On August 8, President Trump signed four executive actions, including a Presidential Memorandum to defer payroll taxes. This includes the employee’s portion of Social Security taxes for some people. Implementation of these tax changes for 2020 are in an effort to offer more relief due to the COVID-19 pandemic.

The action is to only defer payroll taxes, and is not an actual COVID-19 tax deduction. This means that the taxes will have to be paid in the future. However, the action directs the U.S. Treasury Secretary to

“explore avenues, including legislation, to eliminate the obligation to pay the taxes deferred pursuant to the implementation of this memorandum.”

Legislative History

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act. A short time later, President Trump signed into law the Coronavirus, Aid, Relief and Economic Security (CARES) Act. Both laws contain economic relief provisions for employers and workers affected by the COVID-19 crisis.

The CARES Act allows employers to defer paying their portion of Social Security taxes through December 31, 2020. All 2020 deferred amounts are due in two equal installments — one at the end of 2021 and the other at the end of 2022.

New Bill Talks Fall Apart

Discussions of another COVID-19 stimulus bill between Democratic leaders and White House officials broke down in early August. As a result, President Trump signed the memorandum that allows to defer payroll taxes for many, but not all, employees.

The memorandum directs the U.S. Treasury Secretary to defer withholding, deposit and payment of the tax on wages or compensation, as applicable, paid during the period of September 1, 2020, through December 31, 2020. This means that the employee’s share of Social Security tax will be deferred for that time period.

However, the memorandum contains the following two conditions:

• The deferral is available with respect to any employee, the amount of whose wages or compensation, as applicable, payable during any biweekly pay period generally is less than $4,000, calculated on a pretax basis, or the equivalent amount with respect to other pay periods.
• There will be deferral for the amounts without any penalties, interest, additional amount, or addition to the tax.

The Treasury Secretary was ordered to provide guidance to implement the memorandum.

Legal Authority

The memorandum (and the other executive actions signed on August 8) notes that the implementation will be consistent with applicable law. However, some are questioning President Trump’s legal ability to implement the employee Social Security tax deferral. Also, keep in mind that the “Social Security wage base” is increasing for 2021.

Employer Questions to Defer Payroll Taxes

Employers have questions and concerns about the payroll tax deferral. For example, since this is only a deferral, will employers have to withhold more taxes from employees’ paychecks to pay the taxes back, beginning January 1, 2021? Without a law from Congress to actually forgive the taxes, will employers be liable for paying them back? What if employers are not able to change their payroll software in time for the September 1 start of the deferral? Are employers and employees required to take part in the payroll tax deferral or is it optional? Will there be a penalty for not paying payroll taxes on time?

Contact us if you have questions about how to proceed. And stay tuned for more details about this action and any legislation that may pass soon.