Vernoia, Enterline + Brewer, CPA LLC

Archive for September, 2014

FAQ: Can a participatory wellness program require a specific outcome?

No. Participatory wellness programs do not require a specific outcome in order for a participant to receive a reward.


Wellness programs have grown in popularity since passage of the Affordable Care Act but they have been around for some time. Individuals are motivated to participate in wellness programs to receive a reward, such as a discount or rebate of a premium or contribution, a waiver of all or part of cost-sharing, or an additional benefit.

The IRS issued proposed rules in 2006 and more guidance in 2013. The IRS has divided wellness programs into two categories: (1) programs that either do not require an individual to meet a standard related to a health factor to obtain a reward or that do not offer a reward at all; and (2) programs that require individuals to satisfy a standard related to a health factor to obtain a reward. The first category is commonly known as participatory wellness programs. The second category is known as health-contingent wellness programs.

Participatory wellness programs

exercise, Wellness Program, Vernoia Enterline Brewer, CPA

Participatory wellness programs encompass a wide range of activities. One of the most common type of participatory wellness program is a program that reimburses all or part of the cost of a gym membership. A program that encourages individuals to complete a health risk assessment regarding current health status, without any further action with regard to the health issues identified as part of the assessment is another example of a participatory wellness program.

All of these examples have a similar feature. They do not link a reward to certain outcomes, activities or certain results. An individual may take advantage of the gym membership and rarely go. An individual may attend a health risk assessment and elect not to take action on any findings from that assessment.

Participatory wellness programs must be available to all similarly-situated individuals. Participatory wellness programs also must comply with other federal laws.

Health contingent programs

In contrast to participatory programs, health-contingent programs are linked to a certain activity or result. Some threshold or standard must be attained. These types of programs would generally run afoul of laws prohibiting health plans from treating employees differently based on the status of their health. The Affordable Care Act and other laws have created some exceptions for activity-only programs and outcome-based programs.

A gym membership can be a health-contingent program if it requires an individual to participate for a certain number of sessions or obtain a specific health outcome. Tobacco cessation programs are a common example of outcome-based wellness programs. Participants must attain a specific health goal, such as ceasing to use tobacco products. A health screening that requires participants to take a health or fitness course is another example of a health-contingent program. For example, a cholesterol awareness program may require a certain cholesterol count in order for the participant to receive a reward.

Health contingent programs must satisfy five requirements: (1) Size of award; (2) Frequency of opportunity to take advantage of the program; (3) Reasonableness of design; (4) Uniform availability and reasonable alternatives; and (5) Notice to employees. After January 1, 2014, the maximum size of a health-contingent reward is 30 percent of the total cost of coverage (50 percent for health-contingent programs designed to prevent or reduce tobacco). Of significant importance is the requirement that any reward be available to all similarly-situated individuals. If, for example, an individual cannot meet the threshold or standard to receive a reward, there must be a reasonable alternative.

In addition to the Affordable Care Act, other federal laws, as well as state laws, impact wellness programs. Please contact our office if you have any questions about wellness programs under ACA guidelines.

How do I…satisfy the moving expense deduction criteria of start of work, distance and time?

In certain cases, moving expenses may be tax deductible by individuals. Three key criteria must be satisfied: the move must closely-related to the start of work; a distance test must be satisfied and a time test also must be met.

Closely-related to the start of work

moving write off, tax, cpa, vernoia enterline brewer, NJThe move must be closely-related to the start of work at a new location. Moving for non-work related reasons is not relevant. The closely-related requirement encompasses both a time threshold and a place threshold. The IRS has explained that closely-related in time generally means an individual can consider moving expenses incurred within one year from the date he or she first reported to work at the new location as closely related in time to the start of work. Closely-related in place generally means that the distance from the individual’s new home to the new job location is not more than the distance from his or her former home to the new job location.


An individual’s move satisfies the distance test if his or her new main location is at least 50 miles farther from his or her former home than the old main job location was from the former home. Note that the distance test takes into account only the location of the individual’s former home. An individual’s main job location is the location where he or she spends most of his or her working hours. Individuals may have more than one job. In that case, the IRS has explained that an individual’s main job location depends on the facts in each case. Among the factors to take into account are the total time the individual spends at each place; the amount of work performed at each place and the amount of wages earned at each place. If an individual previously had no employment, or had experienced a period of unemployment, the new job location must be at least 50 miles from the individual’s old home.


