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The Federal Government has declared an increase in the 2022 Federal Estate Tax exclusion amount for a single individual from the $11.7 million amount in 2021 to $12.06 million, which also makes an increase in the exclusion amount for a married couple from $23.4 million in 2021 to $24.12 million for 2022. New York has also declared that the new estate tax exclusion amount per person is increasing from the 2021 amount of $5.93 million to $6,110,000 for 2022. The Federal Government has also increased the gift tax exclusion amount from the previous 2021 amount of $15,000 to the 2022 amount of $16,000.
If you have any questions, please feel free to reach out to your usual firm contact or contact Meghan Reap at email@example.com.
Purpose. Earlier this year, legislation was passed and signed into law in New York to provide many NY taxpayers with a strategy to “work around” the provision under the federal tax law that limits individual taxpayers to a $10,000 deduction for state and local income and real estate taxes paid (the “SALT” limitation).
Example. Here’s an example showing how much additional federal taxes New Yorkers pay by application of the SALT limitation:
Assume Charlie is a partner in a NY partnership and that his share of the partnership’s 2021 net income is $400,000, which is also his adjusted gross income on his federal tax return (the amount appearing at the bottom of page 1 of the Form 1040).
New York’s average tax rate on taxable income of $400,000 is about 6.4%. Therefore, Charlie’s New York income tax liability would be about $25,600. If we assume his real estate taxes exceed $10,000, then none of his NY income taxes can be deducted on his federal return. Had they been deductible, Charlie would have saved between $8,200 and $9,000 in taxes (depending on whether he filed as an individual or jointly with his spouse).
The “Work-Around”. The new legislation enables the individual owners of “pass-through entities” – partnerships, LLCs and S corporations – to effectively regain the tax benefit by having the pass-through entity (which is not subject to the SALT limitation) opt into a new “pass-through entity tax” or PTET. This approach shifts the New York income tax liability to the pass-through entity, which pays the PTET (the tax brackets for this tax are similar to individual tax brackets). The law then grants a tax credit to each partner, member or shareholder (to be applied on his or her individual tax return) for his or her share of the taxes paid by the entity so that there is no “double tax” to both the entity and the individual owner.
The entity will deduct on its federal return the amount of NY taxes it paid, thereby reducing the amount of each individual owner’s share of the entity’s taxable income and in effect regaining for them the lost deduction under the SALT limitation.
In order to prevent the individual from in effect gaining a deduction on his or her NY return for New York taxes paid by the entity, the individual will have to add back into taxable income his or her share of the PTET paid by the entity.
Note the following:
We trust this will help you and your accountants in addressing the SALT limitation that has affected so many New Yorkers. After you have had a chance to review this, please do not hesitate to contact us.
On May 7, 2021, Governor Andrew Cuomo signed the “New York HERO Act” (the “Act”) into law. Under the Act, the state aims to prevent occupational exposure to airborne infectious disease, including COVID-19. The Act requires employers to develop workplace health safety plans in order to prevent the spread of airborne communicable illnesses, and to allow employees to establish and administer a joint labor-management workplace safety committee.
In a memorandum attached to the signed bill, Governor Cuomo requested “technical changes” that will likely delay the implementation of the law. Specifically, Governor Cuomo has requested that the legislature provide employers with an opportunity to cure any failure to comply with the law, provide more detailed instruction on the development and implementation of workplace standards, and limit litigation to circumstances where employers are acting in bad faith and refuse to cure deficiencies. As written, the Act requires employers to have a health and safety plan in place thirty (30) days following the effective date of the law, and to allow employees to establish a joint labor-management workplace safety committee within six (6) months. However, it is likely that the dates will be delayed following the legislative edits. Below is a summary of what we know so far about the obligations the new law will place on employers.
The New York State Department of Labor (“DOL”), in consultation with the New York State Department of Health (“DOH”), has been tasked to prepare a model airborne infectious disease plan (“Employer Safety Plan”), and establish minimum requirements for preventing exposure to airborne infectious diseases. Under the law, the DOL must establish minimum safety requirements for worksites, differentiated by industry. Once the DOL has established a model Employer Safety Plan, employers will have the choice to adopt the model or to create an Employer Safety Plan on their own with the same minimum standards express by the DOL in the model.
