

of the limits under IRC Sections 402(g), 403(b), 408(p) and 415 to 401(k), 403(b), SARSEP (SEP

that includes a salary reduction arrangement), SIMPLE IRA or SIMPLE 401(k) plans. Catch-

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Chapter 7: Pension Plans

up contributions may be made only by participants who are at least age 50 by the end of the

year in which the catch-up contributions are being made.

Qualified Plan – A qualified plan is a plan that meets the requirements of IRC Section 401(a).

These requirements are generally designed to ensure that the plan is established and operated

for the benefit of a broad class of employees. Meeting the requirements entitles the plan

sponsor, the trust or other funding vehicle and participants to certain income tax advantages.

Nonqualified Plan – A nonqualified plan is a plan that does not meet the requirements of IRC

Section 401(a). As a result, the plan sponsor, participants and trust or other plan funding vehicle

are generally not entitled to income tax benefits, unless the plan is intended to be, and meets

the requirements of, for example, Section 403(b) plans, SEPs, SIMPLE plans and certain IRAs.

Salary Reduction Arrangement – An agreement where the employee chooses to have part of

their pay contributed to a retirement plan rather than receive it in cash.

Elective Deferral – Contributions made by the employer at the election of the employee to a

retirement plan via a salary reduction agreement. The elective deferrals are excluded from the

employee’s gross income (compensation) (except Roth contributions) and include deferrals under

a 401(k), 403(b), SIMPLE IRA or SARSEP plan.

Nonelective Contributions – Employer contributions made to any type of plan, excluding those

employer contributions made under a salary reduction agreement. Employer contributions also

do not include matching contributions.

Income Tax Withholding

Generally, the participant’s pre-tax contributions (deferred compensation) plus any earnings

on these contributions will not be included in gross income until that amount is paid or made

available to the participant or beneficiary.

Therefore, this amount will not be subject to income tax withholding at the time the contribution

is made. However, the total amount contributed during the tax year will be reflected in box 12 on

the participant’s Form W-2.

Social Security, Medicare and FUTA Taxes

Qualified plans, TSAs, SEPs and SIMPLE IRA plans – Generally, elective deferrals made by

an employee are excluded from the employee’s gross income. However, they are included in

wages for purposes of Social Security, Medicare and FUTA taxes.

Employer contributions to these plans are not included in the definition of wages and are not

subject to Social Security, Medicare or FUTA taxes unless the payment is made for services

rendered.

Nonqualified Deferred Compensation Plans – Annual deferrals under a nonqualified plan are

treated as wages subject to Social Security, Medicare and FUTA taxes in the tax year in which

the later of the following occurs:

„ When the services are performed, or

„ When there is no substantial risk of forfeiture of the employee’s right to the deferred amount.

A substantial risk of forfeiture exists where rights in property that are transferred are conditioned

on the future performance of services or the occurrence of a condition related to the purpose

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Chapter 7: Pension Plans

of the transfer. Annual deferrals mean the amount of compensation deferred under the plan

whether by salary reduction or nonelective employer contribution during a taxable year.

Example: The tribe’s nonqualified plan provides for elective deferrals from current salary, as well

as a 1% of salary nonelective contribution for each employee who participates in the plan and

who is employed with the tribe during the plan year. All deferrals and contributions, including the

tribe’s contributions, are fully and immediately vested.

Because these contributions are not subject to a substantial risk of forfeiture (and the services

to which they relate have already been performed), the elective deferrals are required to be taken

into account as wages for purposes of the Social Security, Medicare and FUTA tax at the time of

the deferral. The tribe’s nonelective contribution is required to be taken into account as wages at

the time of the contribution for purposes of the Social Security, Medicare and FUTA tax.

Example: Assume the same facts as above, except the plan has two year vesting for the tribe’s

nonelective contribution. In this case, an employee’s right to the nonelective contributions (and

the associated earnings) are subject to a substantial risk of forfeiture until the employee has

been employed by the tribe for three years.

The tribe’s nonelective contributions (and earnings thereon) are not wages for purposes of

the Social Security, Medicare and FUTA taxes until the employee has completed three years

of service. At that time, the aggregate amount of the tribe’s nonelective contributions, plus

earnings, is required to be taken into account as wages for purposes of the Social Security,

Medicare and FUTA tax. Once an individual has met the vesting requirements, future nonelective

contributions by the tribe are required to be taken into account as wages for these purposes

when the contribution is made.

The following are examples of how you would prepare a Form W-2 to reflect deferred

compensation depending on whether the plan is a qualified plan or a nonqualified plan.

Example - Qualified Plan: Sarah earned $30,000 during the year. She elected to contribute

10% ($3,000) to her employer’s qualified 401(k) plan. The employer also contributed 5%

($1,500) to the plan on Sarah’s behalf. Sarah had federal withholding of $3,000, Social Security

withholding of $1,860 and Medicare withholding of $435.

Sarah’s W-2 will reflect:

„ Box 1 - $27,000 ($30,000 gross wages less $3,000 elective deferral)

„ Box 3 - $30,000 – Although Sarah’s elective deferrals are not included in gross wages for federal

income tax purposes, they are includable wages for the Social Security tax

„ Box 5 - $30,000 – Sarah’s elective deferrals are includable wages for Medicare tax purposes

„ Box 12 - D $3,000 – Code D is the code for elective deferrals to a 401(k) plan (See W-2

instructions for other retirement plan codes)

„ Box 13 - Check the Retirement plan box

„ Box 14 - $1,500 – This is the nonelective employer contribution made for Sarah. This is not a

mandatory entry.

If your state has a state income tax, then box 16 on Form W-2 will normally be the same amount

as the amount shown in box 1 provided the employee was a resident of the state for the entire

year.

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Chapter 7: Pension Plans

Exhibit 7.1-Qualifed Plan

Form W-2

Example - Nonqualified Plan: Assume the same facts as above except the plan is a

nonqualified plan and there is no substantial risk of forfeiture of the deferred amount.

„ Box 1 - $27,000

„ Box 3 - $31,500 – Note: both Sarah’s contributions (elective deferrals) and the employer’s

contributions (nonelective deferrals) are includable wages for the Social Security tax

„ Box 5 - $31,500 – Same as above with regard to the Medicare tax

„ Box 12 - D $3,000

„ Box 13 - Check the Retirement plan box

„ Box 14 - $1,500 – Not mandatory

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Chapter 7: Pension Plans

Exhibit 7.2-Nonqualiifed Plan

Form W-2

Catch-Up Contributions

Participants age 50 and over may contribute additional elective deferral “catch-up

contributions” to 401(k), 403(b), SIMPLE IRA or SARSEP plans.

Catch-up contributions are combined with regular contributions for W-2 reporting.

Example: Jerry, age 52, earned $25,000 during the year. He contributed 10% ($2,500) of his

salary to his employer’s qualified 401(k) plan. In addition, Jerry contributed $500 in catch-up

contributions during the year. His employer contributed $1,250 to the plan for Jerry. Jerry had

federal withholding of $2,800, Social Security withholding of $1,550 and Medicare withholding of

$363.

Jerry’s W-2 will reflect:

„ Box 1 - $22,000 ($25,000 gross wages less $3,000 ($2,500 elective deferral plus $500 catch-up

contribution))

„ Box 3 - $25,000 – The elective deferral and catch-up contributions are includable wages subject

to Social Security tax

„ Box 5 - $25,000 – Same as above with regard to the Medicare tax

„ Box 12 - D $3,000 – Elective deferral and catch-up contributions are combined in this box using

the proper retirement code (see W-2 instructions)

„ Box 13 - Check the Retirement plan box

„ Box 14 - $1,250 – Not mandatory

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Chapter 7: Pension Plans

Exhibit 7.3-Catch-Up Contributions

Form W-2

Distributions

Reporting of distributions from these plans must be made on Form 1099-R, Distributions

From Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc.,

rather than Form W-2. For each year the employee receives a payment from the plan, the plan

administrator or annuity provider is required to issue the employee a Form 1099-R no later than

January 31 of the following year.

