Two Weeks Left to File 2009 FICA Refund Claims for Severance Payments

url2The deadline for filing 2009 FICA refund claims based on U.S. v. Quality Stores, Inc. is fast approaching. Corporate taxpayers who experienced layoffs, reductions in force, and/or facility closures in 2009 or thereafter may file a protective refund claim for FICA taxes withheld from severance payments made to involuntarily terminated employees. Taxpayers have until April 15, 2013, to file a protective refund claim for all four quarters filed in 2009.

The refund claims are predicated on the Sixth Circuit Court of Appeals’ holding in U.S. v. Quality Stores, Inc., previously reported here, which held that certain severance payments are not subject to FICA withholding. The ruling specifically applies to taxpayers in Kentucky, Michigan, Ohio, and Tennessee (the states within the jurisdiction of the Sixth Circuit) but taxpayers across the country have been filing claims to protect their right to potential refunds.

The government is still considering whether to challenge the decision in the United States Supreme Court. The original deadline for filing a petition for writ of certiorari was April 4, 2013, but last week the Supreme Court granted the government’s request for a 30-day extension. Those waiting to see if government would seek the high court’s review before filing a protective claim will now have to make a decision without that knowledge. The government’s deadline for filing a petition is May 3, 2013.

Today: Supreme Court to Hear Arguments in DOMA Tax Case

Seal_of_the_United_States_Supreme_Court.svgToday, the United States Supreme Court will hear arguments about the Constitutional rights of homosexual couples courtesy of the Internal Revenue Code.

The Court may rule on a variety of grounds in United States v. Windsor including standing (was the couple’s marriage recognized under New York law) and the proper Constitutional standard (does Intermediate Scrutiny apply to homosexuals) but the case started with a tax return.

Edie Windsor and Thea Spyer were New York residents and a couple for over 40 years. In 2007, they were married in Canada where same-sex marriage was legal. Upon Thea’s death, Edie filed a federal estate tax return, Form 706. Thea’s estate paid $363,053 in federal estate taxes because she was not eligible for the unlimited marital deduction under IRC §2056(a) – a benefit routinely applied to married couples of different sexes. Edie filed a claim for refund of the estate taxes paid. When that claim for refund was denied she filed suit in federal district court.

The refund denial was reversed by the U.S. District Court for the Southern District of New York and the Second Circuit Court of Appeals. Read opinions published in those cases here and here.

Whether not the Supreme Court issues a sweeping or narrow opinion on the rights of homosexuals, there is little question that the tax code touches everyone. After all, that’s where this case started.

IRS Requests Rehearing in 6th Circuit FICA Withholding Case

Late last week, the IRS filed a petition for rehearing en banc with the 6th Circuit Court of Appeals in U.S. v. Quality Stores. As we originally reported, the three judge panel that heard the case decided in favor of the taxpayers, triggering a potential refund opportunity for many corporate taxpayers.

The government’s petition confirms the magnitude of existing refund claims. Eight refund suits are pending in the district courts with a total of over $120 million at issue and that there are administrative refund claims totaling over $127 million from taxpayers within the jurisdiction of the Sixth Circuit (Kentucky, Michigan, Ohio and Tennessee). The IRS projects that the total amount in controversy over this issue is more than $1 billion.

Read the IRS’s Petition for Rehearing here:
Quality Stores Petition for Rehearing

Second Circuit: DOMA Unconstitutional In Estate Tax Case

The Second Circuit Court of Appeals has affirmed the ruling of the U.S. District Court for the Southern District of New York that Clause 3 of the Defense of Marriage Act (DOMA) is unconstitutional.

The case originated with a refund claim for overpaid estate taxes. Edie Windsor and Thea Spyer were a married homosexual couple from New York. Upon Thea’s death, Edie paid $363,053 in federal estate taxes because she was not eligible for the unlimited marital deduction under IRC Section 2056(a) – a benefit routinely applied to married couples of different sexes. When Edie’s claim for refund of the estate taxes was denied she filed a refund action in U.S. District Court.

The trial court held that DOMA denied Ms. Windsor equal protection under the law as guaranteed by the 5th Amendment to United States Constitution. The three judge appellate panel agreed. It added that “homosexuals have suffered a history of discrimination” and thus the proper legal standard for determining Constitutional protections is intermediate scrutiny. The court held that DOMA could not meet that standard and thus Edie’s 5th Amendment right to equal protection under the law was violated when the provisions of the Internal Revenue Code applied differently to her than to other surviving spouses.