The Act provides some requirements that must be included in the model, but leaves it to the DOL to include any other matters the DOL Commissioner finds relevant. Similar to the protocols issued by other governmental agencies in the last year – the DOL is required to include procedures and methods for the following:
Importantly, where an employer opts to create their own Employer Safety Plan, the Act requires “meaningful participation of employees” (or of the appropriate collective bargaining representative, if applicable). Further, all employees must be provided with a copy of the Employer Safety Plan on the effective date of the act, or upon hiring, whichever is later. The Employer Safety Plan must also be included in employee documents, and posted “in a visible prominent location” in the worksite. Unlike the emergency, temporary, COVID-19 regulations passed through various gubernatorial orders in the spring and fall of 2020, or the recommendations and best practices that continue to be released by federal employment and protective agencies, the Act is now a part of New York law.
Finally, under the Act employers are prohibited from retaliating against employees for exercising their rights, reporting violations, or refusing to work after a violation of the Employer Safety Plan. The DOL is given the authority to issue fines to employers for violating the Act. As discussed above, Governor Cuomo signed the Act after the legislature agreed to revisions including allowing a cure period before an employer may be subject to litigation. It is unclear if the same protections will be built in for civil penalties.
The Act also requires employers to “permit employees to establish and administer a joint labor-management workplace safety committee.” The legislative intent appears to have been to target larger corporations. Nonetheless, employers of any size are obligated to meet this requirement. It is unclear if the legislative modifications will include clarification on the process required for employees to request the formation of such committee. If such committee is formed, however, it is authorized to:
Further, employers are required to allow employees to attend: 1) training on the function of worker safety committees, 2) an introduction to occupational safety and health, and 3) committee meetings on a quarterly basis. Employees are entitled to their usual compensation for the aforementioned activities. Employers may not retaliate against employees for participating in establishing a workplace safety committee.
Although the Act is awaiting revision, and guidance will certainly be forthcoming from the DOL regarding employer obligations, it is never too early to begin assessing corporate compliance. For those New York businesses that established return to work plans in the spring and summer of 2020, the Employer Safety Plan may very well be a revised version of similar plans already in place. However, for entities and organizations that are not used to employee involvement at the level that will be required by the employee safety committee (if formed), the Act may require some adjusting in the coming months. Regular examination of corporate compliance with local, state, and federal laws and regulations should be a part of your corporate planning. For assistance with compliance, or to discuss other laws and regulations that may impact your business, reach out to your usual firm contact, or contact Melissa Green (firstname.lastname@example.org).
In terms of dollar value, individual retirement accounts (IRAs) constitute one of the greatest and most pervasive wealth accumulation vehicles in the country, holding trillions of dollars for millions of Americans. No wonder. They enjoy tax-deferred build-up during one’s working years and continued freedom from income taxes even in retirement. They are easily passed on to surviving spouses and family members without entanglement in the owner’s estate. The required minimum distribution (RMD) rules have allowed accounts to grow over decades for the benefit of surviving spouses and second and third generations. Finally, state laws have protected these accounts from creditors of the owners, spouses and beneficiaries both inside and outside of bankruptcy.
Naming a spouse and/or children or grandchildren as a beneficiary oftentimes resulted in complete payout of the account not occurring for 40 years of more. The compounding effect within a tax-deferred account has resulted in enormous accumulations over that time. Add to that the creditor protection afforded by state law, and you have in an IRA a super-loaded trust account that is controlled not by a trustee but by the named beneficiary, a perfect scenario for many families.
However, two recent changes have greatly reduced the IRA’s value as an asset protection and wealth-developing device.
First, Congressional legislation in late 2019 put an end to the multiple-decade IRA payout strategy for second and third generations. While RMDs to the IRA owner and spouse are still based on their life expectancies, once the account becomes payable to a non-spouse beneficiary (with limited exceptions), the account must be fully paid out by the 10th year thereafter. No distributions need to be made before the 10-year period expires, but by the end of that year, full distribution must be made.
Second, a 2019 federal district court ruling from the Northern District of New York (Todd v. Endurance American Insurance Company, 596 B.R. 79) has thrown a curve at traditional IRA planning. In that ruling, the court held that New York’s creditor protection statute for retirement accounts such as IRAs (NY CPLR §5205(c)(2)) does not exempt an IRA from the claims of creditors in a bankruptcy estate of a non-spouse beneficiary who inherited the IRA, nor is the IRA excluded from the bankruptcy estate. The Court listed various characteristics of an inherited IRA (including that the funds can be drawn without penalty at any time, and that no additional funds can be added to the account by the beneficiary) which caused it to view an inherited IRA not as a retirement account for the beneficiary, but merely an inherited asset that, like most other inherited assets, should be available to the beneficiary’s creditors.
