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PCORI Fee is Back and There?ÇÖs No Relief From Its Deadline: July 31, 2020

The plan year ending before October 1, 2019 was supposed to be the last year that the Patient-Centered Outcomes Research Institute (?Ç£PCORI?Ç¥) fee was required to be paid. However, legislation passed in December 2019 extended the PCORI fee for another ten years. Recognizing that plan sponsors believed the PCORI fee was ending and may not have anticipated the need to identify the number of covered lives to determine the PCORI fee, the IRS issued transition relief for the plan year ending before October 1, 2020. Under this transition relief, in addition to using one of the three methods specified in the regulations, plan sponsors may use any reasonable method for calculating the average number of covered lives. For the plan year ending on or after October 1, 2019 and before October 1, 2020, the PCORI fee is $2.54 times the average number of covered lives. Payment of the PCORI fee… Continue Reading

Payments for Certain Healthcare Arrangements are Tax Deductible

The IRS recently issued proposed regulations that?áaddress the treatment of amounts paid by an individual for a ?Ç£direct primary care arrangement?Ç¥ or a ?Ç£health care sharing ministry?Ç¥ (collectively, the ?Ç£Arrangements?Ç¥) as being tax-deductible ?Ç£medical care expenses?Ç¥ under Section 213 of the Internal Revenue Code (the ?Ç£Code?Ç¥). Under the proposed regulations, a direct primary care arrangement (?Ç£DPC Arrangement?Ç¥) is defined as a contract between the individual and one or more primary care physicians pursuant to which the physician(s) agree to provide medical care for a fixed annual or periodic fee without billing a third party. A health care sharing ministry (?Ç£Sharing Ministry?Ç¥) is defined as a tax-exempt organization under Section 501(c)(3) of the Code that meets specified requirements, including that its members share a common set of ethical or religious beliefs and share medical expenses in accordance with those beliefs. HSAs and the Arrangements. The preamble to the proposed regulations confirms… Continue Reading

The IRS Amends COVID-19 Relief to Add Additional Time-Sensitive Actions

Previously, IRS Notice 2020-23 extended the due dates for certain tax payments, filings, and other ?Ç£Time-Sensitive Actions?Ç¥ that would ordinarily fall on or after April 1, 2020 through July 14, 2020 to July 15, 2020. See our prior blog post on Notice 2020-23 here. The IRS recently issued Notice 2020-35 to make additional Time-Sensitive Actions eligible for relief. For example, under this new guidance, an employer that receives a compliance statement issued under the voluntary correction program (VCP) component of the Employee Plans Compliance Resolution System (EPCRS) with a 150-day deadline to implement all corrective actions that ends between April 1, 2020 through July 14, 2020 has until July 15, 2020 to implement the corrections. A full list of the Time-Sensitive Actions is included in Section III.B of Notice 2020-35, which is available here.

IRS Relief Allows Individuals to Make Participant Elections Electronically

Treasury Regulations ?º 1.401(a)-21(d)(6) requires participant elections, including spousal consents, to be witnessed in the physical presence of a plan representative or notary public.?á In light of the COVID-19 pandemic, the IRS recently issued Notice 2020-42 (the ?Ç£Notice?Ç¥) to allow individuals making participant elections to do so through electronic means for the period from January 1, 2020 through December 31, 2020.?á For participant elections, including spousal consents, that require a signature to be witnessed in the physical presence of a notary public, the ?Ç£physical presence?Ç¥ requirement is satisfied if remote notarization is done through live audio-video technology that otherwise satisfies the requirements of Treasury Regulations ?º 1.401(a)-21(d)(6) and is compliant with state law applicable to notaries.?á For participant elections, including spousal consents, that require a signature to be witnessed in the physical presence of a plan representative, the ?Ç£physical presence?Ç¥ requirement is satisfied if (i) the person signing the participant… Continue Reading

IRS Issues Proposed Rule on Withholding from Periodic Payments from Pensions and Annuities

Under Section 3405(e)(2) of the Internal Revenue Code, withholding from periodic payments from pensions and annuities is determined under rules prescribed by the Secretary of the Treasury. Currently, under IRS Notice 2020?Çô3, if no withholding certificate is in effect, the required withholding amount is determined by treating the payee as a married individual claiming three withholding exemptions. Under the proposed rule, beginning in 2021, the required withholding amount will be determined in the manner described in the applicable forms, instructions, publications, and other guidance prescribed by the IRS Commissioner (e.g., the annual Publication 15-T and instructions to Form W-4P). The Proposed Rule can be found here.