Loans to employees from a plan may be considered distributions and taxable.

Note: On occasion, the annuity provider may send withholding from distributions to the plan

sponsor or employer. In these cases, the plan sponsor must file Form 945, Annual Return of

Withheld Federal Income Tax, to report the withheld amounts.

Indian Tribes and 403(b) Plans

Indian tribes and wholly owned tribal entities (with the exception of tribally owned public schools

and qualified 501(c)(3) organizations) do not currently qualify to establish a 403(b) plan for their

employees. Contributions to a 403(b) plan are not allowable and are not excludable from gross

income by the employees.

Tribes that entered into a contract for a 403(b) plan prior to January 1, 1995, are allowed to

continue the plan and make current contributions for the employees who were participating

before January 1, 1995, as if they were a 501(c)(3) organization. Current employee contributions

are excludable from the employee’s gross income as authorized in IRC Section 403(b)(1).

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Chapter 7: Pension Plans

If the tribe entered into a contract for a 403(b) plan after December 31, 1994, the plan is not

qualified under the IRC and the tribe should refer to the IRS Voluntary Correction Program,

which explains acceptable methods to voluntarily correct the situation. If the tribe ceases

contributions, this program explains how the tribe may receive a letter giving them 403(b) status

for prior years. There is a fee to participate in the program.

Form 5500

Most retirement plans covered by ERISA are required to file a Form 5500, Annual Return/Report

of Employee Benefit Plan. An exception to this requirement is a “governmental plan.”

IRC Section 414(d) provides that a “governmental plan” includes a plan established and

maintained for its employees by the government of the United States, by the government of any

state or political subdivision thereof, or by any agency or instrumentality of any of the foregoing.

Certain plans of Indian tribal governments (ITG) are also governmental plans under 414(d).

Specifically, Section 906(a)(1) of the Pension Protection Act of 2006 (PPA) amended Section

414(d) to provide that the term ‘governmental plan’ includes a plan that is established and

maintained by an Indian tribal government (as defined in Section 7701(a)(40)), a subdivision

of an Indian tribal government (determined in accordance with Section 7871(d)), or an

agency or instrumentality of either, and all the participants of which are employees of the

entity substantially all of whose services as an employee are in the performance of essential

governmental functions but not in the performance of commercial activities (whether or not an

essential government function).

Notice 2006-89 provides that the IRS and Treasury anticipate issuing guidance on Section 414(d)

and that, until that guidance is issued, an ITG plan will be treated as satisfying the requirements

to be a governmental plan under Section 414(d) if it complies with those requirements based

on a reasonable and good faith interpretation of Section 906(a)(1) of PPA. Section III.B. of the

notice provides certain approaches that, if taken by September 30, 2007, permit separate plans

to be established for commercial ITG employees and for other ITG employees who perform

essential governmental functions (governmental ITG employees) under the reasonable and good

faith compliance standard. Section III.E. indicates that the relief provided in Section III applied

pending the issuance of further guidance relating to Section 414(d), including the amendment

made by PPA Section 906(a)(1).

Since the issuance of Notice 2006-89, the IRS and Treasury have continued to consult with

Indian tribal government representatives. Based on those consultations and the comments

received in response to Notice 2006-89, and until future guidance is issued, the transition relief

provided under Notice 2006-89 has been revised so that the date “September 30, 2007” in

Section III.B. of Notice 2006-89 was replaced with “the date that is six months after guidance

is issued under §414(d) of the Code, as amended by section 906 of the Pension Protection

Act of 2006, on the determination of whether a retirement plan maintained by an Indian tribal

government is a governmental plan with the meaning of §414 (d).”

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Chapter 7: Pension Plans

This extension is conditioned on the plans involved not being amended, for periods before the

extended date, to reduce benefits unless the reduction:

1) Does not vary based on whether the participant is a governmental Indian tribal government

employee or a commercial ITG employee, or

2) Is made to the plan for commercial ITG employees and is the minimum reduction necessary to

satisfy the requirements of the IRC.

If a reduction occurs that does not meet either of these conditions, the extension provided under

the notice ends on the date the reduction goes into effect.

References

„ Publication 15, (Circular E), Employer’s Tax Guide

„ Publication 15-A, Employer’s Supplemental Tax Guide

„ Publication 15-T, Federal Income Tax Withholding Methods

„ Publication 505, Tax Withholding and Estimated Tax

„ Publication 560, Retirement Plans for Small Business

„ Publication 571, Tax-Sheltered Annuity Plans (403(b) Plans)

„ Instructions for Forms W-2 and W-3

„ Announcement 2001-93, Reporting Elective Deferral Catch-up Contributions on the 2002

Form W-2

„ Form 5500, Annual Return/Report of Employee Benefit Plan

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Chapter 8

Cafeteria Plans

Section 125 of the Internal Revenue Code makes it possible for employers to offer their

employees a choice between cash and a variety of nontaxable benefits.

A cafeteria plan is a written benefit plan maintained by an employer for the benefit of its

employees. It provides participants an opportunity to receive certain benefits on a pre-tax basis.

The plan must allow employees to choose between two or more benefits consisting of cash (or a

taxable benefit which is treated as cash) and certain “qualified benefits.”

The written plan must include:

„ A specific description of each benefit available under the plan and the period of coverage

„ The rules governing which employees are eligible to participate in the plan

„ The procedures for making elections under the plan, including:

—` when elections may be made,

— the rules governing irrevocability of elections, and

— the periods for which elections are effective

„ The manner in which employer contributions may be made, such as by salary reduction

agreement between the employer and employee, by nonelective employer contributions or both

„ The maximum amount of employer contributions available to any participant

„ The plan year

Examples of qualified benefits of a cafeteria plan are:

„ Accident and health benefits (but not Archer medical savings accounts or long-term care

insurance)

„ Adoption assistance

„ Dependent care assistance

„ Group-term life insurance coverage

„ Health savings accounts, including distributions to pay long-term care services

Filing Requirements

Contributions to a cafeteria plan are usually made under salary reduction agreements between

the employer and the employee in which the employee agrees to contribute a portion of his or

her salary on a pre-tax basis to pay for the qualified benefits. Salary reduction contributions

are not actually or constructively received by the employee. Therefore, those contributions are

not considered wages for federal income tax purposes. In addition, those sums generally are

not subject to FICA and FUTA. Employers may report the employee’s nontaxable cafeteria plan

benefits on the Form W-2, in box 14.

If you maintain a cafeteria plan, you must report on Form 5500 information about the plan each

year by the last day of the 7th month after the plan year ends.

References

„ Publication 15, (Circular E), Employer’s Tax Guide

„ Publication 15-A, Employer’s Supplemental Tax Guide

„ Publication 15-B, Employer’s Tax Guide to Fringe Benefits

„ Publication 15-T, Federal Income Tax Withholding Methods

„ Form 5500, Annual Return/Report of Employee Benefit Plan

„ Publication 502, Medical and Dental Expenses

„ Publication 503, Child and Dependent Care Expenses

„ Form 8839, Qualified Adoption Expenses (attachment to Form 1040)

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Chapter 9

Scholarships & Educational Assistance

Educational Assistance Programs

IRC Section 127 addresses educational assistance programs and whether this assistance should

be included in income. An educational assistance program must be a written plan that benefits

employees. The plan may not discriminate in favor of highly compensated employees.