Time for purposes of the moving deduction looks at an individual’s hours of work and where that work is performed. An individual who is a wage earner (employed by another) must work full-time for at least 39 weeks during the first 12 months immediately following his or her arrival in the general area of the new job location. Self-employed individuals must work full time for at least 39 weeks during the first 12 months and for a total of at least 78 weeks during the first 24 months immediately following their arrival in the general area of the new work location.

Special rules apply to members of the U.S. Armed Forces as well as employees who are seasonal workers, individuals who have temporary absences from work, and others.

If you have any questions about the moving deduction, please contact our office.

Partnerships’ exposure to net investment income tax not always clear cut

The net investment income (NII) tax under Code Sec. 1411 is imposed on income from investments, certain sales of property, and income from passive activities. NII includes net gains from the sale of property, unless the property is held in a non-passive trade or business. If the property sold is a non-passive interest in a partnership or S corporation, gain from the sale of the interest is NII only to the extent that income from a deemed sale of the entity’s property would be NII. The IRS totally rewrote the regulations for the disposition of interests in a partnership or S corporation, and reissued them in the 2013 proposed regulations. Certain issues nevertheless remain as the NII enters its second tax year, having first been effective in 2013.

NII basics

There are three general categories of NII. In addition to gross income from portfolio items such as interest, rents and dividends that are not earned in a trade or business (Category 1), NII includes gross income from a trade or business that is a passive activity, as determined under Code Sec. 469 (Category 2). Income from passive activities can include income from pass-through entities (partnerships, S corporations, and trusts and estates).

The NII tax of 3.8 percent is imposed on the lesser of the total NII net income from the three categories, or the amount by which modified adjusted gross income exceeds the applicable threshold amount ($200,000 for single taxpayers; $250,000 for joint taxpayers; $125,000 for married filing separately).

Operative regulations

The IRS issued proposed regulations in 2012. On December 2, 2013, the IRS issued final regulations (TD 9644). At the same time, it issued new proposed regulations (NPRM REG-130843-13), which are still pending. Both the final and the 2013 proposed regulations apply to tax years beginning on or after January 1, 2014 and can be applied to 2013 (in part or in whole).

An important feature of the statute and regulations is that they rely on the definition of relevant terms in the income tax provisions (Part 1 of the Tax Code). This is demonstrated by the proposed regs on partnership payments under Code Secs. 701–754. Furthermore, this is relevant because the definition of NII often depends on whether the activity generating the income is a passive activity as determined under Code Sec. 469, the passive activity loss (PAL) rules. However, in some cases the government concluded that the Code Sec. 469 rules did not provide sufficient guidance for the NII tax, such as the treatment of real estate professionals

Partnership payments

Criticism of the initial 2012 proposed regulations focused in part on the lack of clear guidance on the treatment of distributions and payments by a partnership to a partner. This included clarification of the application of NII to key partnership provisions within the Internal Revenue Code: Code Sec. 731 distributions, Code Sec. 707(c) guaranteed payments and Code Sec. 736 payments to retiring or deceased partners, in liquidation of their interests. In response, the IRS discussed them in the new proposed rules issued in 2013…but some questions still remain.

Gains from a partnership distribution to a partner are treated under Code Sec. 731 as gain from a sale or exchange of a partnership interest. The proposed regulations treat these distributions as NII under category 3 (sale or exchange of property). However, other categories of payments are not treated as being from the sale or exchange of a partnership interest.

Code Sec. 707(c) payments, or guaranteed payments, are a partnership payment to a current partner for services or the use of capital that do not depend on partnership income. The 2013 proposed regulations exclude payments for services from NII, whether or not subject to self-employment tax, because they are compensation for services. However, they treat guaranteed payments for the use of capital as a substitute for interest and as category 1 NII. This treatment is consistent with the Code Sec. 469 rules that treat payments for capital as portfolio income.