So, for New York residents, in the course of just one year, two of the major advantages of an IRA (long-term wealth accumulation and permanent creditor protection) have been greatly diluted.
Nevertheless, careful planning may restore those benefits to a very large degree. For example, instead of naming children and grandchildren as outright beneficiaries, an IRA owner can achieve much of the desired wealth generation by naming a charitable remainder trust (CRT) as the IRA beneficiary. The estate tax charitable deduction that one receives from the funding of a CRT is secondary, if not merely an afterthought. Rather, by naming a CRT as beneficiary, the children and grandchildren can receive an income interest that can stretch for decades.
Moreover, naming a CRT (indeed, any irrevocable trust that contains valid spendthrift provisions) as beneficiary returns the IRA’s creditor protection that was taken away under the Todd case.
The lesson here is to review your IRA beneficiary designations with your advisors and make appropriate changes if the recent changes in the law, as discussed above, now interfere with your objectives.
We’d be happy to review with you your objectives in your estate plan, including the important considerations that IRAs deserve.
In March of this year, all non-essential businesses in New York State were closed in an effort to slow the spread of coronavirus disease 2019 (“COVID-19”). New York State has now begun to reopen in phases under the New York Forward Plan (“NY Forward”), and the State has placed requirements and obligations on businesses that are resuming in-person operations. All regions in New York have now begun reopening. Five regions (North Country, Finger Lakes, Central NY, Mohawk Valley, and Southern Tier) entered Phase Three on or about June 12, 2020.
In order for a business to resume (or for essential businesses, continue) in-person services, the State has placed specific obligations on employers. Under NY Forward employers must: 1) read and affirm the guidelines specific to their industry, and 2) prepare a written Business Safety Plan. Failure to comply with the State’s requirements may expose business owners to liability, fines, or investigations. Business owners should familiarize themselves with the NY Forward guidelines specific to their industry, and understand the obligations imposed on them, in order to avoid adverse effects and keep employees and visitors safe.
The State has released guidelines for industries in Phases 1 through 3, and “State Wide Guidelines” for miscellaneous industries. Guidelines for Phase 4 industries, which will include Arts/Entertainment/Recreation and Education, have not yet been released. Thus far, the State has released guidelines for the following industries:
Phase 1 – Construction; Agriculture, Forestry, Fishing, and Hunting; Retail Trade; Manufacturing; Wholesale Trade; and Higher Education Research
Phase 2 – Offices; Real Estate; Essential and Phase 2 In-Store Retail; Vehicle Sales, Leases, and Rentals; Retail Rental, Repair, and Cleaning; Commercial Building Management; Hair Salons and Barbershops; Outdoor and Take-Out/Delivery Food Services
Phase 3 – Food Services (In-Person); Personal Care
State Wide Guidelines – Child Care and Day Camps; Lake and Ocean Beaches; Religious and Funeral Services; Racing Activities; Dentistry; Auto Racing; Professional Sports Training Facilities; and Public Transportation
Business owners should read the State guidelines for their industry, and are required to affirm that they have read them. The affirmation can be found at https://forms.ny.gov/s3/ny-forward-affirmation. The guidelines vary by industry, and include requirements, guidance, and suggestions for business owners. A common requirement across industries is the requirement to screen employees and, in some instances visitors/clients, for symptoms of COVID-19. The “Office” industry guidance specifically requires that business owners screen employees daily to determine if they are or have experienced symptoms, have been tested and/or diagnosed, and/or have been in close contact with someone who has experienced symptoms or been diagnosed. Business owners may also elect to conduct temperature checks on employees and/or visitors/clients/customers, but may not keep health data (i.e., the result of temperature screenings). Employers should also encourage employees to notify the employer right away if the employee begins experiencing symptoms. Further, employers should be prepared to isolate employees who begin experiencing symptoms and cannot be immediately removed from the work place.
The NY Forward guidelines for all industries require that employers notify the local health department if any employee tests positive for COVID-19, and work with the health department in contact tracing efforts. To that end, the State further recommends that employers track employee contacts with other employees, customers, visitors, etc., in order to better assist in contact tracing efforts. The NY Forward guidelines also require, among other things, that employers to maintain a social distance of at least 6 ft. between all people, require masks at all times when social distancing is not possible, decrease in person interactions wherever possible, minimize or eliminate shared equipment and items, and clean high touch surfaces frequently.
