Actions on Payroll Taxes and Unemployment Benefits Promise Relief, Raise Questions

Payroll managers should be prepared to make withholding changes by Sept. 1

On Aug. 8, President Donald Trump signed a series of executive orders and memorandums intended to provide financial relief to employees and those who have lost their jobs due to the COVID-19 pandemic.

These declarations included a Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster, which directed the Treasury Department to defer collection of the employee portion of Social Security FICA taxes—part of required payroll tax withholding—from Sept. 1 through the end of 2020. The deferred taxes may have to be subsequently repaid unless Congress enacts legislation stating otherwise.

Trump cited his authority to postpone certain tax deadlines by reason of a presidentially declared disaster. Democrats, however, are expected to challenge that claim in court. Nevertheless, it is prudent for employers and payroll managers to stay aware of developments and prepare to move quickly if the directive and upcoming guidance are not blocked.

Payroll tax relief, as outlined in the president's directive, would require employers to take steps to ensure compliance, including working with their payroll administrators to adjust their systems by Sept. 1. Employers would also need to explain to employees that while their take-home pay may go up in the short term, they may be required to repay these deferred taxes at a future date.

Details on employer requirements, however, would depend on Treasury Department guidance, expected to be issued this week.

The other presidential actions authorized a weekly supplemental federal unemployment benefit of up to $400, reduced from the $600 weekly supplement that expired July 31; continued student loan payment relief; and called for measures to prevent residential evictions and foreclosures resulting from financial hardships due to COVID-19.

FICA Taxes

Social Security and Medicare payroll taxes are collected together as the Federal Insurance Contributions Act (FICA) tax. FICA tax rates are statutorily set and are not adjusted for inflation.

Social Security is financed by a 12.4 percent payroll tax on wages up to employees' taxable earnings cap—$137,700 for 2020—with half (6.2 percent) paid by workers and the other half paid by employers. There is no earnings cap on the Medicare portion of FICA, for which employers and employees separately pay a 1.45 percent wage tax. 

The COVID-19-related payroll tax relief only applies to the Social Security portion of FICA.

The Payroll Tax Directive

Section 2302 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, enacted in March and implemented through IRS Notice 2020-22 and a series of IRS FAQs, allows eligible employers to defer the deposit and payment of the employer's share of Social Security FICA taxes for the period beginning March 27, 2020, through Dec. 31, 2020. The deferral also applies to 50 percent of the equivalent taxes incurred by self-employed persons. The deferred payments must subsequently be paid to the Treasury Department, with half due by Dec. 31, 2021, and the other half by Dec. 31, 2022.

The CARES Act provision and related guidance did not apply to employees' share of the Social Security tax.

Under the new presidential directive:

• The secretary of the treasury is authorized to defer the withholding, deposit and payment to the Treasury of employees' portion of Social Security payroll taxes on applicable wages or compensation paid from Sept. 1, 2020, through Dec. 31, 2020. This provision does not apply to the Medicare portion of FICA taxes.
• The deferral is to be made available to employees whose earnings during any biweekly pay period is generally less than $4,000, calculated on a pretax basis, which would cover salaried employees earning $104,000 or less per year.
• Social Security taxes for these employees will be deferred without any penalties, interest, additional amount or addition to the tax.
• The secretary of the treasury is directed to issue guidance to implement the president's memorandum and to explore avenues, including legislation, to eliminate the obligation to pay the taxes deferred under the implementation of the memorandum.

Josh Blackman, a constitutional law professor at the South Texas College of Law Houston, blogged that HR lawyers will have until Sept. 1 "to figure out the details." Because the policy terminates on Dec. 31, 2020, "President Trump, or President Biden, will be forced to decide whether to continue this program," he wrote.

A Controversial Move

"By providing this tax relief, American families will have more cash on hand during these critical next few months," according to a White House statement.

Presumptive Democratic presidential nominee Joe Biden charged that Trump would try to make the cuts permanent if re-elected and said doing so would "undermine the entire financial footing of Social Security."

White House economic advisor Larry Kudlow said Trump's intent is not to permanently end employees' Social Security payroll taxes but added "we will take any steps possible to forgive this deferral," so employees will not be required to pay back the amounts deferred through Dec. 31, The Hill reported. However, doing so would require new legislation by Congress.

Prepare to Adjust Systems and Notify Employees

For now, HR payroll managers should:

• Discuss with their payroll administrators steps to adjust their payroll systems to exclude employees' share of FICA Social Security taxes beginning Sept. 1, pending the issuance of Treasury guidance.
• Prepare to notify employees that possibly less of their pay will be subject to payroll withholding, although the reduction in payroll taxes may have to be paid back in the future.
• Expect questions from employees who may be confused about current and future paycheck adjustments.

SHRM Senior Legal Editor Lisa Nagele-Piazza contributed to this article.