Code Sec. 736 payments

The new proposed regulations clarify how the treatment of payments under Code Sec. 736 determines their treatment under Code Sec. 1411. Under Code Sec. 736(b), a payment for a retiring partner’s share of partnership property is treated in the same manner as a distribution to an existing partner under Code Sec. 731 and as category 3 NII. Payments over multiple years are treated in the same manner and are not retested annually. This is similar to the Code Sec. 469 treatment. However, if the retiring partner materially participates in the partnership trade or business, then the portion of the payment treated as NII is reduced, based on the rules for determining NII on the disposition of a pass-through interest. It does not matter whether the payments are ordinary income or capital gain.

A liquidating distribution under Code Sec. 736(a)(1) can be for services, capital, or certain unrealized receivables. Payments for services that are determined with respect to income are treated as a distributive share. Otherwise, the payment is treated as a guaranteed payment under Code Sec. 736(a)(2). In this case, the treatment follows the treatment of guaranteed payments under Code Sec. 707(c).

The treatment under Code Sec. 1411 depends on the components of the distribution under the income tax rules. Income from a trade or business (other than trading in financial instruments) will be excluded from NII, while income from working capital is treated as interest and is NII.


The 2013 proposed regulations are “reliance” regulations, which means that taxpayers may either use them to compute NII tax exposure or rely on another “reasonable interpretation” of the relevant Internal Revenue Code provisions. Experts nevertheless anticipate that still further changes will be made when the regulations reach “final” status, especially in the area of how partnership tax rules interact with the NII tax. Whether they will be finalized before the 2014 tax year ends for planning purposes remains speculative. In the meantime, partnerships and their partners must work with current distribution rules in efforts to minimize NII tax exposure when possible. Please contact our offices if you have any concerns over how these rules might affect your overall 2014 tax liability.

IRS Commissioner predicts bumpy 2015 filing season due to budget cuts

As the 2015 filing season approaches, IRS Commissioner John Koskinen is bracing taxpayers for more reductions in customer service unless the agency receives more funding. According to Koskinen, the IRS is facing its biggest challenge in recent years. Koskinen, who spoke at the annual conference of the National Society of Accountants in August, also predicted that taxpayers will have to wait until after the November elections to learn the fate of many popular but expired tax incentives.

Budget pressures

IRS tax season burden, Vernoia Enterline, BrewerThe IRS has experienced budgetary pressures since 2010. The Budget Control Act of 2011 (BCA) imposed across-the-board spending cuts on many federal agencies, including the IRS. Some funding was restored last year. Looking ahead, the House has voted to cut the IRS’s budget by $341 million for Fiscal Year (FY) 2015. The Senate has proposed to increase the IRS’s budget by $240 million. Even with the proposed increase, IRS officials have said that the agency’s budget would still be seven percent below funding levels for FY 2010.

The funding cuts have drawn criticism from senior IRS officials. “Funding reductions have significantly hampered the IRS’s ability to carry out its mission,” National Taxpayer Advocate Nina Olson told Congress. Olson warned that “underfunding of the IRS poses one of the greatest long-term risks to tax administration today.”

Koskinen echoed Olson’s concerns. “Congress is starving our revenue-generating operation. If voluntary compliance with the tax code drops by 1 percent, it costs the U.S. government $30 billion per year,” he explained. “The IRS annual budget is only $11 billion per year.

Customer service

For many taxpayers, the most visible impact of the budget cuts has been reductions in customer service. Koskinen said that the IRS has cut 5,200 call center employees because of lack of funding. Wait times to speak with the IRS will increase, he predicted. During the 2014 filing season, the IRS’s level of customer service was around 72 percent. The level of customer service for the 2015 filing season could fall to as low as 50 percent without adequate funding, Koskinen cautioned.

Koskinen acknowledged that the funding cuts have fueled efficiencies in the agency’s operations. The agency has reduced hiring, offered buyouts to long-time employees, and cut travel and training costs. “We are becoming more efficient but there is a limit,” he said. “Eventually the effects will show up. We are no longer going to pretend that cutting funding makes no difference.”

Tax extenders

Unless extended, a host of expired tax incentives will be unavailable to taxpayers when they file their 2014 returns. These include widely-used incentives, such as the state and local sales tax deduction, the higher education tuition deduction, and transit benefits parity. Businesses also would be impacted, with failure to renew popular incentives, including the research tax credit and the Work Opportunity Tax Credit.

