Using Leave-Sharing Plans During the COVID-19 Pandemic

The IRS has issued specific guidance for the tax treatment of a leave-sharing arrangement that permits employees to donate PTO/leave/vacation time in an employer-sponsored leave bank for use by other employees adversely affected by an event declared a major disaster or emergency by the President. See IRS Notice 2006-59.

Tax Treatment of Donating Employee

General Tax Rule

Generally, the employee who donates PTO/leave/vacation time will be treated as having W-2 compensation for the donated time (based on his or her rate of pay at the time of the donation). This rule is based on the long-standing "assignment of income" tax law doctrine.

IRS Exceptions

The IRS has created several limited exceptions to the general rule:

1. Medical leave-sharing plans. See IRS Revenue Ruling 90-29.
   
   
2. Major disaster leave-sharing plans. See IRS Notice 2006-59.

• Leave-based donations of cash to charitable organizations in the case of qualified disasters, including:
• • Hurricane Harvey and Tropical Storm Harvey. See IRS Notice 2017-48.
  • Hurricane Irma and Tropical Storm Irma. See IRS Notice 2017-52.
  • Ebola Virus. See IRS Notice 2014-65.

Exception for Major Disaster Leave-Sharing Arrangement

See IRS Notice 2006-59.

If an employer sponsors a "major disaster leave-sharing plan" that meets the requirements listed below:

• Employees who donate leave will not be taxed on the donated leave time.
• Employees who use donated leave will be taxed on the donated leave time used—e.g., the donated leave time used is treated as W-2 wages for all income and employment tax withholding purposes.

'Major Disaster Leave-Sharing Plan' Requirements

A "major disaster leave-sharing plan" is a written plan that meets these requirements:

*The plan allows a leave donor to donate accrued leave to an employer-sponsored leave bank for use by other employees adversely affected by a major disaster or emergency (as declared by the President). An employee is considered "adversely affected" by a major disaster if it has caused severe hardship to the employee or a family member of the employee that requires the employee to be absent from work.

• The plan does not allow a leave donor to donate leave to a specific leave recipient.
• The amount of leave that a leave donor may donate in any year generally may not exceed the maximum amount of leave that he or she normally accrues during the year.
• A leave recipient may receive paid leave (at his or her normal rate of compensation) from the donated leave bank. Each leave recipient must use this leave for purposes related to the major disaster.
• The plan adopts a reasonable limit, based on the severity of the disaster, on the period of time after the major disaster occurs during which a leave donor may donate, and a leave recipient must use, the donated leave.
• A leave recipient may not convert leave received under the plan into cash in lieu of using the leave.

However, a leave recipient may use leave received under the plan to eliminate a negative leave balance that arose from leave advanced to the leave recipient because of the effects of the major disaster. A leave recipient also may substitute leave received under the plan for leave without pay used because of the major disaster.

• The employer must make a reasonable determination, based on need, as to how much leave each approved leave recipient may receive under the plan.
• Leave donated due to one major disaster may be used only for employees affected by that disaster.

Except for an amount so small as to make accounting for it unreasonable or administratively impracticable, any leave donated under a major disaster leave-sharing plan not used by leave recipients by the end of the period specified in the plan must be returned within a reasonable period of time to the leave donors (or, at the employer's option, to those leave donors still employed by the employer) so the donor can use the leave.

• The leave returned to each leave donor must be in the same proportion as (1) the leave donated by each leave donor bears to (2) the total leave donated because of that major disaster.

If a leave-sharing arrangement does not meet these specific requirements, then the donating employee MUST be treated as having W-2 compensation for the donated time (based on his or her rate of pay at the time of the donation). See IRS Letter Ruling 200720017.

[SHRM members-only policies: Leave Sharing/Donation Policy]

Tax Treatment of Employee Receiving Donated PTO/Leave/Vacation Time

Any payments received by an employee using donated PTO/leave/vacation time under the program must be treated as W-2 wages for all income and employment tax withholding purposes.

What an Employer Has To Do

*In order to use either of the two tax exceptions described above, the employer must have a formal written leave-sharing program.

*The IRS does not require an employer to obtain any pre-approval of a leave-sharing program nor does the IRS require an employer to file any subsequent reports about the program. Also, since a leave-sharing plan is not subject to ERISA, there are no filings or other actions required by the DOL In short, the only employer reporting obligation is to properly report W-2 wages and withhold taxes.

Cash Payments to Affected Employees

Note that separate from a major disaster leave-sharing program, Section 139 of the Internal Revenue Code provides that a tax-free disaster relief payment can be made in cash to any individual if the payment is a "qualified disaster relief payment." Both the Congressional report for Section 139 and the IRS have made clear that the requirements for making tax-free disaster relief payments are very simple and easy to meet.

The Congressional report and Section 139 specifically provide that qualified disaster relief payments are excluded from gross income and from wages and compensation for employment taxes. As a result, an employer can make tax-free disaster relief payments to its employees.

• Section 139 applies only to the federal tax treatment of the payments. State tax laws may or may not be the same.

Note that an employee who donates cash to another employee can make the donation only out of after-tax income.

Bruce H. Schwartz is a principal in the New York Metro and White Plains, N.Y., offices of law firm Jackson Lewis. © 2020 Jackson Lewis P.C. All rights reserved. Reposted with permission.

Related SHRM Article

IRS Clarifies Tax Treatment for Leave-Based Donations to COVID-19 Charities, SHRM Online, June 2020