Ensuring a proper supply of personal protective equipment (PPE), is imperative to employer operations. Employers must provide employees (and customers or clients if necessary) with masks and proper hand sanitizing materials. In certain industries and for certain tasks the employer may also be required to provide gloves and other PPE such as a face shield. Under current State Orders businesses have a right to refuse service to customers who refuse to wear a mask.
Two federal agencies, the US Centers for Disease Control (CDC) and Occupational Safety and Health Administration (OSHA), have also released recommendations for reopening and operating businesses. Employers may mitigate potential liability by following the guidance of these federal agencies. Further, the NY Forward guidelines largely incorporate, and in some instances adopt, the CDC and OSHA guidelines. Unlike CDC and OSHA recommendations however, many of the State guidelines under NY Forward are required. Businesses who fail to comply with the NY Forward guidelines may be subject to fines, investigations, and potential civil liability. Local municipalities will reportedly be responsible for enforcing the guidelines, and the State has encouraged employees to report violations to the Department of Labor.
Additionally, businesses are required to prepare a Business Safety Plan. The State’s Business Safety Plan template can be found at: https://ocfs.ny.gov/main/news/2020/COVID-2020Jun08-Guidance-Reopening-Plan-Template.pdf. Alternatively, business owners may elect to prepare their own Business Safety Plan, using the State template for guidance. The Safety Plan need not be submitted to a State agency directly, but should be conspicuously posted in the workplace, and made available upon request (i.e., during an investigation). The Business Safety Plan template includes, but is not limited to, the following provisions:
People – ensure appropriate social distancing and minimize in-person capacity to the extent possible;
Places – ensure adequate supplies of and proper use of PPE and hygiene materials (i.e., hand washing or hand sanitizer stations), and make plans for communication (i.e., maintain a log of persons who have had close contact in the workplace for contact tracing purposes); and
Processes – ensure proper screening of employees, and a plan for contact tracing assistance and cleaning/disinfecting in the event someone who has access to the workplace tests positive.
As with much of the guidance regarding COVID-19, this is a rapidly evolving area of law and policy. This article is intended to be for informational and discussion purposes only and is not to be construed as legal advice or as a legal opinion on which certain actions should or should not be taken. If you have specific questions regarding reopening, compliance with State guidelines, or preparing a Business Safety Plan, we would be happy to assist you. For further information regarding your particular circumstances, or if you need legal assistance, reach out to your normal contact at the firm, or contact Melissa Green (email@example.com).
On Friday, June 5, 2020, the President signed into law H.R. 7010 – The Paycheck Protection Program Flexibility Act (PPPFA). The PPPFA eases some of the requirements of the Paycheck Protection Program (PPA), which was included in the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) passed earlier this year. The PPPFA lowers the threshold for spending required on payroll expenses, increases the covered loan period, provides exceptions for businesses who are unable to rehire employees to qualify for full loan forgiveness, and sets a minimum term of 5 years for new borrowers. The changes to the PPP are summarized below.
|· Covered Period – February 15, 2020 through June 30, 2020||· Covered Period – February 15, 2020 through December 31, 2020|
|· Qualified expenses – must spend 75% on payroll, 25% on other qualified expenses, or be subject to a decrease in loan forgiveness||· Qualified expenses – must spend at least 60% on payroll, 40% on other expenses, or no loan forgiveness|
|· Term – maximum of 10 years||· Term – (for new borrowers) minimum of 5 years|
|· Payroll Tax Delay – deferment of social security taxes available only until loan is forgiven||· Payroll Tax Delay – deferment of social security taxes through December 31, 2020 (even if loan is forgiven before that date)|
|· Maintenance of Employment Levels – must maintain full-time employment and salary levels, or risk proportionate reduction of forgiveness||· Maintenance of Employment Level – creates hardship exceptions if there is an inability to rehire, hire, or return to pre-COVID-19 employment levels|
|· Payment Deferral Period – payments of principal/interest delayed for 6 months||· Payment Deferral Period – payments deferred until lender receives forgiveness funds from the government, or, if no forgiveness application is submitted, deferred for 10 months following the end of the Covered Period|
Under the CARES Act the Covered Period for a PPP loan begins on the date of origination, and ends 8 weeks later. This meant businesses had just 8 weeks to spend all of the loan funds and qualify for forgiveness. Under the PPPFA the Covered Period spans 24 weeks after the origination date, or through December 31, 2020 (whichever is earlier). There is nothing in the PPPFA which prevents a borrower from applying for forgiveness if they meet the requirements (i.e., spend the loan funds) sooner than 24 weeks.
