4Thought Blog

4thought graphic - blog 2020

IRS Clarifies Rules on Excess Compensation Tax for Nonprofits

Posted by Concannon Miller on Thu, Jul 8, 2021

Find me on:

IRS Clarifies Rules on Excess Compensation Tax for NonprofitsThe Tax Cuts and Jobs Act contains an often-overlooked crackdown on seven-figure compensation amounts paid to the highest earners. Essentially, beginning in 2018, your nonprofit organization could be charged a hefty excise tax if it pays more than $1 million to certain "covered" employees. 

The IRS issued final regulations in early 2021 that generally mirror proposed regs released in 2020 and guidance provided in Notice 2019-09. The new regs, which fall short of wholesale changes requested by nonprofits and other members of the tax community, went into effect on January 15, 2021.

But technically, they don't apply until tax years beginning after 2021. So you still have time to get up-to-speed.

Who's Covered, What's Taxed

Under the law, the definition of "covered" employees includes an organization's five highest-compensated employees (HCEs) for the current tax year, based on remuneration paid in the calendar year ending with or within the fiscal year. It also includes any individual who was a covered employee for any preceding tax year beginning after 2016. Note: There's no minimum dollar threshold for covered HCEs for purposes of this calculation.

The excise tax kicks in if a covered employee receives remuneration of more than $1 million in a tax year. The tax applies to the portion above $1 million, not the entire amount, and is equal to the corporate tax rate — currently a flat 21%. For these purposes, "remuneration" includes wages paid that are subject to federal income tax withholding, such as salary and bonuses, plus amounts included in gross income under a nonqualified deferred compensation plan.

Here's an example of how easily compensation can exceed $1 million:

  • A nonprofit pays its president an annual salary of $800,000 and contributes $50,000 a year to a deferred compensation plan on the president's behalf for 10 years.
  • If, at the end of 10 years, the cumulative benefits vest all at once, the president's total remuneration is $1.3 million that year [$800,000 + ($50,000 × 10)].
  • Thus, the nonprofit is liable for an excise tax on the $300,000 excess compensation, resulting in a tax bill of $63,000 (21% of $300,000).

READ MORE: Is Your Nonprofit Altering Operations? Watch Out for Unrelated Business Income Tax

Several Clarifications

Notice 2019-09 and the 2021 final regulations provide several clarifications to the law regarding covered individuals. Specifically:

  • Each tax-exempt organization operating within a related group of organizations must make a separate determination of who are covered employees each tax year. This applies even if an organization doesn’t trigger the excise tax in a particular year.
  • An individual who’s designated as a covered employee remains a covered employee indefinitely, even if the person is no longer one of the organization's five HCEs.
  • When it determines its five HCEs, an organization must include remuneration paid to the employee by any related organizations.

The IRS also provides guidance on reporting. The tax must be reported on Form 4720, "Return of Certain Excise Taxes Under Chapters 41 and 42 of the Internal Revenue Code." However, the IRS has compiled data showing that many nonprofits are failing to meet the reporting requirements when one of its covered employees exceeds the $1 million threshold.

Notably, tax-exempt organizations with a calendar tax year were initially required to start filing Form 4720 by May 15, 2019, and should continue doing so by each May 15 following the applicable taxable years. An organization with a non-calendar tax year must file Form 4720 by its tax return due date.

READ MORE: Time to Make a Change? 6 Steps to Streamline An Auditor Transition

4 Points

The final regulations further clarify the following four key points:

  • There's no "grandfather rule" for deferred compensation plans. The excise tax applies to compensation that's paid or becomes vested during tax years beginning after 2017. The IRS has rejected requests to grandfather amounts paid under agreements created before the TCJA was enacted.
  • As reflected in prior guidance, the final regs establish that excess compensation rules apply to all organizations that are exempt from tax under Section 501(a). This includes most domestic not-for-profit organizations.
  • Deferred compensation counts toward the $1 million threshold for the tax year in which it becomes vested and is no longer subject to a substantial risk of being forfeited. It doesn't matter when it's actually paid.
  • The IRS has rejected requests to count only remuneration paid by an organization when calculating the $1 million limit. Therefore, the "aggregation rule" remains in place.

Be Prepared

Although the IRS hasn't necessarily made all the changes to excess compensation rules desired by nonprofit organizations, you must be prepared to comply. If you're assessed an excise tax, pay it promptly. Contact us for assistance.

Concannon Miller blog subscription sign up

© 2021

Topics: Nonprofit Organizations

Concannon Miller’s unique, holistic and intimate approach to financial health sets us apart from smaller CPA firms with more limited resources as well as mega firms where mid-sized clients struggle for attention. Contact us here to talk about improving your business.

This communication is designed to provide accurate and authoritative information in regard to the subject matter covered at the time it was published. However, the general information herein is not intended to be nor should it be treated as tax, legal, or accounting advice. Additional issues could exist that would affect the tax treatment of a specific transaction and, therefore, taxpayers should seek advice from an independent tax advisor based on their particular circumstances before acting on any information presented. This information is not intended to be nor can it be used by any taxpayer for the purposes of avoiding tax penalties.

Subscribe for more Timely Tips for Businesses

Recent Posts