Gross income of an employee does not include amounts paid or expenses incurred by the

employer for educational assistance to the employee. The income exclusion from employee

gross income is limited to $5,250 per employee in educational assistance during a calendar year.

The excludable amount is not subject to income tax withholding or other employment taxes. The

education need not be job-related.

For purposes of IRC Section 127, the term “educational assistance” means:

„ The payment, by an employer, of expenses incurred by or for an employee for the employee’s

education (including, but not limited to tuition, fees and similar payments, books, supplies and

equipment); and

„ The provision, by an employer, of courses of instruction for an employee (including books,

supplies and equipment), but does not include payment for or the provision of tools or supplies

which may be retained by the employee after completion of a course of instruction, or meals,

lodging or transportation. The term “educational assistance” also does not include any payment

for, or the provision of, any benefits for any course or other education involving sports, games or

hobbies.

If you don’t have an educational assistance plan or you provide more than $5,250 to an

employee in annual education assistance, the payment is taxable unless it qualifies as a

“working condition” fringe benefit. See chapter 2, Publication 15-B, Employer’s Tax Guide to

Fringe Benefits, for more information.

Scholarships

A scholarship or fellowship grant is any amount paid or allowed to, or for the benefit of, an

individual to aid the individual in the pursuit of study or research. A scholarship may, for

example, be in the form of a reduction owed by the recipient to an educational organization for

tuition, room and board, or any other fee.

IRC Section 117 provides an exclusion from income for certain scholarships made to an

individual who is candidate for a degree. IRC Section 170 defines an educational institution as

an educational organization, which maintains a regular faculty, a curriculum and has a regularly

enrolled body of students on site.

Nontaxable Benefits

Only “qualified scholarships” may be excluded from income. Where participants are degree

candidates, these payments will ordinarily be excludable from the recipient’s gross income

to the extent of their qualified tuition and related expenses. The student may be either an

undergraduate or graduate.

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Chapter 9: Scholarships & Educational Assistance

A qualified scholarship is defined as any amount expended for “qualified tuition and related

expenses,” which includes:

„ Tuition and fees required for the enrollment or attendance of a student at an eligible educational

institution.

„ Course-related expenses, such as fees, books, supplies and equipment that are required for the

courses at the eligible educational institution. These items must be required of all students in the

course of instruction.

Qualified education expenses do not include the cost of:

„ Room and board

„ Incidental living expenses

„ Travel

„ Research

„ Clerical help

„ Equipment and other expenses that are not required for enrollment in or attendance at an eligible

educational institution

This is true even if the fee must be paid to the institution as a condition of enrollment or

attendance. Thus, scholarship receipts that exceed expenses for “qualified tuition and

expenses” are not excludable from a recipient’s gross income (scholarship amounts used to pay

these costs are taxable).

The scholarship may be tax free only if the student is a candidate for a degree at an educational

institution. Thus, in the case of non-degree candidates, the entire amount of the scholarship is

includable in gross income of the recipient regardless of its use.

Reporting Taxable Scholarship Benefits

Do not issue Form 1099-MISC to report scholarship or fellowship grants. A scholarship or

fellowship grant represents payment for services when the grantor requires the recipient to

perform services in return for granting of the scholarship or fellowship. A requirement that the

recipient pursue studies, research or other activities primarily for the benefit of the grantor is

treated as a requirement to perform services.

A scholarship or fellowship grant conditioned on either past, present or future services by the

recipient, or on services that are subject to the direction or supervision of the grantor represents

payment for services and is considered wages.

The grantor of this amount is subject to certain withholding and reporting requirements on

wages, including withholding for income taxes and filing of Forms W-2. The application of Social

Security and Medicare taxes depends on the nature of the employment and the status of the

grantor.

Exceptions

You do not have to include in income the part of any scholarship or fellowship that represents

payment for teaching, research or other services if you receive the amount under the:

„ National Health Service Corps Scholarship Program, or

„ Armed Forces Health Professions Scholarship Financial Assistance Program.

You must also be a candidate for degree at an eligible educational institution, and use part of

the scholarship or fellowship to pay qualified education expenses.

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Chapter 9: Scholarships & Educational Assistance

You are not required to report other taxable scholarship or fellowship payments (to a degree or

non-degree candidate) to the IRS on any form.

The recipient of these payments is responsible for determining whether the payment is, in whole

or in part, includable in gross income for federal income tax purposes.

You may wish to advise scholarship recipients that the amount of their scholarship or fellowship

stipends that exceeds their qualified tuition and related expenses, if any, is generally includible in

gross income for federal income tax purposes.

References:

„ Publication 15, (Circular E), Employer’s Tax Guide (Section 15, Special Rules for Various Types of

Services and Payments, for students)

„ Publication 15-A, Employer’s Supplemental Tax Guide (Section 5, Wages and Other

Compensation, Scholarship and Fellowship Payments)

„ Publication 15-B, Employer’s Tax Guide to Fringe Benefits, (Section 2, Fringe Benefit Exclusion

Rules, Working Condition Benefits)

„ Publication 970, Tax Benefits for Education

„ Instructions for Forms W-2 and W-3

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Chapter 10

Earned Income Tax Credit

The Earned Income Tax Credit (EITC) is a refundable tax credit for certain workers whose

earned income is below a certain level. Because it is a “credit,” the EITC is subtracted from the

amount of tax owed, if any, on the worker’s individual income tax return. As a refundable credit,

any excess over the total tax is refunded to the individual. Even workers who have not filed

a tax return in the previous year because their wages were below the minimum income level

requirements to file may be able to get the credit – but only if they file a tax return. Therefore,

you must notify each employee who worked for you at any time during the year, and from whom

you did not withhold any income tax about EITC.

You will meet the notification requirements by giving the employee either Notice 797, Possible

Federal Tax Refund Due to the Earned Income Credit (EIC), your own written statement as long

as it has the exact wording of Notice 797 or the official IRS Form W-2, Wage and Tax Statement,

which contains a statement on the back of Copy B. You do not need to notify employees

who claimed exemption from withholding on Form W-4, Employee’s Withholding Allowance

Certificate.

The amount of the credit depends on a worker’s wages and family size.

To claim the EITC, a worker must file a tax return. But many of the workers who are eligible for

the EITC do not ordinarily file tax returns because their incomes are too low to trigger any federal

tax liability. These workers may have had little or no exposure to the federal tax forms that

explain what the EITC is and how to claim it.

The IRS website provides extensive resources on the EITC for individuals, employers and tax

professionals.

References

„ Publication 15, (Circular E), Employer’s Tax Guide

„ Publication 15-A, Employer’s Supplemental Tax Guide

„ Notice 797, Possible Federal Tax Refund Due to the Earned Income Credit (EIC)

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Chapter 11

Employment Taxes

Employers must deposit and report employment taxes with the Internal Revenue Service.

Employment taxes are:

„ Amounts you should generally withhold from your employees’ wages for income, Social Security

and Medicare taxes, and

„ Matching amounts of Social Security and Medicare tax you pay on behalf of your employees.

Employer Identification Number

An employer identification number (EIN) is a nine-digit number that IRS assigns in the format

XX-XXXXXXX. It is used to identify the tax accounts of employers and certain other entities

that have no employees. The IRS uses the number to identify taxpayers that are required to file

various tax returns. EINs are used by employers, sole proprietors, corporations, partnerships,

nonprofit associations, trusts, estates of decedents, government agencies, certain individuals

and other business entities. Use your EIN on all the items that you send to the IRS and the

Social Security Administration (SSA).

If the employer does not already have an EIN, it will need to get one if the employer:

„ Pays wages to employees;

„ Is required to withhold taxes for non-wage payments;

„ Operates as a corporation, partnership; or

„ Files any of these tax returns:

— employment;

— excise;

— fiduciary; or

— alcohol, tobacco and firearms.