The CARES Act required borrowers to spend 75% of loan funds on payroll expenses, and 25% on other qualified expenses in order to qualify for loan forgiveness. Borrowers who did not meet these requirements were subject to a reduction of the loan forgiveness amount. Under the PPPFA borrowers must spend 60% on payroll expenses and 40% on other qualified expenses, or the loan will not be forgiven. It has been pointed out that this new “cliff” scenario may cause hardship to borrowers, and Congress has indicated that the U.S. Small Business Association (SBA) will release additional guidelines that specify the proportional reduction of loan forgiveness still applies. However, the law as written does not allow for a proportional reduction.
The PPPFA establishes a minimum maturity time period of 5 years for new borrowers. Under the CARES Act the maximum maturity time period is 10 years. While the new 5 year minimum does not automatically apply to those who have already received PPP funds, the PPPFA specifies that borrowers and lenders may renegotiate the maturity date in light of the PPPFA.
PPP borrowers are eligible to defer payment of social security taxes for 2020, and repay such taxes at the end of 2021 and 2022 (paying 50% each year). Under the CARES Act the deferment period ends when the borrower’s loan is forgiven. The PPPFA extends the deferral period through December 31, 2020, for all borrowers, even if the loan is forgiven before that date.
Borrowers were required to maintain pre-COVID-19 employment and salary levels in order to qualify for forgiveness under the CARES Act. Specifically, the CARES Act required that any employees who were terminated after February 15, 2020, be rehired such that the borrower retained employment levels through the Covered Period. Later guidance on the CARES Act allowed employers to instead hire similarly situated individuals for the same position if they were unable to rehire certain employees. Similar rules are in place for the maintenance of employee pay rates. The PPPFA creates exceptions to the employment maintenance and salary requirement if the borrower can provide evidence that: 1) the borrower is unable to rehire individuals who were employees, and the borrower is unable to hire similarly qualified individuals; or 2) the borrower is unable to return to the same level of business activity due to compliance with requirements by various government agencies (i.e., Health and Human Services, Centers for Disease Control, and Occupational Safety and Health Administration) from March 1, 2020, through December 31, 2020, regarding standards for sanitation, social distancing, or any other worker or customer safety requirement related to COVID-19. This is great news for businesses such as restaurants and retailers who are unable to rehire at previous staff levels due to regulations that resulted in a decrease to the business’s customer base.
Finally, the PPPFA extends the payment deferral period. Under the CARES Act borrowers’ payments were deferred for 6 months. The PPPFA requires that payments be deferred until the lender receives forgiveness funds from the government. In the event that the borrower does not apply for loan forgiveness, then the deferral period is 10 months following the end of the Covered Period. As the government is unlikely to quickly process forgiveness applications and disburse funds to lenders, experts agree that most deferral periods will likely extend well beyond 6 months.
As discussed, the SBA is expected to release additional guidance regarding the PPP that is intended to provide clarity on the PPPFA. Businesses should continue to monitor the situation as legislation and agency guidance are rapidly evolving. This article is intended to be for informational and discussion purposes only and is not to be construed as legal advice or as a legal opinion on which certain actions should or should not be taken. If you have specific questions regarding a PPP loan, application, or forgiveness, we would be happy to assist you. For further information regarding your particular circumstances, or if you need legal assistance, reach out to your normal contact at the firm, or contact Melissa Green (firstname.lastname@example.org).
On April 3, 2020, Governor Cuomo signed New York’s Fiscal Year 2021 Budget into law. The budget contains provisions that will impact businesses, including mandated paid sick leave. The law also provides the Governor and State Budget Director with the authority to revise the state’s fiscal plan throughout the coming fiscal year, as much remains uncertain in this volatile economic time. Notable tax provisions contained in the budget include: a new category for the Excelsior Tax Credit Program, prolonging the Hire-A-Vet Tax Credit Program, and a departure from recently enacted federal tax benefits. The budget also includes provisions which impact individual tax payers.
