Many employees have suffered financial hardships because of the COVID-19 pandemic. In response, some employers may consider offering financial assistance as a fringe benefit. A common question that arises regarding such an idea is: Does the Internal Revenue Code allow disaster relief payments to be made on a tax-advantaged basis specifically in relation to COVID-19?

Excludable Payments

Section 139 of the tax code allows individuals to exclude from their federal gross incomes any amount they receive as a ‘qualified disaster relief payment.’ Excludable payments include reimbursements or direct payments for reasonable and necessary personal, family, living, or funeral expenses, or the repair, rehabilitation, or replacement of an individual’s personal residence or its contents because of a qualified disaster. Payments are not excludable to the extent other compensation (such as insurance) covered the expenses.

Typically, qualified disaster relief payments are offered following local or regional disasters — for example, a hurricane or flood. The term “qualified disaster,” however, includes any event determined by the President to warrant assistance under the Robert T. Stafford Disaster Relief and Emergency Act. Such a disaster was indeed declared in connection with the COVID-19 crisis.

As a result, if your organization makes qualified payments to employees in the United States who have incurred qualifying expenses because of the COVID-19 pandemic, those payments should not be subject to income tax withholding, Federal Insurance Contributions Act or Federal Unemployment Tax Act, and should not have to be reported on employees’ W-2 forms.

Factors & Considerations

There are no regulations and only one IRS ruling under Section 139, so there is little formal guidance for employers wanting to make qualified disaster relief payments.

In its ruling, the IRS cites the legislative history of Section 139, which indicates that individuals will not be required to account for actual expenses to qualify for the exclusion, provided the amount of the payments is reasonably commensurate with the expenses incurred.

This suggests that qualified disaster relief payments can be implemented with minimal formal administration. Nevertheless, employers should consider several factors, including:

• Who will be eligible for payments
• What evidence of need will be required
• What amounts will be provided
• How the program will be communicated
• How payments will be made
• How payments will be documented to support a federal tax deduction

There also may be legal considerations. For instance, though Section 139 has no nondiscrimination rules, your organization’s qualified disaster relief payments may be subject to other nondiscrimination provisions under state and federal laws. And though Section 139 will exclude qualifying payments from federal tax, they may be taxable under state law.

Working with a Vendor

Employers can choose to work with a vendor that administers one of their other benefits, such as Flexible Spending Accounts, to provide qualified disaster relief. One of your current service providers may already have systems in place to do so. Some electronic payment card vendors are also reportedly offering or preparing products to facilitate qualified disaster relief in relation to the COVID-19 pandemic. Contact us for further information about the idea.