You can get an EIN by applying:

„ Online,

„ By fax, or

„ By mail.

Apply Online

The online EIN application is the preferred method for taxpayers to apply for and obtain an EIN.

Once the application is completed, the information is validated during the online session and

an EIN is issued immediately. The online application process is available for all entities whose

principal business, office or agency, or legal residence (in the case of an individual), is located in

the United States or U.S. Territories. The principal officer, general partner, grantor, owner, trustor,

must have a valid taxpayer identification number (Social Security number, EIN, or individual

taxpayer identification number) to use the online application.

Note: Taxpayers who apply for an EIN online have the option to view, print and save their EIN

assignment notice at the end of the session.

Apply by Fax

Taxpayers can fax the completed Form SS-4, Application for Employer Identification Number, to

the appropriate fax number (see Instructions for Form SS-4, Where to File or Fax) after ensuring

that the Form SS-4 contains all the required information. If it is determined that the entity needs

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Chapter 12: Preparation of Payroll Checks

a new EIN, one will be assigned using the procedures for the entity type. If the taxpayer’s fax

number is provided, a fax will be sent back with the EIN within four business days.

Apply by Mail

The processing time frame for an EIN application received by mail is four weeks. Ensure that the

Form SS-4 contains all the required information. If it is determined that the entity needs a new

EIN, one will be assigned using the procedures for the entity type and mailed to the taxpayer.

Find where to mail Form SS-4 in the Instructions for Form SS-4.

Other Important Information

Daily Limitation of an EIN

To ensure fair treatment for all taxpayers, the IRS limits EIN issuance to one per responsible

party per day. This limitation applies to all requests for EINs whether online or by fax or mail.

Form SS-4

When completing Form SS-4 Indian tribal governments should select the “Indian tribal

governments/enterprises” box on Line 9a, Type of entity. Designating this box will let IRS know

the entity’s status as a federally recognized Indian tribal government. This will reduce errors and

facilitate processing of tax returns by routing them to specially trained employees. It allows IRS

to code the returns so any questions will be directed to the IRS Indian Tribal Governments office.

Because it takes several weeks to receive an EIN after the Form SS-4 has been filed, apply for

the EIN well before tax returns are due. An EIN may be obtained sooner by using the online EIN

application process or by fax.

Federal Employment Taxes

Employment taxes represent the income, Social Security and Medicare (FICA) taxes withheld

from the wages of an employee plus the employer’s share of Social Security taxes and federal

unemployment (FUTA) taxes. The withheld (employee’s) portion of employment taxes is referred

to as “trust fund” taxes. FUTA is addressed later in this publication.

If the tribe is required to withhold income or Social Security and Medicare taxes, Form 941,

Employer’s Quarterly Federal Tax Return, reporting the amounts withheld must be filed. However,

other forms are used under certain circumstances.

„ Form 943, Employer’s Annual Federal Tax Return for Agricultural Employees, is used for to report

income tax withheld and Social Security and Medicare taxes on wages paid to farmworkers,

including household employees working in a private home on a for-profit farm.

„ Form 944, Employer’s Annual Federal Tax Return, is used for employers whose liability for Social

Security, Medicare and withheld federal income taxes for the calendar year is $1,000 or less.

„ Form 945, Annual Return of Withheld Federal Income Tax, is used to report income tax withheld

from non-payroll payments, such as pensions, IRAs, gambling winnings, Indian gaming profits

and backup withholdings.

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Chapter 11: Employment Taxes

Alternative Signature Method (Revenue Procedure 2005-39).

Effective with returns filed after June 2005, corporate officers or duly authorized agents may

sign any of the following forms by facsimile (such as, by rubber stamp, mechanical device or

computer software program):

1) The Form 94X series,

2) Form 1042,

3) Form 8027,

4) Form CT-1, or

5) Any variant of the designated form (for example, Form 941-X).

Officers or agents using a facsimile means of signature are personally responsible for ensuring

that their facsimile signature is affixed to returns. The person filing the form must retain a letter,

signed by the officer or agent authorized to sign the return, declaring under penalties of perjury

that the facsimile signature appearing on the form is the signature adopted by the officer or

agent and that the facsimile signature was affixed to the form by the officer or agent or at the

officer’s or agent’s direction. The letter must list each return by name and identifying number.

The letter should not be sent to the IRS unless specifically requested. The letter must be

maintained for at least four years after the later of the due date of the tax as the return relates, or

the date the tax is paid.

For additional information, see:

„ Revenue Procedure 2005-39

„ Publication 15 (Circular E), Employer’s Tax Guide, explains the rules and methods of withholding,

paying, depositing and reporting federal income tax, Social Security and Medicare taxes and

federal unemployment (FUTA) tax on wages, tips and fringe benefits. It also explains who is an

employee, what are taxable wages and what are taxable tips.

„ Publication 15-B, Employer’s Tax Guide to Fringe Benefits, provides a more detailed discussion

of fringe benefits and information on how to report third-party sick pay.

„ Publication 15-T, Federal Income Tax Withholding Methods, is a supplement to Pub 15 and Pub

51. It describes various methods of figuring withholding and provides the Tables for Withholding

on distribution of Indian Gaming Profits to Tribal Members.

Form I-9, Employment Eligibility Verification

Form I-9, Employment Eligibility Verification, is used for verifying the identity and employment

authorization of individuals hired for employment in the United States. All U.S. employers must

ensure proper completion of Form I-9 for each individual they hire for employment in the United

States. This includes citizens and noncitizens. Both employees and employers (or authorized

representatives of the employer) must complete the form. On the form, an employee must attest

to his or her employment authorization. The employee must also present the employer with

acceptable documents evidencing identity and employment authorization. The employer must

examine the employment eligibility and identity documents an employee presents to determine

whether the documents reasonably appear to be genuine and relate to the employee and record

the document information on the Form I-9. The list of acceptable documents is on the last page

of the form. Employers must retain Form I-9 for a designated period and make it available for

inspection by authorized government officers.

Do not file Form I-9 with the U.S. Citizenship and Immigration Services (USCIS) or U.S.

Immigrations and Customs Enforcement (ICE). Employers must have a completed Form I-9 on

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Chapter 11: Employment Taxes

file for each person on their payroll who is required to complete the form. Form I-9 must be

retained and stored by the employer either for three years after the date of hire or for one year

after employment is terminated, whichever is later. The form must be available for inspection by

authorized U.S. government officials from the Department of Homeland Security, Department of

Labor or Department of Justice.

For questions or more information on employer responsibilities, contact USCIS at 800-375-5283

or visit the Department of Homeland Security website (you may also download the Form I-9

from this link).

Form W-4, Employee’s Withholding Allowance Certificate

When employees are hired, the employer must have the employee complete a Form W-4,

Employee’s Withholding Allowance Certificate; the employer must have a Form W-4 on file for

each employee. The federal income taxes to be withheld is determined by the employee’s gross

wages and the information submitted by the employee on Form W-4.

This information includes:

„ Step 1, personal information and employee’s marital status,

„ Step 2, if applicable, to include a spouses job and/or employee’s multiple jobs

„ Step 3, claim dependents, if applicable,

„ Step 4, has options for reporting other income, deductions, and employee’s request to have

additional tax withheld, or claiming exemption from withholding by writing “Exempt” in the

space below 4c.

Ask each new employee to submit a signed Form W-4 by his or her first day of work. This Form

W-4 is effective with the first wage payment and lasts until the employee files a new W-4.

