As you are probably aware, President Trump signed an executive memorandum on August 8 creating a payroll tax deferral. The development has brought with it much uncertainty regarding administrative compliance and the long-term impact of this pandemic-related relief.

Deferral Details

Under the memorandum, an employer may choose to postpone withholding, deposit, and payment of the employee’s share of Social Security tax (6.2 percent) on wages paid from September 1, 2020 through December 31, 2020. The wages in question must be less than $4,000 on a biweekly pay period basis or an equivalent amount in other pay periods. The threshold is determined on a pay-period-by-pay-period basis.

The IRS recently released Notice 2020-65, which postpones the withholding and remittance of the employee’s share of Social Security tax ratably between January 1, 2021 and April 30, 2021. Penalties, interest, and additions to tax will begin to accrue on May 1, 2021 for any unpaid taxes. The Notice states that, if necessary, an employer may arrange to collect the total applicable taxes from the employee.

Your Decision

The postponement of the withholding and remittance of the employee’s share of Social Security tax is optional. You may seek input from employees about their desire to participate but doing so is not required. Whether to permit employees to opt in or opt out of the postponement also is at your discretion and not addressed in recent guidance.

An IRS spokesperson has explained that Form 941 is being revised for the third quarter of 2020 to report postponed taxes for employers who elect to participate in the deferral. The final Form 941 will be released in late September for filing in October.

The Notice permits employers who have elected the postponement to begin withholding the employee’s share on January 1, 2021, but such withholding may have unforeseen and detrimental consequences. Specifically, unless Congress passes a law to forgive the deferred taxes, employees will end up receiving less in take-home pay in the first four months of 2021.

Further Developments

With so many questions remaining, employers should proceed carefully when deciding whether to opt for the postponement. The IRS has stated that, regardless of whether the amounts are recovered from an employee, the employer will remain liable for the employee’s share and must remit the postponed withholding of the employee’s share of Social Security tax by April 30, 2021.

However, if you choose to elect the postponement, it is a good idea to provide a notice to employees that clearly states that the employee’s share of Social Security is postponed until December 31, 2020 and withholding for these amounts will occur ratably between January 1, 2021, and April 30, 2021. That extra withholding will be in addition to employment tax withholding otherwise required on wages for January through April 2021. Our firm can provide more information on the payroll tax deferral and keep you updated on further developments.