Vision Payroll

In Mullally, et al. v. Waste Management of Massachusetts, Inc., SJC-10181 (Mass. 11/6/2008), the Supreme Judicial Court of the Commonwealth of Massachusetts (SJC) ruled that the defendant (Waste Management) violated Massachusetts law by “calculating overtime wages using a regular hourly rate less than the prevailing wage eligible employees must be paid.” The employees who filed suit were required under Massachusetts General Laws (MGL) c. 149, §27F to receive the prevailing wage rate for “waste disposal employees performing under municipal contracts.” Waste Management had devised a formula under which employees always received the prevailing wage or higher when averaging the hourly rate for straight time and overtime. The SJC ruled that Massachusetts law (MGL c. 151, §1A) requires employees to receive at least the prevailing wage in cash and allowed benefits for straight time and one and one half time the prevailing wage in cash and allowed benefits for overtime. Allowing Waste Management’s formula would evade “the economic disincentive to have an employee work more than forty hours a week” since there would be little or no overtime premium paid regardless of the number of hours worked. The SJC remanded the case to Massachusetts Superior Court for further proceedings to determine the amount of damages. Vision Payroll strongly recommends that you review all overtime calculations with your labor attorney to ensure compliance with all applicable federal and state laws.

The US Court of Appeals for the 7^th Circuit ruled recently in Jefferson v. US, 06-4082 (7^th Cir. 10/8/2008) that the IRS rightfully imposed an Internal Revenue Code of 1986 (IRC) §6672 penalty against a former president of the board of directors of a tax-exempt day care facility since he was a responsible person whose behavior was willful. Charles E. Jefferson was president of the board of directors of New Zion Day Care Center, Inc. (Center) in Rockford, Illinois. Although Jefferson’s position was voluntary and uncompensated, he had check-signing authority and had previously secured loans for, among other things, payment of overdue payroll taxes for the Center. He was aware of the Center’s unpaid payroll tax liabilities from monthly reports and monthly meetings of the directors. Although he was uncompensated, Jefferson did not qualify for relief under IRC §6672(e) since it was determined that he participated in the day-to-day operations of the Center. The court agreed that the Internal Revenue Service (IRS) has failed to comply with §904(b) of Public Law 104-168 (Taxpayer Bill of Rights 2) in that it did not provide the explanatory materials required, but concluded Jefferson did not show “any prejudice from the IRS’s failure”. Finally, even though the IRS may have failed to turn over evidence and lost other documents relevant to the case, the court indicated that the documents would not have had any impact on the outcome of the case. Vision Payroll strongly recommends that all volunteer directors in tax-exempt organizations review the exemption under §6672(e) with their attorney. If the exemption does not apply, directors must ensure themselves all trust fund liabilities are being paid, regardless of their actual involvement with the organization’s daily activities.

This week’s question comes from Becca, a sales rep: I read before that the wage base for 2008 was $102,000. I made over $90,000 at my first job and have earned more than $30,000 at my new job. Why didn’t my FICA tax deduction stop? Answer: The wage base generally must be applied on an employer-by employer basis. Regardless of how much you’ve earned at previous jobs, most employers must withhold the maximum tax again. There are some exceptions, including successor employers and common paymasters, but the general rule is you must reach the maximum again at your second job to stop the withholding. Even though the employer must pay the full tax and withhold it from the employee, amounts withheld above the maximum can be claimed as a credit on Form 1040. For tax year 2008, enter any excess FICA tax withheld by two or more employers on line 65 of Form 1040 and reduce your balance due or increase your overpayment by the amount of the excess. Contact Vision Payroll if you have any questions on the Social Security wage base.

According to the US Department of Labor, in the week ended November 22, the advance figure for seasonally adjusted initial claims was 529,000, a decrease of 14,000 from the previous week’s revised figure of 543,000. The 4-week moving average was 518,000, an increase of 11,000 from the previous week’s revised average of 507,000.