If an employee fails to provide a properly completed Form W-4, you must withhold federal

income taxes from the employee’s wages as if the employee were single and claiming no

dependents. If not enough tax is withheld and the employee has not provided a valid Form W-4

or has claimed an exemption from withholding, the employee may be subject to penalties.

An employee may want to change the number of dependents claimed or withholding rate (marital

status) on Form W-4 due to a marriage, a change in the number of dependents or a change in

the amount of itemized deductions or tax credits anticipated for the tax year. If you receive a

revised Form W-4 from an employee, you must put it into effect no later than the start of the first

payroll period ending on or after the 30th day from the date you received the revised Form W-4.

You must honor the request unless the situations described in the sections “Invalid Form W-4”

and “Lock-in Letters” below apply.

Exemption from Withholding

If an employee qualifies, Form W-4 is also used by the employee to tell you not to deduct any

federal income tax from the employee’s wages. To qualify for this exempt status, the employee

must have had no tax liability for the previous year and must expect to have no tax liability for

the current year. However, if the employee can be claimed as a dependent on a parent’s or

another person’s tax return, additional limitations may apply (see the instructions for Form W-4).

A Form W-4 claiming exemption from withholding is valid for only the calendar year in which it is

filed with the employer. To continue to be exempt from withholding in the next year, an employee

must give you a new Form W-4 claiming exempt status by February 15 of that year. If the

employee does not give you a new Form W-4, withhold tax as if the employee is single, with no

withholding allowances. However, if you have an earlier Form W-4 (not claiming exempt status)

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for this employee that is valid, then withhold with the information provided on this valid Form

W-4 until you receive a new one. The employee claims exempt status by writing “Exempt” in the

area beneath box 4c.

Note: Student status does not automatically exempt the employee from income tax withholding.

Invalid Form W-4

Any unauthorized change or addition to Form W-4 makes it invalid. This includes taking out

any language by which the employee certifies that the form is correct, material defacing of the

form or any writing on the form other than the entries requested. A Form W-4 is also invalid

if, by the date an employee gives it to the employer, the employee indicates in any way that it

is false. When you receive an invalid Form W-4, do not use it to determine federal income tax

withholding. Tell the employee that it is invalid and ask for another one. If the employee does

not provide a valid Form W-4, withhold taxes as if the employee is single and claiming no

withholding allowances. However, if you have an earlier Form W-4 for this employee that is valid,

then withhold with the information provided on the valid Form W-4 until you receive a new one.

Lock-in Letters

The IRS uses information reported on Forms W-2 to identify employees with withholding

compliance problems. In some cases, where a serious under-withholding problem is found to

exist for a particular employee, the IRS may issue a notice (commonly referred to as a “lockin-letter”) to the employer specifying the withholding rate and maximum number of withholding

allowances permitted for a specific employee for purposes of calculating the required

withholding. The IRS will provide the employee with an opportunity to dispute the determination

before the employer will adjust the withholding based on the lock-in letter.

The IRS will send a letter to the employee explaining that the IRS will require you to start

withholding additional income tax unless the employee contacts the IRS to explain why the

employee should not have withholding increased. A toll-free number and address for the unit

handling this program will be provided in the letter. As an additional safeguard, you will also

receive a notice to provide to the employee.

After the lock-in letter takes effect, you must disregard any Form W-4 that results in less tax

withheld, until the IRS notifies you otherwise. However, you must honor any Form W-4 that

results in more income tax withheld than at the withholding rate and withholding allowances

specified in the lock-in letter. Employers who use electronic Form W-4 systems must make sure

the employee cannot override the lock-in letter to decrease withholding via an electronic Form

W-4 system. Lock-in letter provisions also apply to employees rehired within 12 months from the

date of the notice.

After the lock-in letter takes effect, if the employee wants to claim complete exemption from

withholding or claim a withholding rate, withholding allowances or an additional amount that

results in less income tax withheld than the lock-in letter, the employee must contact the IRS. A

toll-free number and address for the unit handling this program is provided in the lock-in letter.

Recordkeeping Requirements

After the employee completes and signs the Form W-4, you must keep it in your records for

at least 4 years (See Publication 15). This form serves as verification that you are withholding

federal income tax according to the employee’s instructions and needs to be available for

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inspection should the IRS request it. Form W-4 is still subject to review. You may be directed

(in a written notice or in future published guidance) to send certain Forms W-4 to the IRS. You

must be able to supply a hardcopy of an electronic Form W-4. Generally, Forms W-4 are for your

records. They need not be sent to IRS. For more information on withholding, see Publication

505, Tax Withholding and Estimated Tax.

Federal Income Tax

The wages paid to employees generally are subject to income tax withholding if their wages

for any payroll period are more than the dollar amount of their withholding allowances for that

period. The amount to be included is figured separately for each payroll period. Wages include

all pay the employer gives an employee for services performed. The pay may be in cash or in

other forms. It includes salaries, vacation allowances, bonuses, commissions and fringe benefits

not excluded by law. It does not matter how payments are measured or paid. Wages paid in

any form other than money (such as goods, lodging and meals) are measured by the fair market

value. See Publication 15-T for more information about income tax withholding.

The income tax to be withheld is figured on gross wages before any deductions are made

for Social Security and Medicare taxes. You may figure the withholding by different methods,

the most common of which are the percentage method and the wage bracket tables method.

Publication 15-T contains the income tax withholding tables and instructions for using both

of these withholding methods, and it gives more information on reporting and withholding

requirements on wages and tip income.

Social Security and Medicare Taxes

Under the Federal Insurance Contributions Act (FICA), employers must withhold Social Security

and Medicare taxes from wages that employees receive each payroll period.

Generally, meals, lodging, clothing, services and other payments in-kind are subject to Social

Security and Medicare taxes, as are wages paid in cash. However, meals are not taxable

wages if furnished for the employer’s convenience and on the employer’s premises. Lodging is

not taxable if furnished for the employer’s convenience, on the employer’s premises and as a

condition of employment.

The employer must withhold and deposit the employee’s part of the taxes and pay a matching

amount. The Social Security tax is withheld from the employee’s gross wages until the

employee’s cumulative wages for the year reach the wage base limit. Any wages above the wage

base limit are not subject to Social Security withholding. However, there is no wage base limit for

Medicare tax; all covered wages are subject to Medicare tax.

The United States has Social Security agreements with many countries that eliminate dual

taxation and coverage. Compensation subject to Social Security and Medicare taxes may be

exempt under one of these agreements. More information and a list of agreement countries can

be obtained from the Social Security Administration website.

Social Security and Medicare Tax for 2022

The current employee tax rate for Social Security is 6.2%. The employer tax rate for Social

Security is also 6.2%. The 2022 Social Security wage base limit is $147,000. The current

Medicare tax rate is 1.45% each for employers and employees. There is no wage base limit for

Medicare tax.

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Additional Medicare Tax

In addition to withholding Medicare tax at 1.45%, you must withhold a 0.9% Additional Medicare

Tax from wages paid to an employee in excess of $200,000 in a calendar year. You are required

to begin withholding the Additional Medicare Tax in the pay period in which you paid wages in

excess of $200,000 to an employee and continue to withhold it each pay period until the end

of the calendar year. Additional Medicare Tax is only imposed on the employee. There is no

employer share of Additional Medicare Tax. All wages subject to Medicare tax are subject to

Additional Medicare Tax withholding if paid in excess of the $200,000 withholding threshold.

For the most current information on the Social Security, Medicare and Additional Medicare Tax

rates, see Publication 15, “What’s New” section.

How and When to Deposit Taxes

In general, you must deposit income tax withheld and both the employer and employee Social

Security and Medicare taxes. First, you must determine which deposit schedule to use. There

are two deposit schedules – monthly or semiweekly – for determining when you deposit Social

Security, Medicare and withheld income taxes. These schedules tell you when a deposit is due

after a tax liability arises (for example, when you have a payday).

