Good news for businesses that are downsizing or already have: You may be due money back from the IRS. A district court has ruled that severance pay given to terminated workers is not subject to Social Security and Medicare taxes. Workers who had taxes deducted from their severance could also get that money back.
Don’t go spending your refund yet, however. The IRS is certain to appeal the ruling, so the fight on this issue is far from over. But you can protect your interests by filing what’s known as a protective refund claim, using IRS Form 843. The IRS will set these claims aside until after all appeals are decided. Claims can be filed by firms that paid severance to laid off workers within the three-year statute of limitations for tax returns. Acting quickly is especially important for businesses that paid severance back in 2006 because the statute-of-limitations window for them will run out next month, on April 15.
The case in question involves a retailer that closed all its stores and let its staff go, paying them severance. The retailer challenged IRS’ finding that Social Security and Medicare taxes were owed on the payments, and the U.S. District Court for the Western District of Michigan sided with the store. The court noted that the tax code specifically requires employers to treat severance paid to laid off workers as if it were wages for income tax withholding purposes. In the court’s view, this indicates that severance pay is not otherwise to be treated as a payment of wages, and thus is exempt from payroll tax. The court also disagreed with the IRS’ position that severance pay avoids the tax only if that pay is tied to receipt of unemployment benefits.
Sign up for Kiplinger’s Free E-Newsletters
Profit and prosper with the best of expert advice on investing, taxes, retirement, personal finance and more - straight to your e-mail.
Profit and prosper with the best of expert advice - straight to your e-mail.
If the IRS loses all appeals, employees also would get back their portion of Social Security and Medicare taxes. Employers and employees are both responsible for half of the tax that must be deducted from paychecks and remitted to the government. Employers can choose to file a protective refund claim just for their half, but they may opt instead to file for the employee’s half, too. In the latter case, they could file one of two ways: They could either remit the employee half to the worker before filing a claim and then keep the entire amount of the refund when and if it ultimately comes. Or they could get written consent from workers to file for their half and agree to remit that portion to workers after receiving the funds from IRS. Employees can file protective refund claims on their own for their half of the tax if they don’t want their former employer to file for them.
For companies considering downsizing in the future, watch the court proceedings carefully, but keep paying your taxes. Until the appeals process is exhausted, IRS still has the right to demand timely payment of Social Security and Medicare taxes on severance pay.
What will it take to win a FICA tax refund for your firm and your ex-employees?
-
What Is a Qualified Charitable Distribution (QCD)?Tax Breaks A QCD can lower your tax bill while meeting your charitable giving goals in retirement. Here’s how.
-
Embracing Generative AI for Financial SuccessGenerative AI has the potential to reshape how we approach learning about and managing our personal finances.
-
Europe Faces Economic and Political Headwinds Next YearThe Letter Challenges for Europe: Potential tariffs, high energy prices and more competition from China will weigh on the bloc in 2025.
-
Don't Sleep on Japan's Economic TransformationThe Letter After almost three lost decades, Japan — one of the world's biggest economies — is finally showing signs of life.
-
Kiplinger Outlook: Telecom Companies Brace for Tough TimesThe Letter The telecom industry is entering a new era that threatens profitability. But the coming Trump administration will make it easier for the major players to adjust.
-
Start-ups Trying to (Profitably) Solve the World’s Hardest ProblemsThe Letter More investors are interested in companies working on breakthrough science to tackle huge societal challenges. The field of deep tech has major tailwinds, too.
-
The Big Questions for AR’s FutureThe Letter As Meta shows off a flashy AR prototype, Microsoft quietly stops supporting its own AR headset. The two companies highlight the promise and peril of AR.
-
China's Economy Faces Darkening OutlookThe Letter What the slowdown in China means for U.S. businesses.
-
AI Start-ups Keep Scoring Huge SumsThe Kiplinger Letter Investors continue to make bigger bets on artificial intelligence start-ups, even for small teams with no revenue. Some backers think a startling tech breakthrough is near.
-
Should We Worry About the Slowing U.S. EconomyThe Letter With the labor market cooling off and financial markets turning jittery, just how healthy is the economy right now?