Legislation to extend many of these incentives will likely not be passed by Congress until after the November elections, Koskinen predicted. “Congress needs to understand that the later these are passed and the more complicated they are, the more challenging it is for taxpayers to file accurate returns on time.” Koskinen added that the IRS will be challenged to reprogram its return processing systems for renewal of the tax extenders. As a result, the start of the 2015 filing season could be delayed, he said.

Identity theft

Koskinen lauded the agency’s work to curb tax-related indentity theft. This initiative is a high-profile one. The IRS has worked with other federal agencies and state and local governments to discover and prosecute identity thieves. The IRS has also upgraded its return processing systems to uncover fraudulent returns and has assigned special identity protection numbers to victims of identity theft. “We rejected 5.7 million suspicious returns last year that may have been tied to identity theft,” he said.

To learn more information or for updates, please contact our offices.

Employers get first look at health insurance information reporting

Since passage of the Affordable Care Act, several key requirements for employers have been delayed, including reporting of health coverage offered to employees, known as Code Sec. 6056 reporting. As 2015 nears, and the prospects of further delay appear unlikely, employers and the IRS are preparing for the filing of these new information returns.

Three related provisions

Three provisions of the Affordable Care Act are closely related: the employer mandate for applicable large employers (ALEs), the Code Sec. 36B premium assistance tax credit and Code Sec. 6056 reporting. To administer the employer mandate and the Code Sec. 36 credit, the IRS must receive information from ALEs, such as the type of health coverage offered, if any, by the ALE, the number of employees, and the cost of coverage.

Who must report?

Employer reporting medicalNot all employers must report under Code Sec. 6056. The most important exception is for employers with fewer than 50 full-time employees, including full-time equivalent employees. These smaller employers are exempt—at all times—from Code Sec. 6056 reporting and the employer mandate.

For 2015, there is also a temporary exemption for some ALEs from the employer mandate only. ALEs are employers that employ on average at least 50 full-time employees, including full-time equivalents but fewer than 100 full-time employees including full-time equivalents. However, mid-size employers must file Code Sec. 6056 information returns for 2015. All other ALEs are subject to the employer mandate for 2015 as well as Code Sec. 6056.

What must be reported?

The IRS has posted draft forms for Code Sec. 6056 reporting on its website: Form 1094-C Transmittal of Employer-Provided Health Insurance Offer and Coverage Information Returns and Form 1095-C, Employer-Provided Health Insurance Offer and Coverage. Draft Instructions for these forms are expected to be released in the near future.

ALEs generally must report:

  • The employer’s name, address, and employer identification number;
  • The calendar year for which information is being reported;
  • A certification as to whether the employer offered to its full-time employees and their dependents the opportunity to enroll in minimum essential coverage under an employer-sponsored plan;
  • The number, address and Social Security/taxpayer identification number of all full-time employees;
  • The number of full-time employees eligible for coverage under the employer’s plan; and
  • The employee’s share of the lowest cost monthly premium for self-only coverage providing minimum value offered to that full-time employee.

Under IRS regulations, Code Sec. 6056 reporting is optional for 2014. Reporting for 2015 is required. Information returns must be filed no later than March 1, 2016 (February 28, 2016, being a Sunday), or March 31, 2016, if filed electronically.

Simplified method

The IRS has provided ALEs with simplified methods of reporting. Employers that provide a “qualifying offer” to any of their full-time employees may be eligible as are employers that offer coverage to a certain percentage of employees. For more details about the simplified method, please contact our office.

Employers that self-insure

The Affordable Care Act also requires every health insurance issuer, sponsor of a self-insured health plan, government agency that administers government-sponsored health insurance programs, and other entities that provide minimum essential coverage to file information returns. This is known as “Code Sec. 6055 reporting.” The IRS has posted draft versions of Form 1094-B, Transmittal of Health Coverage Information Returns, and Form 1095-B, Health Coverage on its website.

Employers that self-insure have a streamlined way to report for purposes of Code Sec. 6055 reporting and Code Sec. 6056 reporting. The top half of Form 1095-C includes information needed for Code Sec. 6056 reporting; the bottom half includes information needed for Code Sec. 6055 reporting.

If you have any questions about Code Sec. 6056 reporting, please contact our office.