Important Note:

Remember that Form 941 is a quarterly return, but deposits may be required on a monthly

or semiweekly schedule. Publication 509, Tax Calendars, assists employers in monitoring

due dates of deposits. Publication 509 has deposit due date schedules for both monthly and

semiweekly depositors. The calendars in this publication also include due dates for filing returns,

providing information returns to employees, and other important dates you need to know.

Lookback Period

The deposit schedule for a calendar year is determined from the total taxes reported on your

Form 941 (line 11) in a four-quarter lookback period. The lookback period for Form 941 filers

begins July 1 and ends June 30. See Publication 15, “Depositing Taxes” section for the table

that explains the lookback period for the current calendar year. If you reported $50,000 or less in

taxes for the lookback period, then you are a monthly schedule depositor; if you reported more

than $50,000, then you are a semiweekly schedule depositor.

Monthly Deposit Schedule

Under the monthly deposit schedule, deposit Form 941 taxes on payments made during a month

by the 15th day of the following month.

Note: If this is a new tribal entity, during the first calendar year the tax liability for each quarter

in the lookback period is considered to be zero. Therefore, this entity is considered a monthly

schedule depositor for the first calendar year of the business unless the $100,000 Next-Day

Deposit rule (discussed later) applies.

Semiweekly Deposit Schedule

The employer is a semiweekly schedule depositor for a calendar year if the total taxes on Form

941 during the lookback period was more than $50,000. If the payday falls on Wednesday,

Thursday or Friday, you must deposit the Form 941 taxes no later than the following Wednesday.

If the payday falls on Saturday, Sunday, Monday or Tuesday, deposit by Friday.

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Exhibit 11.1

Semiweekly Deposit Schedule

If the payday falls on a…

Then deposit taxes by the following…

Wednesday, Thursday or Friday

Wednesday

Saturday, Sunday, Monday or Tuesday

Friday

Note: Semiweekly schedule depositors must complete Schedule B (Form 941), Report of Tax

Liability for Semiweekly Schedule Depositors, and submit it with Form 941.

$100,000 Next-Day Deposit Rule

If you accumulate $100,000 or more in taxes on any day during a monthly or semiweekly deposit

period, you must deposit the tax to be received by the IRS by the next business day, whether

you’re a monthly or semiweekly schedule depositor. This may mean that the deposit must be

made on the same day the liability is incurred. If this occurs before the end of the deposit period,

you must make the deposit of all liabilities up to that day and then start from zero the next day

and track for the rest of the deposit period.

If you are a monthly schedule depositor and accumulate a $100,000 tax liability on any day, you

become a semiweekly schedule depositor on the next day and remain so for of the remainder of

the calendar year and for the following calendar year.

Example of Next Day Deposit Rule

Elm, Inc., paid wages and accumulated a tax liability of $40,000 on Wednesday May 4. On

Friday, May 6, Elm, Inc., paid wages and accumulated a liability of $60,000. Up to this point,

Elm, Inc., has been a monthly scheduled depositor. Since Elm, Inc., has accumulated a $100,000

liability on May 6, it became a semi-weekly schedule depositor on May 7. Elm, Inc., will be a

semi-weekly schedule depositor for the remainder of the year and for the following year. Elm,

Inc., is required to deposit the $100,000 so IRS receives it by Monday, May 9, the next business

day. (See Depositing on Time below)

TIP: The $100,000 tax liability threshold requiring a next-day deposit is determined before you

consider any reduction of your liability for nonrefundable credits.

How to Deposit

You are required to deposit employment taxes by electronic funds transfer (EFT). Generally, an

EFT is made using the Electronic Federal Tax Payment System (EFTPS). If you do not want to

use EFTPS, then you can arrange for a tax professional, financial institution, payroll service or

other trusted third party to make electronic deposits for you. EFTPS is a free service provided

by the Department of Treasury. To get more information about EFTPS or to enroll in EFTPS, visit

www.eftps.gov, or call 800-555-4477. Additional information about EFTPS is also available in

Publication 966, Electronic Federal Tax Payment System – A Guide to Getting Started, and in

Publication 15, Chapter 11, “Depositing Taxes.”

For deposits made by EFTPS to be on time, you must submit the deposit by 8 p.m. Eastern time

the day before the date the deposit is due. If you use a third party to make a deposit for you, the

third party may have different cutoff times.

If you fail to submit a deposit transaction on EFTPS by 8 p.m. Eastern time the day before

the date a deposit is due, you can still make your deposit on time by using the Federal Tax

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Chapter 11: Employment Taxes

Collection Service (FTCS). To use the same-day wire payment method, you will need to make

arrangements with your financial institution ahead of time. Please check with the financial

institution regarding availability, deadlines and costs. The financial institution may charge a fee

for payments made this way. To learn more about the information needed to be provided to the

financial institution to make a same-day wire payment, visit www.irs.gov/e-pay and click on

“Same-day wire.”

Depositing on Time

For deposits made by EFTPS to be on time, you must submit the deposit by 8 p.m. Eastern time

the day before the date the deposit is due. If you use a third party to make a deposit on your

behalf, they may have different cutoff times. Regarding the Example of Next Day Deposit Rule

above, the deposit made by EFTPS must be submitted by 8 pm Eastern time on Friday, May 6 to

be meet the due date of Monday May 9.

Deposit Penalties

Penalties may apply if you do not make required deposits on time, if deposits are for less than

the required amount or if you do not make your deposits via EFT. The penalties do not apply

if any failure to make a proper and timely deposit was due to reasonable cause and not to

willful neglect. The IRS may also waive penalties if you inadvertently fail to deposit in the first

quarter you are required to deposit any employment tax, or in the first quarter during which the

frequency of deposits changed, if the employment tax return was timely filed. Always ensure that

tax deposits are timely. For amounts not properly or timely deposited, the penalty rates are:

„ 2% - Deposits made 1 to 5 days late.

„ 5% - Deposits made 6 to 15 days late.

„ 10% - Deposits made 16 or more days late. Also applies to amounts paid within 10 days of the

date of the first notice the IRS sent asking for the tax due.

„ 10% - Amounts (that should have been deposited) paid directly to the IRS or paid with your tax

return. See Publication 15 for more exceptions.

„ 15% - Amounts still unpaid more than 10 days after the date of the first notice the IRS sent

asking for the tax due or the day on which you received notice and demand for immediate

payment, whichever is earlier.

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Chapter 11: Employment Taxes

The following example illustrates how a monthly tax depositor would figure their deposit

requirements and due dates:

Period Ending

1/31

Gross Wages

*FICA

Withheld

*Employer’s

FICA

Income Tax

Withheld

Total Taxes

$4,800.00

$367.20

$367.20

$400.00

$1,134.40

2/28

$4,750.00

$363.38

$363.38

$406.00

$1,132.76

3/31

$4,200.00

$321.30

$321.30

$340.00

$982.60

Quarterly Totals

$13,750.00

$1,051.88

$1,051.88

$1,146.00

$3,249.76

*Social Security and Medicare taxes are referred to as FICA

The monthly depositor must deposit each month’s taxes by the 15th of the following month

($1,134.40 by February 15; $1,132.76 by March 15 and $982.60 by April 15). If the total taxes

for all three months of the quarter had been less than $2,500, then the taxes could have been

deposited or paid with the Form 941 to be filed by April 30.

If you do not pay the withheld employment taxes (trust fund taxes), the IRS may take additional

collection action and may require you to:

„ File and pay employment taxes monthly rather than quarterly

„ Open a special bank account for depositing the withheld employment tax amounts, under

penalty of prosecution

See Publication 15 for more information.

