Executive Action Defers Payroll Taxes

August 13, 2020

On Saturday, August 8, President Trump signed a memorandum deferring the deadline for payroll taxes that employers deduct from employee paychecks and submit to the IRS. The order defers employees’ obligation to pay a 6.2% Social Security tax per paycheck and defers these taxes from September 1 through December 31, 2020.

Treasury Secretary Steven Mnuchin clarified on August 12 that the deferral is optional and that employers can decide for themselves if they want to continue remitting this tax or not. There is a possibility that employees, if not given the option to defer their payroll taxes, may initiate legal action against their employers, so we urge our clients to consider this possibility as they decide how to proceed. The tax deferral, if opted for, applies to employees whose pre-tax biweekly compensation is less than $4,000 (which is the equivalent of about $104,000 in annual earnings).

During these early stages, it’s important to understand that this is a deferral and not a forgiveness of the tax debts. Employers, by law, are responsible for these payroll taxes, so they should exercise caution moving forward. It’s unclear who will face liability if the taxes are unpaid when the deferral ends — it’s possible that the IRS holds both the employer and the employee accountable. Late payments would be subject to both interest and penalties.

Our understanding is that the U.S. Treasury Department will provide guidance on the implementation process no later than September 1. Hopefully we will get some more clarity on the future requirements for tax remittance, especially when it comes to liability for unpaid payroll taxes.

The memorandum also states, “The Secretary of the Treasury shall explore avenues, including legislation, to eliminate the obligation to pay the taxes deferred pursuant to the implementation of this memorandum.” In other words, Congress will indeed be asked to forgive the deferred taxes, but we’ll have to see how they decide to proceed. Until additional legislation is provided, however, employers and employees should not plan on tax forgiveness, but should rather anticipate owing the taxes once the deferral period is over.

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