Paid Sick Leave
New York employers will soon be required to provide sick leave to employees. The temporary sick leave policies enacted in response to the COVID-19 pandemic were modified and made permanent. Employees begin accruing sick leave (at a rate of one hour per thirty hours worked) on September 30, 2020, but employers are not required to begin paying leave until January 1, 2021. Employer requirements are based on size and net income as follows:
|Less than 4 employees with net income less than $1 million||40 hours of unpaid sick leave|
|Less than 4 employees with net income greater than $1 million;|
or greater than 4 but less than 100 Employees
|40 hours of paid sick leave|
|100 or more employees||56 hours of paid sick leave|
Employers should refresh their policies and procedures to determine how they will comply with the law. Where an employer is already providing paid sick leave that meets the requirements, such policies may and should continue. Under the new law, employers are not required to pay unused sick leave upon termination of employment. However, employers should remember that New York State common law requires payment of sick leave upon termination, if it is the company’s existing policy to do so. Employers should notify employees of changes to sick leave policies, including how and when employees will accrue leave (annually or an on hourly basis) and pay upon termination. Employee policies regarding notice of sick leave and the minimum hours used should also be reviewed to ensure compliance with the new law.
Business Tax Credits
The Excelsior Tax Credit and Hire-A-Vet Programs were extended in the budget. Under the new category provided for in the Excelsior Tax Credit Program, employers with qualified “Green Projects” may be entitled to: a refundable Jobs Credit of 7.5% for new jobs, 5% for new capital investments, and 8% for qualifying research and development expenses. The Hire-A-Vet Tax Credit, which provides credit to employers equal to 10% of wages paid to a qualified veteran (up to $5,000) and 15% of wages paid to a disabled veteran (up to $15,000), was extended to include both the 2020 and 2021 hiring periods.
Recent federal legislation contained in the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, included provisions for business interest deductions (increase to 50%) and net operating loss (allowing net operating losses to be carried back from 2018, 2019, and 2020 for a period of five years, and eliminating the 80% utilization limit prior to 2021). The New York State Budget decouples from the CARES Act relief, preventing full realization of these benefits for New York State taxpayers.
Individual Income Taxes
In 2016, New York State began a phased rollout of decreasing middle class income taxes, which the Governor’s office projects will result in a “$4.2 billion in annual savings for six million filers by 2025.” Under the 2020 provisions individual income tax rates will be 6.09% for taxpayers in the $43,000-$161,550 income bracket, and 6.41% percent in the $161,550-$323,200 income bracket.
Several other provisions impact individual tax payers. First, the Long-Term Care Insurance credit was decreased to $1,500 (available for those with an adjusted gross income of less than $250,000). New York State also automated the process of electing the higher deduction allowing for the use of the standard deduction automatically where it is greater than allowable itemized deductions. Similarly, where the State has the information to calculate eligibility, entitled taxpayers will automatically receive the Earned Income Tax Credit.
New York State’s Fiscal Year 2021 Budget reflects the uncertainty of economic impact as New Yorkers continue to deal with the effects of COVID-19. The budget provides room to pivot as economic impacts continue to be realized and areas of continuing need are assessed. The mandated sick leave policies will benefit employees, but should be reviewed closely by employers to ensure compliance.
Unfortunately, proposed benefits for small businesses were not included in the final budget. Likewise decision to decouple from the CARES Act tax benefits will negatively impact New York taxpayers. However, some tax benefits continued or expanded including the availability of state tax credits for qualified “Green Projects” and certain jobs, and the multi-year rollout for middle income tax cuts. The new law also continued the phased rollout of decreasing income taxes for middle class New Yorkers.
Estate planning . . . It is one of those “to-dos” in life that is so easy to put off, even when the world isn’t turned upside down. We all want “a plan,” but it never seems like the right time to tackle estate planning. And, let’s be honest, no one wants to think about their own death and what/who we will leave behind. As trying as these times are with this current pandemic, the mortality rate from COVID-19 is low. That being said, between the scare of COVID-19 and how the world has slowed down, it may be a good time to address your estate planning. In fact, despite the stay-at-home order, it is easier than ever to facilitate the signing of important estate planning documents. Governor Cuomo has issued an Executive Order permitting video execution of Wills, remote witnesses, as well as remote/video execution of powers of attorney, health care proxies, and other legal documents. The Governor’s prior Executive Order 202.7 permitted notarization by video at this time in our state. This means that clients can create, sign and update important estate planning documents without leaving the safety of their home. In addition, the remote witnessing makes it so you do not have to let other people, who could be potential risks, into your home. There are, of course, specific guidelines to follow in accordance with these executive orders. While it’s not ideal, it does make safe and effective estate planning possible for those clients that would like to proceed at this time, rather than wait any longer. In reviewing your “estate plan,” remember that it’s more than just a will. You should be reviewing and updating your health care powers of attorney, your legal or financial powers of attorney, as well a living will. If you have these documents already, ensure that your appointed agents are up to date. If you do not have these documents in place, please consider doing so. If you have questions on any of these documents please let us know. Finally, remember that many of your assets may not pass under your will and despite what your will may say, these “non-probate” assets would be distributed pursuant to beneficiary designations or by nature of how you own the asset. These include your life insurance policies, retirement accounts as well as annuities – all of these pass by beneficiary designations which should be reviewed and updated as well.