Basic Federal Employment Tax Responsibilities

The following provides a brief summary of basic federal employment tax responsibilities.

Because the individual circumstances for each tribe can vary greatly, its responsibilities for

withholding, depositing and reporting employment taxes can differ.

New Employees:

„ Verify work eligibility of employees via Form I-9, Employment Eligibility Verification, (available for

download from U.S. Citizenship and Immigration Services or by calling 800-870-3676)

„ Record employee’s name and SSN from Social Security card

„ Ask employees for Form W-4, Employee’s Withholding Allowance Certificate

Each Payday:

„ Withhold federal income tax based on each employee’s Form W-4

„ Withhold employee’s share of Social Security and Medicare taxes

Deposit Requirements:

„ You may pay the income, Social Security and Medicare taxes with Form 941 if the total tax

liability for the quarter is less than $2,500 and the taxes are paid in full with a timely filed return

„ If the total tax liability for the quarter is $2,500 or more deposits are required. See Publication 15,

for deposit requirements

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Chapter 11: Employment Taxes

Quarterly (by April 30, July 31, October 31 and January 31):

„ File Form 941, Employer’s Quarterly Federal Tax Return

Annually:

For Employees:

„ Before December 1 - remind employees to submit a new Form W-4 if they need to change their

withholding

„ Reconcile amounts on Forms 941 with Forms W-2 and W-3

„ By January 31 - furnish each employee copies B, C and 2 of Form W-2

„ By January 31 - file Copy A of Forms W-2 via Form W-3 with the SSA if filing paper forms or filing

electronically

„ By February 15 - ask for a new Form W-4 from employees claiming exemption from income tax

withholding

For Independent Contractors:

„ By January 31 - furnish each recipient a Form 1099 (such as Form 1099-NEC). Form W-9 may be

used to secure the vendor’s taxpayer identification number (SSN or EIN).

„ By January 31 - file Form 945 for any nonpayroll income tax withholding, such as backup

withholding. See the Instructions for Form 945 for details on depositing nonpayroll income tax

withholding.

„ By January 31 - file Copy A of Forms 1099-NEC reporting nonemployee compensation in box 1

via transmittal Form 1096 with the IRS using either paper forms or filing electronically.

References:

„ IRS Tax Calendar for Businesses and Self-Employed

„ Publication 15, (Circular E), Employer’s Tax Guide

„ Publication 15-A, Employer’s Supplemental Tax Guide

„ Publication 15-T, Federal Income Tax Withholding Methods

„ Publication 505, Tax Withholding and Estimated Tax

„ Publication 509, Tax Calendars

„ Publication 515, Withholding of Tax on Nonresident Aliens and Foreign Entities

„ Publication 519, U.S. Tax Guide for Aliens

„ Form W-4, Employee’s Withholding Allowance Certificate, Instructions

„ Publication 966, Electronic Federal Tax Payment System

„ Form I-9, Employment Eligibility Verification

„ Publication 1635, Understanding Your Employer Identification Number

„ Form SS-4, Application for Employer Identification Number

„ EIN Applications for Indian Tribal Governments and Their Entities: Video

„ Form, 1099-NEC, Nonemployee Compensation

„ Instructions Forms 1099-MISC and 1099-NEC

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Chapter 12

Preparation of Payroll Checks

Payroll Files

In Chapter 11, Form W-4, Employee’s Withholding Allowance Certificate, and Form I-9,

Employment Eligibility Verification, are discussed. These are forms that employees may have

on file with your payroll department. It is important to maintain separate files for each employee

with the employee’s completed and signed payroll forms.

Payroll Records

Other employment tax records maintained in your payroll records are discussed in Publication

15. Payroll records should be retained for a minimum of four years. Those records include:

„ Notification of assignment of employer identification number (EIN) or other record of your EIN

„ Amounts and dates of all wage, annuity and pension payments

„ Amounts of tips reported

„ Records of allocated tips

„ Fair market value of in-kind wages paid

„ Names, addresses, Social Security numbers and occupations of employees and recipients

„ Any employee copies of Form W-2 that were returned to you as undeliverable

„ Dates of employment for each employee

„ Periods for which employees and recipients were paid while absent due to sickness or injury and

the amount and weekly rate of payments you or third-party payers made to them

„ Copies of employees’ and recipients’ income tax withholding allowance certificates (Forms W-4)

„ Dates and amounts of tax deposits made and acknowledgment numbers for deposits made

using the Electronic Federal Tax Payment System (EFTPS)

„ Copies of returns filed and confirmation numbers

„ Records of fringe benefits provided, including substantiation

„ Notice 797, Possible Federal Refund Due to Earned Income Tax Credit, or other proof of

notification of Earned Income Tax Credit (EITC) eligibility

„ Form I-9, Employment Eligibility Verification

„ Travel reimbursement plan for nonaccountable plans

Payroll Period

The payroll period is a span of time for which wages are paid. When you have a regular payroll

period, withhold income tax for that time period even if your employee does not work the full

period.

Each tribe or entity determines the dates on which it will pay its employees. Some entities have

weekly paydays, some on the first and fifteenth of the month (semimonthly), some pay every

other week (biweekly), some on a monthly basis and some at irregular intervals. Some entities

have different classes of workers (for instance, factory and office) who are paid at different

times. It is important to know the payroll period covered for each individual for each paycheck

that will be issued. Knowing the proper payroll period is one element to ensure that Social

Security, Medicare and federal income tax is withheld in the proper amounts from employee’s

wages. Publication 15 has a detailed discussion of this topic.

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Chapter 12: Preparation of Payroll Checks

Wages

Wages subject to federal employment taxes include all pay remitted to an employee for services

performed. The pay may be in cash or in other forms. It includes salaries, vacation allowances,

bonuses, commissions and fringe benefits. It doesn’t matter how the employer determines

or make the payments. Publication 15-A provides additional information on wages and other

compensation, including:

„ Adoption assistance

„ Awards

„ Back pay

„ Below-market loans

„ Cafeteria plans

„ Deferred compensation

„ Educational assistance

„ Group-term life insurance

„ Outplacement services

„ Retirement plans

„ Supplemental unemployment benefits

A common item that must be included as wages is employee business expense reimbursement

that is under a nonaccountable plan. Accountable and nonaccountable plans are discussed in

Publication 463, Travel, Gift, and Car Expenses, and in Chapter 5 of this publication.

Unusual situations may be encountered in determining gross wages paid to an employee.

The general rule is all payments in cash, cash equivalents, goods and services are wages for

purposes of withholding. Publication 15-A is a good reference for determining what constitutes

wages.

Timekeeping

A manual or computerized timekeeping system is generally used to record the hours employees

worked during any given pay period. Some type of record will be given to the payroll department

as a voucher from which a paycheck will be generated. The timesheet or other voucher should

be signed by the appropriate party, or parties, and retained for recordkeeping purposes.

Once the payroll department is assured of proper reporting of time, it should be determined

if any miscellaneous items (as discussed above) should be included in the gross wage

computation. Gross wages are the dollar value of the total wages for the pay period. Gross

wages are the starting point for computing withholdings and net payroll.

Part-Time Workers

For income tax withholding and Social Security, Medicare and federal unemployment tax

(FUTA) purposes, there are no differences between full-time employees, part-time employees

and employees hired for short periods. It doesn’t matter whether the worker has another job

or has the maximum amount of Social Security tax withheld by another employer. Income tax

withholding may be figured the same way as for full-time workers, or it may be figured by the

part-year employment method explained in Publication 15-A.

