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Thursday, December 19, 2013

Payments for accumulated leave credits to retiring employees


Payments for accumulated leave credits to retiring employees
Source: January 2014 edition of the FSLG Newsletter [Issue Number: 01-2014]

In its January 2014 edition of the FSLG Newsletter, the Internal Revenue Service states:

“Employees of local governments often have substantial accumulations of sick and vacation pay at the time they retire. In many cases, contractual agreements between the employer and employee call for a lump - sum payment of all accumulated sick and vacation pay, as of the date of retirement. Th e payments often leave local governments and employees with large, unexpected tax liabilities.

“Many times, local governments and employees negotiate a payment plan to lessen the tax burden for both parties.

“Generally, the agreements are executed to defer the tax liability into other years. However, under the constructive receipt rules, the full amount is generally taxable when the employee has the option to receive the full amount. An employee cannot decide when the tax will be paid.

“As we discussed in an article in our previous newsletter , the constructive receipt rules under Internal Revenue Code section 451 require that individuals recognize income as soon as they have effective  control over it; that is, when the funds are made available without substantial limitations. When an employee has an option to receive the income without restriction, it is recognized as income, regardless of whether the employee actually receives it at t hat time.

“Example:

“City Government A owes Employee Z $150,000 in accumulated sick and vacation pay as of the day of retirement. A month before Employee Z’s retirement date, City A reaches an agreement to pay Employee Z $50,000 a year. For  3 years. City A intends to treat each of the 3 payments as wages and subject the payment to Federal Income tax withholding, social security, and Medicare taxes in each year. This arrangement does not defer the tax due. City A may choose to make the payments over the 3 years, but because the entire $150,000 is available at retirement, it will be included in income, subject to income tax withholding and social security and Medicare taxes ,  as of the date the employee is entitled to the funds.
 
“There are two key considerations to remember when consider ing payments of accumulated sick and vacation pay. First, does the worker have a right to receive the money? The worker does not have to exercise that right; the simple existence of the right to receive the money is sufficient t o establish that a taxable event has occurred.

“Second, has the employee been given an option as to when to receive the funds? If the employee has an option, the n the  employee has constructively received the money. The right to receive the money or the opt ion to receive the money determines whether  the money has been constructively received. Once the money is deemed to have been constructively received, it is taxable at that point.”


For additional information and assistance, please discuss the liquidation of accrued leave credits with your attorney or tax advisor.
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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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