If we can be of assistance to you in starting an estate plan or updating your present estate plan, please contact us. We would be happy to meet with you ~ even if it is “remotely”.
One of our prior newsletter items addressed employers’ concerns with continuing obligations under their pension and 401(k) plans. It focused on employers’ continuing obligations to fund their defined benefit pension plans and how they could “freeze” those plans to reduce their future contribution obligations.
This newsletter will focus on 401(k) plans and, in particular, the “safe harbor” contribution feature often adopted by employers.
In a 401(k) plan, the employees have the right to defer a portion of their wages and salary by contributing “salary deferrals” to the Plan, and the employer may add its own “profit sharing” feature as well. The employees’ salary deferrals are subject to a special non-discrimination test that in practice often requires the Plan to return to the higher-paid participants some of their deferrals.
Congress encouraged the adoption of 401(k) plans by allowing employers to use one of two safe harbor (“SH“) options to avoid the special non-discrimination test. One safe harbor is a flat 3%-of-pay employer contribution for all Plan participants regardless whether the participant contributed salary deferrals. The other is a matching feature that obligates the employer to contribute as much as 4% of pay, but only for those employees who make salary deferral contributions.
IRS considered SH features very generous and put stringent rules on their use, effectively preventing an employer from making any “mid-year” change to the SH once an employer adopted it. This held true whether changing from one SH to another, or if terminating the SH feature during the year.
These rules have been modified by recent legislation under the SECURE Act of 2019 and the CARES Act of 2020. Beginning 2020, an employer who put in a 3% SH feature can suspend or terminate the safe harbor at any time during the year after giving 30 days advance notice to its employees. But, unless the employer reinstates the 3% SH before the end of the year, the employer loses the “pass” it had on the special testing for deferrals. That will normally mean that either the employer will have to refund some of the salary deferrals made by its highly-paid employees, or make a special one-time contribution that is shared among its non-highly paid employees.
If the employer changes its mind later in the year (or even during the following year), it can reinstate the 3% SH effective retroactive to the beginning of the year, provided reinstatement occurs by December 1 (for a calendar year plan). If the reinstatement occurs after December 1 (and even as late as December 31 of the following year), the retroactive reinstatement is still effective, but the contribution increases from 3% to 4%.
This ability to suspend the safe harbor contribution mid-year and reinstate later in the year only applies to the 3% SH, not to the 4% match SH. If at any time during the year the Plan included the 4% match, no mid-year change can be made that gives the employer the opportunity to reinstate. In other words, suspending the 4% SH match will mean loss of the “pass” on the special non-discrimination test for that year and each ensuing year until a SH feature is again adopted.
With COVID-19’s enormous disruption to the nation’s workforce, this new ability to modify the safe harbor obligation mid-year should prove to be helpful to those employers with safe harbor.
An employer whose 401(k) plan does not already have a 3% SH feature may adopt that feature as late as 30 days prior to the end of the Plan Year (December 1 for a calendar year plan). The prior rule required adoption 90 days prior to the end of the year. The 90-day rule still applies if the employer is adopting the 4% match safe harbor.
One of the more annoying conditions to a valid safe harbor feature is the requirement that participants receive, prior to the beginning of each year, notice of the SH feature in the Plan. Participants had to be notified of either feature at least 30 days before the beginning of the Plan Year (or when the SH was being first adopted mid-year). Certainly, advance notice of a matching contribution feature is warranted, since we can only expect that a participant’s deferral election will be affected by the existence of the match. Why advanced notice was important in the case of a 3% fixed SH contribution still escapes this author. Someone in Congress saw the irrelevance of this, and now the notice requirement in the case of the 3% SH has been eliminated.
We trust these new rules will help employers to navigate the stressful times we are experiencing today. Should you have any questions, call any of us in the Pension Department:
Many farms, especially those involved in hand-picked and other vegetable and fruit operations regularly employ migrant farm workers to assist with planting, harvesting, and other agricultural needs. The world is responding to an outbreak of respiratory disease caused by a novel (new) coronavirus that has been named “SARS-CoV-2” and the disease it causes has been named coronavirus disease 2019 (“COVID-19”). This article addresses consideration for farm’s who employ workers that are not U.S. citizens, and that are housed onsite by the farm while employed.