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Chapter 12: Preparation of Payroll Checks

Review Payroll Records

After gross wages are computed for each employee, inspect the employee’s file to determine

federal and state (if applicable) income tax withholding allowances. You may be required to

withhold other items such as child support payments, wage garnishments by court order, federal

income tax wage levies, health insurance, charitable payroll deductions and other items. The

payroll department should retain copies of all items that support a deduction to an employee’s

wages for four years.

Federal Income Tax Withholding

To know how much federal income tax to withhold from employees’ wages, refer to the Form

W-4 on file for each employee. If a new employee does not give you a completed Form W-4,

withhold tax as if the employee is single, with no withholding allowances.

Generally, Form W-4 remains in effect until the employee submits a new one. If an employee

gives you a Form W-4 that replaces an existing Form W-4, begin withholding no later than the

start of the first payroll period ending on or after the 30th day from the date you received the

replacement Form W-4.

Form W-4 claiming exemption for the previous calendar year expires on February 15. A new

Form W-4 is required annually if the employee claimed exemption from withholding. Begin

withholding for any employee who previously claimed exemption from withholding but hasn’t

given you a new Form W-4 by February 16 of the current year. Withhold based on the last valid

Form W-4 you have for the employee that doesn’t claim exemption from withholding or, if one

doesn’t exist, as if the employee is single with zero withholding allowances.

The amount of income tax withholding must be based on marital status and withholding

allowances. Employees may not base their withholding amounts on a fixed dollar amount or

percentage. However, an employee may specify a dollar amount to be withheld in addition to the

amount of withholding based on filing status and withholding allowances claimed on Form W-4.

Employees may claim fewer withholding allowances than they are entitled to claim. They may

wish to claim fewer allowances to ensure that they have enough withholding or to offset other

sources of taxable income that are not subject to adequate withholding.

An employee may claim exemption from income tax withholding because the employee had no

income tax liability last year and expects none this year. The Form W-4 instructions state that

you cannot claim exemption from withholding if your income exceeds a certain dollar threshold

and includes more than a certain dollar amount of unearned income (for example, interest and

dividends) and another person can claim you as a dependent on their tax return. See the Form

W-4 instructions for these dollar amounts. The wages are still subject to Social Security and

Medicare taxes.

In general, if wages are paid to nonresident aliens, then income tax (unless exempted by

regulations), Social Security and Medicare taxes must be withheld just as is completed for a

U.S. citizen. The general rules for nonresident aliens are found in Publication 515, Withholding of

Tax on Nonresident Aliens and Foreign Entities, and Publication 519, U.S. Tax Guide for Aliens.

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Chapter 12: Preparation of Payroll Checks

Social Security and Medicare Taxes

The Federal Insurance Contributions Act (FICA) provides for a federal system of old age,

survivors, disability and hospital insurance. The old age, survivors and disability insurance part

is financed by the Social Security tax. The hospital insurance part is financed by the Medicare

tax. Each of these taxes is reported separately.

Social Security and Medicare taxes are levied on both the employer and employees. The

employer must withhold and deposit the employee’s part of the taxes and must pay a matching

amount. Generally, employee wages are subject to Social Security and Medicare taxes

regardless of the employee’s age or whether he or she is receiving Social Security benefits.

Other Payroll Deductions

Before arriving at the employee’s net paycheck, the individual’s payroll folder must be reviewed

to determine if other amounts are required to be withheld. Many states require the employer to

withhold state income taxes. Income earned by members of an Indian tribe who live and work on

their reservation is generally not subject to state income tax. Contact your state tax authority for

information and instructions on their requirements.

Miscellaneous payroll deductions may include insurance, charitable items, union dues and

others. In each case, you should have an authorization signed by the employee to allow you

to make deductions from their wages and remit to the various organizations. Each signed

authorization should have instructions on when and where to remit payments. It’s important to

be able to account for each deduction from an employee’s paycheck.

There may be involuntary deductions from an employee’s paycheck such as a court ordered

judgment, a federal or state tax levy or court enforced child support payments. In these cases,

federal or state law requires the employer to make the deductions and remit them to the

appropriate agency, even if the employee disagrees with the process. Again, the employer is

required to keep all payroll records for at least four years.

Payroll Taxes

After you have computed payroll, you must calculate your payroll tax liability.

Federal income, Social Security and Medicare taxes are withheld from your employees’ pay.

Taxes withheld from employees’ pay make up what is known as “trust fund” taxes. They are

called trust fund taxes because you are entrusted to deposit the taxes withheld from your

employees’ wages with a federal depository. See Chapter 19 for more specific information on

trust fund penalties.

NOTE: As the employer, you are entrusted with the responsibility of remitting other payroll

deductions withheld from employees’ wages to the proper payee.

Net Paycheck

Once you ensure that you have computed the payroll correctly, then you’re ready to issue payroll

checks. You may want to use a computerized or manual payroll system to monitor the process.

Often, someone other than the payroll clerk is required to sign payroll checks as a matter of

internal control.

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Chapter 12: Preparation of Payroll Checks

Many computerized payroll systems automatically print a check stub with fields to list the gross

wages and each of the items deducted, with columns for the current pay period and year-to-date

totals for each category. If your system does not automatically track these items, then you may

want to design a spreadsheet to do so. Employees need to be able to reconcile these items from

time to time during the year to ensure that the proper amounts are being withheld.

Example 12.1

Sample Payroll Ledger Sheet for an Hourly Employee Paid Weekly For the Quarter

Ending March 31

Name

SSN

Address

W-4

W-5

John Doe

123-45-6789

111 Elm St.

Anytown, USA

Married,

3 exemptions

None

Hrs.

Hourly

Rate

Gross

Pay

Week 1

40

$10.00

Week 2

38

$10.00

Week 3

40

Week 4

40

Week 5

Week 6

Date

Social

Security

Medicare

Federal

WH

$400.00

$24.80

$5.80

$7.00

$380.00

$23.56

$5.51

$5.00

$10.00

$400.00

$24.80

$5.80

$10.00

$400.00

$24.80

$5.80

38

$10.00

$380.00

$23.56

38

$10.00

$380.00

$23.56

Week 7

40

$10.00

$400.00

Week 8

40

$10.00

$400.00

Week 9

32

$10.00

Week 10

31

$10.00

Week 11

40

Vacation

Week 13

State

WH

Insurance

Other

Net Pay

$4.00

$25.00

$0.00

$333.40

$4.00

$25.00

$0.00

$316.93

$7.00

$4.00

$25.00

$0.00

$333.40

$7.00

$4.00

$25.00

$0.00

$333.40

$5.51

$5.00

$4.00

$25.00

$0.00

$316.93

$5.51

$5.00

$4.00

$25.00

$0.00

$316.93

$24.80

$5.80

$7.00

$4.00

$25.00

$0.00

$333.40

$24.80

$5.80

$7.00

$4.00

$25.00

$0.00

$333.40

$320.00

$19.84

$4.64

$0.00

$2.00

$25.00

$0.00

$268.52

$310.00

$19.22

$4.50

$0.00

$0.00

$25.00

$0.00

$261.28

$10.00

$400.00

$24.80

$5.80

$7.00

$4.00

$25.00

$0.00

$333.40

40

$10.00

$400.00

$24.80

$5.80

$7.00

$4.00

$25.00

$0.00

$333.40

40

$10.00

$400.00

$24.80

$5.80

$7.00

$4.00

$25.00

$0.00

$333.40

$4,970.00

$308.14

$72.07

$71.00

$46.00

$325.00

$0.00

$4,147.79

January

February

March

Total

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Chapter 12: Preparation of Payroll Checks

Example 12.2

Sample Payroll Ledger Sheet for a Salaried Employee Paid Semi-Monthly

Date

Name

SSN

Address

W-4

W-5

John Doe

000-65-4321

111 Elm St.

Anytown, USA

Married,

2 e

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