409A Tax Reporting Guidance is Extended to 2007

An IRS announcement said Notice 2007-89 provides that during the calendar year 2007, employers and payers may omit reporting on amounts deferred under a nonqualified deferred compensation plan (NQDP). An employer or payer is not required to report amounts deferred during the year in Box 12 of Form W-2 using Code Y, or in Box 15a of Form 1099-MISC.

The IRS said an employer must treat money included as gross income as wages for income tax withholding purposes and report it as wages paid on Line 2 of Form 941, and in Box 1 of Form W-2. An employer also must report amounts includible in gross income in Box 12 of Form W-2 using Code Z., the tax agency said.

Further, a payer must report amounts included in gross income under Section 409A and not treated as wages under Section 3401(a) in Box 7 of Form 1099-MISC, and must also report such amounts in Box 15b of Form 1099-MISC.

Because amounts includible in gross income are considered supplemental wages, employees may have to pay estimated taxes to avoid penalties under Section 6654, the IRS said.

The notice said the amount included in income and reported by the employer equals the portion of the total amount deferred under the plan that, as of December 31, 2007, is not subject to a substantial risk of forfeiture, “and has not been included in income in a previous year, plus any amounts of deferred compensation paid or made available to the [employee]” during calendar year 2007, the IRS said.

An amount may be treated as previously included in income if it was properly reported by the employer or payer in accordance with earlier guidance.

The new guidance provides that money “actually or constructively received” during calendar year 2007 is classified as wages by the employer when the amounts are received by the employee for purposes of withholding, depositing, and reporting. Money neither actually nor constructively received by the employee during calendar year 2007 is treated as wages on December 31, 2007, for purposes of withholding, depositing, and reporting the income, the notice said.

The tax officials said if taxes are not withheld or withholding amounts are less than the required amounts, the employee will receive credit for 2007 if the employer follows one of two possible options:

• to withhold or recover from the employee the undercollected amount after December 31, 2007, and before February 1, 2008, and report as wages for the quarter ending December 31, 2007, such amounts on that quarter’s Form 941 and in Box 1 of the employee’s W-2 for 2007; or
• to pay the income tax withholding liability for the employee, “without deduction from the employee’s wages or other reimbursement by the employee,” and report such funds were neither actually nor constructively received but are includible in income for the quarter ending December 31, 2007, as well as other employment taxes and income tax withholding wages on Form 941 and Form 940, and in Box 1 of Form W-2 for 2007.

In addition, the notice provided rules to include income under Section 409A(b) relating to offshore trusts and assets restricted under rules added by the Pension Protection Act. It also provided guidance on calculation of the additional 20% tax and interest at the underpayment rate plus 1%.

IRS and Treasury officials have requested comments on the rules. Comments are due by February 13, 2008. Electronic submissions should be sent to Notice.comments@irscounsel.treas.gov. Include the notice number in the subject line.

Written comments should be sent to IRS, CC:PA:LPD:RU, Rm. 5203, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044, or hand delivered to the Courier’s Desk at the IRS, 1111 Constitution Ave., N.W. Washington, D.C. 20224.

The latest IRS guidance is available at http://www.irs.gov/pub/irs-drop/n-07-89.pdf.