1. H2-A visas – availability and changes to current protocol
Migrant farm workers working under H2-A Visas may still enter the U.S. in some circumstances, but their travel depends on current restrictions from both the U.S. and their home country. The U.S. is not presently issuing new H2-A Visas.
U.S. Citizenship and Immigration Services (“USCIS”) is temporarily allowing reproduced original signatures on benefit forms and documents. The reproduction must be a copy of the original and may include a scan, photocopy, fax, or similarly reproduced document. The State Department has further advised that it is reviewing these policies and others related to Migrant Farm workers and will update regularly.
The U.S. Department of Agriculture (“USDA”) is attempting to connect available workers (those whose current contracts are expiring) with farmers in need. Additional information can be found at: https://www.farmers.gov/manage/h2a.
Effective March 20, 2002, through April 20, 2020, the U.S. has issued temporary travel restrictions which prohibit non-essential travel between the United States and Mexico. Individuals traveling to and from work, including those in the farming and agricultural industries are exempt from these restrictions. Mexican migrant farm workers who interviewed in person, and were approved for an H2-A Visa last year, may apply for a renewal this year without the need for an in person interview.
2. Safety concerns for employing and housing migrant farm workers
The United States Center for Disease Control (“CDC”), the United States Occupational Safety and Health Administration (OSHA), and other federal and state agencies have already begun issuing guidance on how to keep employees safe during the COVID-19 pandemic. The farm should take special precautions for workspaces and living quarters for workers as recommended by OSHA and other agencies.
a. CDC workplace guidance
The CDC recommends employers take steps to warn employees about the dangers of COVID-19, and to prevent the spread of illness. The CDC provides a variety of print resources to assist with these recommendations, which can be found here: https://www.cdc.gov/coronavirus/2019-ncov/communication/factsheets.html. Special recommendations include informing employees of the symptoms so that they can immediately report to their employer if they become ill, and informing employees of known ways to prevent the spread of illness (i.e., maintain a safe distance, wear personal protective equipment (“PPE”) such as face masks where appropriate, and encourage employees to wash hands).
b. OSHA workplace guidance
OSHA has released guidelines for employers based on the employee’s likelihood to contract COVID-19 at work. Many farms operate a number of agricultural operations that may require employees to have close contact with each other, or the public. Under the current OSHA guidelines, this would put a farm’s employees in the medium risk category of contracting COVID-19 while on the job.
For those in the medium risk category OSHA recommends using physical barriers to prevent contact between employees. Physical barriers include face/sneeze guards where appropriate. In the instance of agricultural work masks may be useful where sneeze guards or physical barriers between employees are not practical. OSHA also recommends minimizing face-to-face contact, removing those known to be ill where possible, and providing masks to those known to be ill in order to prevent the spread of illness. This means, at a minimum, anyone known to be ill should be wearing a mask if they will be exposed to other employees, but should be separated from other employees entirely as soon as possible.
c. Migrant farm worker housing
OSHA and the CDC have not provided guidance specifically on housing for migrant farm workers. However, farms should consider the following controls on housing in order to comply with other applicable recommendations from the CDC and OSHA. If all workers are housed in the same building an out building should be constructed to accommodate the potentially ill. Sick and well workers should not share restrooms, or other facilities, such as dining areas. If no separate space is available sick workers must be moved offsite to prevent infecting others. Sick workers should seek medical care, and should be encouraged follow the advice of their medical provider with regard to further treatment.
Many farms may encounter road blocks in obtaining assistance from migrant farm workers this season due to current national and international travel restrictions. If possible, farms should consider utilizing Mexican workers who were issued H2-A visas last year, and should seek additional advice about available workers from the USDA. Also, farms should be mindful of recommendations from OSHA, the CDC, and other agencies, in order to keep migrant farm workers safe and prevent the spread of COVID-19.
This article is intended to be for informational and discussion purposes only and is not to be construed as legal advice or as a legal opinion on which certain actions should or should not be taken. For additional legal assistance specific to your farm or business reach out to your usual contact at the firm, or contact Melissa Green (email@example.com).
Since 1979, the Syracuse-based law firm of SCOLARO FETTER GRIZANTI & McGOUGH, P.C. has provided sophisticated tax, business, litigation, employee benefits, estate and trust planning and administration services to its individual, business, entrepreneurial and professional clients throughout New York, Pennsylvania, Florida and other states in which its attorneys are admitted to practice.