Last week, the Treasury Department released the “Green Book,” formally known as the General Explanations of the Administration’s Revenue Proposals.  For the second year in a row, the Green Book addresses the treatment of “on-demand” pay arrangements also known as “daily pay” or “earned wage access programs.”  These arrangements permit employees to access a portion of their earned wages in advance of the employee’s normal pay date. 

These programs raise potential tax concerns because, depending upon the program design, the employee could be considered to be in “constructive receipt” of their wages as soon as they earn them.  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 programs (which are often app-based) are structured as loans or attempt to avoid the constructive receipt issue by requiring the payment of a small fee when the earned wages are paid.

As it did last year, 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.” Last year’s proposal was met with an apparent shrug by on-demand payroll providers and Congress alike, with providers making few if any changes in response to Treasury’s stated position and Congress taking no action on the proposal.

To address the issue, the Administration is again 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, 2023.

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.  As we noted when last year’s Green Book was released, payroll providers and trade groups have been pressing Treasury and the IRS for guidance on the programs for several years, but until last year’s Green Book, the government’s position was one of silence.  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.

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Photo of S. Michael Chittenden S. Michael Chittenden

Michael Chittenden practices in the areas of tax and employee benefits with a focus on the Foreign Account Tax Compliance Act (FATCA), information reporting (e.g., Forms 1095, 1096, 1098, 1099, W-2, 1042, and 1042-S) and withholding, payroll taxes, and fringe benefits. Mr. Chittenden…

Michael Chittenden practices in the areas of tax and employee benefits with a focus on the Foreign Account Tax Compliance Act (FATCA), information reporting (e.g., Forms 1095, 1096, 1098, 1099, W-2, 1042, and 1042-S) and withholding, payroll taxes, and fringe benefits. Mr. Chittenden advises companies on their obligations under FATCA and assists in the development of comprehensive FATCA and Chapter 3 (nonresident alien reporting and withholding) compliance programs.

Mr. Chittenden advises large employers on their employment tax obligations, including the special FICA and FUTA rules for nonqualified deferred compensation, the successor employer rules, the voluntary correction of employment tax mistakes, and the abatement of late deposit and information reporting penalties. In addition, he has also advised large insurance companies and employers on the Affordable Care Act reporting requirements in Sections 6055 and 6056, and advised clients on the application of section 6050W (Form 1099-K reporting), including its application to third-party payment networks.

Mr. Chittenden counsels clients on mobile workforce issues including state income tax withholding for mobile employees and expatriate and inpatriate taxation and reporting.

Mr. Chittenden is a frequent commentator on information withholding, payroll taxes, and fringe benefits and regularly gives presentations on the compliance burdens for companies.