DOL Issues Relief for Plan Fiduciaries

The DOL’s Employee Benefits Security Administration (?Ç£EBSA?Ç¥) recently issued EBSA Disaster Relief Notice 2020-01. Notice 2020-01 applies to employee benefit plans, employers, labor organizations, and other plan sponsors, plan fiduciaries, participants and beneficiaries, and service providers subject to ERISA. Notice 2020-01 remains in effect from March 1, 2020 until 60 days after the announcement of the end of the presidentially declared national emergency due to COVID-19 (the ?Ç£National Emergency?Ç¥). Untimely Notice Relief Fiduciaries of ERISA plans generally have an obligation to provide notices and disclosures in accordance with the timing requirements of ERISA. However, under Notice 2020-01, the employee benefit plan and the responsible plan fiduciary will not be considered to violate ERISA for failing to timely furnish a notice, disclosure, or document that must be furnished between March 1, 2020 and 60 days after the announced end of the National Emergency, if the plan and responsible fiduciary act in… Continue Reading

CARES Act: Calculating Qualified Health Plan Expenses for Purposes of the Employee Retention Credit

Under the CARES Act, employers are eligible to claim an employee retention credit if certain conditions are met (see our prior blog post on the employee retention credit, as well as other employee benefits and executive compensation changes made by the CARES Act, here). The tax credit is equal to 50% of ?Ç£qualified wages?Ç¥ paid to employees of up to $10,000. Qualified wages include (i) wages actually paid to covered employees (other than qualified paid sick and family leave wages for which a credit is allowed under the Families First Coronavirus Response Act) and (ii) the ?Ç£qualified health plan expenses?Ç¥ allocable to such employees. On May 11, 2020, the IRS published new FAQs clarifying how qualified health plan expenses should be calculated for purposes of the employee retention credit. Notably, the FAQs provide guidance on how to calculate such expenses when an employer sponsors more than one health plan (e.g.,… Continue Reading

Taxpayers May Temporarily Submit Certain Requests Electronically to the IRS

The IRS released Rev. Proc. 2020-29, which modifies Rev. Proc. 2020-1, to temporarily allow taxpayers to electronically submit requests for letter rulings, closing agreements, determination letters (including those issued by the IRS Large Business and International Division), and information letters, which are under the jurisdiction of the IRS Office of Chief Counsel. The procedures for determination letters issued by the IRS?ÇÖs Small Business/Self Employed Division, Wage and Investment Division, or Tax Exempt and Government Entities Division remain unchanged. Rev. Proc. 2020-29 describes the procedural, formatting, and technical requirements for any such electronic submissions and is effective April 30, 2020, until modified or superseded. Rev. Proc. 2020-29 is available here.

Extension of Certain Timeframes for Employee Benefit Plans

On April 29, 2020, the U.S. Departments of Labor and the Treasury (together, the ?Ç£Departments?Ç¥) issued a notice (the ?Ç£Notice?Ç¥) requiring that all group health plans, disability and other types of employee welfare benefit plans, and employee pension benefit plans, subject to ERISA and the Internal Revenue Code, must disregard the period from March 1, 2020 until 60 days after the announced end of the COVID-19 National Emergency or such other date as announced by the Departments in a future notice (the ?Ç£Outbreak Period?Ç¥) for the following periods and dates: The 30-day period (or 60-day period, if applicable) to request HIPAA special enrollment; The 60-day election period for COBRA continuation coverage; The date for making COBRA premium payments; The date for individuals to notify the plan of a COBRA qualifying event or determination of disability; The date within which individuals may file a benefit claim under the plan?ÇÖs claims procedures;… Continue Reading

You?ÇÖve Got (?Ç£Snail?Ç¥) Mail

In light of the COVID-19 pandemic and the fact that most offices are closed, with employees largely working remotely, it may be easy to imagine that the whole world functions online. This is not true. Many governmental agencies, including the IRS and DOL, continue to rely heavily, if not nearly exclusively, on the United States Postal Service for delivering plan-related communications. For this reason, it is important that someone within your organization continues to check your ?Ç£snail?Ç¥ mail during this time of pandemic, particularly if you have a plan that is subject to an ongoing audit or investigation or a pending determination letter or Voluntary Correction Program application. The IRS and DOL frequently request additional information in these contexts, providing a limited time period (normally, fourteen days) to respond. While the agencies are typically generous in granting extensions to respond, such extensions must be requested.

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