Last week, the Treasury Department released the “Green Book,” formally known as the General Explanations of the Administration’s Revenue Proposals.  Among its proposals, the Green Book addresses the treatment of on-demand pay arrangements.  These arrangements, which have recently grown in popularity, permit employees to access a portion of their earned wages in advance of the employee’s normal pay date.  For this reason, they are often referred to as “earned wage access programs.”

One of the potential tax concerns with these arrangements has been that, depending upon the program design, the employee could be considered to be in “constructive receipt” of their earned wages.  This creates payroll withholding and depositing obligations for employers regardless of whether the employee actually receives a wage payment.  In addition, the program can cause uncertainty regarding how to properly calculate the required FICA tax and income tax withholdings when the employee elects to receive a payment of earned wages.  For this reason, some third-parties designing the programs (which are often app-based) have sought either to structure the programs as loans or to avoid the constructive receipt issue by requiring the payment of a small fee when the earned wages are paid.

The Green Book proposes that Congress pass legislation amending a number of Code provisions to address these arrangements.  However, the proposal also confirms Treasury’s current view that employees are generally in constructive receipt of their earned wages if they have “unfettered control over the date on which they actually receive their wages.”  Moreover, the proposal notes that “[e]mployers that offer on-demand pay arrangements should maintain either a daily or miscellaneous payroll period and should withhold and pay employment taxes on employees’ earned wages on a daily basis.”

The proposal notes that few, if any, employers currently treat employees as being in constructive receipt of earned wages because of the administrative burden of running daily payrolls.  To address the issue, the Administration is proposing that:

• Section 7701 be amended to provide a definition of on-demand pay arrangements;
• Section 3401(b) be amended to provide that on-demand pay arrangements be treated as weekly payroll periods, even if employees have access to wages during the week;
• Section 3102, 3111, and 3301 be amended to clarify that on-demand pay arrangements are not loans; and
• Section 6302 be amended to provide special deposit rules for on-demand pay arrangements.

These amendments would be effective for calendar years and quarters beginning after December 31, 2022.

The Administration’s proposal will bring much needed certainty to an increasingly common arrangement, but also serves as a warning to employers in the event that Congress fails to adopt the Administration’s proposal.  Payroll providers and trade groups have been pressing Treasury and the IRS for guidance on the programs for several years, but to date, the guidance has not been forthcoming.  Employers with on-demand pay arrangements should consider how the Administration’s position on current law affects them.  In addition, employers should consider what changes would be needed to bring any current arrangements into compliance with the new law if and when Congress adopts some form of the Administration’s proposal.  For example, employers with biweekly or semimonthly payrolls may be required to run payroll weekly if they offer an on-demand pay arrangement.  We will continue to monitor developments.