With the COVID-19 crisis pushing people across the country into financial hardship, it’s natural that some nonprofits want to extend a helping hand to staff members. The good news is that the federal tax code provides a way to make tax-free direct payments to your employees who’re in need with disaster relief.

What qualifies

Section 139 of the Internal Revenue Code permits employers to provide direct payments to employees to cover expenses arising out of a “qualified disaster.” There are many types of qualified disasters, but they typically arise in the context of local or regional adversity such as hurricanes. The pandemic has been federally declared a disaster for the entire country.

Excludable payments

These disbursements to employees generally are excluded from the recipients’ gross income for federal tax purposes, and you don’t need to report them on W-2 forms. Excludable payments include payments or reimbursements for reasonable and necessary:

  1. Personal, family, living or funeral expenses, and
  2. Repair, rehabilitation or replacement of an individual’s personal residence or its contents.

Examples of pandemic-related expenses that may be eligible for reimbursement include tutoring expenses for employees’ children attending school virtually due to school closures, and additional costs incurred while working from home when workplaces are closed. Qualified disaster payments don’t include payments for expenses otherwise covered by insurance or other reimbursements. But any COVID-19 medical expenses not so covered can be reimbursed to employees.

Payments for income replacement, such as lost wages, lost business income or unemployment compensation, aren’t considered qualified disaster payments. In other words, you can’t make tax-free payments to employees for work that, because of COVID-19, they aren’t performing.

Legal and practical considerations

Before moving ahead with giving out payments, think about potential legal implications. For example, although Sec. 139 itself doesn’t include any nondiscrimination rules, payments made under the provision could be subject to discrimination prohibitions in other state and federal laws. In addition, your state might not exclude the payments from income.

You also shouldn’t make the payments on an informal basis. Develop guidelines addressing matters such as eligibility, the documentation you’ll require to receive a payment, the payment amount, and the records you’ll maintain. Note that individuals aren’t required to account for their actual expenses to qualify for the income exclusion as long as the amount of payments is commensurate with expenses incurred.

Do it right

The IRS has issued sparse formal guidance on how to properly implement these payments, but don’t let that deter you. We can help you develop procedures to provide much needed — and likely much appreciated — support.

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Thompson Greenspon

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