Do you know what you need to know about at-will employment? Does it release you from any and all employment obligations and liabilities? What are the three exceptions to at-will employment? How can you find out what should be included in the offer letter, the employee handbook, and employment agreements to reduce your risk? Learn the answers to these questions and more in this month’s HRCast, a recording provided by our team of HR Pros and available exclusively on MyHRSupportCenter. Visit MyHRSupportCenter regularly not only for our HRCasts, but also to get late-breaking compliance alerts, best practices to implement, and HR tools to use every day. If you’re not yet signed up or would like a free trial of MyHRSupportCenter, contact Vision Payroll today.

The standard mileage rates for the use of automobiles beginning January 1, 2009 will be 55 cents per mile for business miles driven and 24 cents per mile driven for medical or moving purposes, the Internal Revenue Service announced yesterday in IR-2008-131. The new rates are changed from 58.5 cents per mile for business travel and 27 cents per mile for moving and medical travel for the second half of 2008. The rate for miles driven in service of charitable organizations has remained the same at 14 cents per mile. Contact Vision Payroll if you have any questions on 2009 mileage rates.

The Internal Revenue Service (IRS) recently issued Fact Sheet FS-2008-25, which discusses S corporation officer compensation. Corporate officers, whether in S corporations or C corporations, are generally considered employees of the corporation. Officers who perform only minor services or no services and are not entitled to and do not receive compensation are not considered employees.

As an employee, officers who are also shareholders must receive a reasonable salary to the extent that distributions or other payments are made to the officer-shareholder. Factors considered when determining when compensation was reasonable have included the following:

• Training and experience
• Duties and responsibilities
• Time and effort devoted to the business
• Dividend history
• Payments to non-shareholder employees
• Timing and manner of paying bonuses to key people
• What comparable businesses pay for similar services
• Compensation agreements
• The use of a formula to determine compensation

The S corporation should deduct as fringe benefits any health and accident insurance premiums paid for so-called “2% shareholders”. The amount of the premiums is taxable to these shareholders for income tax purposes, but not for FICA or FUTA.

Pursuant to IRS Notice 2008-1, a medical plan is “established by the S corporation” even if the plan is in the name of the shareholder as long as the S corporation pays the premium or reimburses the shareholder for the premium payment.

Box 14 on the Form W-2 may be used to provide the shareholder with the amount of the premiums paid, but the income should only be reported on Form W-2 and not on either Form 1099 or Schedule K-1. Contact Vision Payroll if you have any questions on Fact Sheet FS-2008-25.

David Neil, Commissioner of the Iowa Division of Labor Services (DLS), announced recently that the DLS has assessed fines of $9,988,200 and back wages of approximately $265,000 against Agriprocessors, Inc. The violations allegedly occurred during the period from January 1, 2006 to June 30, 2008. The fines were $339,700 for illegal deductions of “sales tax/miscellaneous”, $9,643,600 for illegal deductions for frocks, and $4,900 for shorting paychecks. A total of $264,786.45 was allegedly illegally deducted from employees resulting in the back wages claim. Agriprocessors, Inc. has thirty days to contest the penalties before they become final. Vision Payroll strongly recommends consulting with your labor law attorney to ensure all wage deductions are done properly.

According to the California Employment Development Department (EDD), employers in the counties of Santa Barbara, Los Angeles, Orange, Riverside, and San Bernardino directly affected by the damage resulting from the fire may request up to a 60-day extension of time from EDD to file their State payroll reports and/or deposit State payroll taxes without penalty or interest. The written request for extension must be received within 60 days from the original delinquent date of the payment or return to file/pay. Contact Vision Payroll if you’ve been affected and need to file the extension request.

This week’s question comes from Matt, a sales rep: Every week there’s a deduction for FICA on my paycheck. Two weeks ago, the deduction was lower than usual and last week there was no deduction at all. Why did my FICA tax deduction stop? Answer: The FICA (Federal Insurance Contributions Act) tax is related to Social Security’s Old-Age, Survivors, and Disability Insurance (OASDI) program, commonly called Social Security. Under this program, there is a cap on benefits based on a maximum earnings level, called the wage base. For 2008, the wage base is $102,000 and for 2009 it is scheduled to increase to $106,800. At retirement, using current law, benefit calculations are limited to earnings at or below the wage base. Therefore, no tax is withheld on earnings above the wage base, effectively limiting the maximum withholding to $6,324 in 2008. Contact Vision Payroll if you have any questions on the Social Security wage base.