Tax Treatment of Certain Wellness Arrangements
Jul 10, 2023
The IRS recently released Memorandum Number (“the Memo”[1]) which addresses the tax treatment of arrangements that claim to offer significant tax savings and “free benefits” to employers and employees through a wellness plan associated with an indemnity insurance plan.
In the Memo, the IRS determines that benefits provided through the arrangement in question should be treated as taxable income to the employee and subject to payroll taxes and income tax withholding.
Similar types of arrangements promising significant tax savings, and “free benefits” funded by those savings, have been around for years. A new version of these schemes seems to re-emerge every so often and the IRS has released memorandums and other guidance several times to address each new iteration. In virtually every case the IRS has determined that the tax saving “plan” does not work, and that some of the benefits provided through the arrangement should be treated as taxable income to employees. This latest example is no different.
In short, the IRS determined that benefits provided through the arrangement (that were described by the promoters of the plan as “tax-free”) should be treated as taxable compensation to the employee. As such, the employer should pay applicable payroll taxes and withhold the appropriate amount of income tax from the payments made to employees.
The IRS memo makes important points about the tax status of certain benefits including:
The memo goes on to state that since the fixed-indemnity policy in this case paid employees $1,000 per month without regard to whether the employee has any unreimbursed health insurance expenses, the payment should be included in the employee’s gross income and treated as “wages” for employment tax purposes.
Employers offering these types of plans could be subject to back taxes, penalties, and interest on unpaid payroll taxes and could also face penalties based on the employer’s incorrect filing of its Forms W-2. The employer could also be required to restate these payments as taxable compensation to employees, subjecting them to additional tax liability.
While this IRS memo addresses a specific type of arrangement, it is not the only time the IRS has issued similar guidance for other “tax-saving” plans promoted over the years. Different issues have been addressed by the IRS in previous Chief Counsel Memoranda (05/27/2016), (01/20/2017), and (05/12/2017).
In all these memos, the IRS found that arrangements described as providing “tax-free” benefits, or payroll tax savings that exceeded the cost of the “plan” were, in fact, not legitimate.
Undoubtedly, promoters of similar arrangements will argue that this latest IRS memo does not apply to their approach, and that their “plan” is different. However, employers should be very wary of offering any benefit that claims to create enough tax savings to be able to offer “free” benefits to employees.
In virtually all cases these schemes will not hold up to scrutiny and can expose the employer and employee to the risk of tax related payments, interest, and penalties.
Employers should approach tax-savings arrangements via fixed payments with caution especially an arrangement that sounds too good to be true. We encourage our audience to consult their benefit broker prior to implementing such an arrangement.
[1] Office of Chief Counsel memoranda are issued to provide legal opinions on certain matters to internal IRS staff. While they cannot be used or cited as precedent, they represent the Service’s interpretation regarding the specific legal issues addressed in the memo.
IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information. This material should not be considered as a substitute for legal, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.