Read the opinion here:
Windsor v. U.S., No. 12-2335 (2d Cir. Oct. 12, 2012)

California Issues Guidance for MTC Election Refund Claims

Following the recent California Court of Appeal decision affirming Gillette’s election to apportion income under the Multistate Tax Compact (MTC), the California Franchise Tax Board (FTB) has issued guidance for taxpayers who wish to preserve the statute of limitations by filing amended returns that elect the MTC method retroactively.

The FTB has made clear its position that a taxpayer cannot elect to utilize the methodology contained in the MTC on an amended return. The FTB also is clear that it will only take action on the claims once Gillette has been fully resolved. Nonetheless, taxpayers wishing to file a protective claim retroactively electing to utilize the apportionment method contained in the MTC should mail an amended return or a letter claim to the FTB at:

Compact Method 347 MS: F381
Franchise Tax Board
C/O FTB Notice 2012-01
P.O. Box 1673
Sacramento, CA 95812-1673

The amended return should include

  • a revised Schedule R
  • a computation of the refund amount, and
  • “COMPACT METHOD” should be written in red at the top of the amended return.

An amended return is required for each year for which the retroactive election is made.

Please refer to the announcement for additional filing requirements.

FTB Notice 2012-01

6th Circuit: Severance Payments Not Subject to FICA Withholding

In a long-awaited decision, the Sixth Circuit has held that severance payments following involuntary lay-offs were not wages for FICA reporting purposes. The decision is an opportunity for refund claims by corporate taxpayers who have made similar severance payments after shutting down a physical location or line of business. Neither a bankruptcy or complete business closure is necessary. Taxpayers should contact their tax advisors to review their facts before filing a claim.

The facts of this case are as follows. Quality Stores, Inc., the operator of Central Tractor Farm & Country, went through bankruptcy proceedings beginning in the fall of 2001. Quality Stores closed all locations and operations. As part of the closures, the company filed pre- and post-petition severance plans for its employees that included payments for job losses. FICA and Federal income taxes were withheld from the payments.

Quality Stores later filed a claim for refund of over $1 million for the employer and employee portions of the remitted FICA taxes. The claim was denied by the IRS and the taxpayer sought relief in the Bankruptcy Court. The Bankruptcy Court found that the severance payments were supplemental unemployment compensation benefits (“SUB payments”) and therefore not wages for purposes of FICA withholding. The refund was proper. The District Court affirmed. The government appealed.

The Court of Appeals was asked to determine whether the payments were SUB payments, and if they were, whether or not they were also wages for purposes of FICA withholding. IRC Section 3402(o) provides for the “[e]xtension of withholding to certain payments other than wages.” The Court’s decision turned on the question of whether or not the SUB payments were “other than wages” as suggested by Section 3402(o). If the payments were not wages for FICA purposes, then the refund should be granted.

The Court of Appeals reviewed the matter de novo and agreed with the lower courts’ determinations that the payments were SUB payments. This was an important determination because it was a point of distinction between the Sixth Circuit’s analysis and that of the Federal Circuit. In CSX Corp. v. U.S., 518 F.3d 1328 (Fed. Cir. 2008), the Federal Circuit Court of Appeals held that similar severance payments were wages subject to FICA withholding.

The Sixth Circuit held that the Quality Stores payments were SUB payments as defined by a five-part test drawn from IRC Sec. 3402(o)(2)(A). In the Sixth Circuit’s view a payment meeting the following requirements was a SUB payment:

(1) an amount paid to an employee; (2) pursuant to an employer’s plan; (3) because of an employee’s involuntary separation from employment, whether temporary or permanent; (4) resulting directly from a reduction in force, the discontinuance of a plant or operation, or other similar conditions; and (5) included in the employee’s gross income.

It further opined that the payments need not be tied to the payment of unemployment compensation and that there was no distinction between payments made in a lump sum and those made over a period of time.

By contrast, the Federal Circuit had determined that a SUB payment must meet an eight part test that was set forth in a 1956 IRS Revenue Ruling. The Sixth Circuit rejected this approach, found that the severance payments were SUB payments, and proceeded to determine the meaning and purpose of Section 3402(o).

The Sixth Circuit held that “the necessary implication” of the phrase “shall be treated as if it were a payment of wages” in Section 3402(o)(1) is “that Congress did not consider SUB payments to be “wages,” but allowed their treatment as wages to facilitate federal income tax withholding for taxpayers.” It then recognized the possibility that the language may be ambiguous, a concession to the Federal Circuit’s contrary conclusion, and reviewed the title and intent of the statute. The Court’s review yielded the same conclusion – Congress did not intend that SUB payments be treated as wages for FICA purposes and they should not be treated as such.

The Sixth Circuit’s ruling, like the CSX opinion, considered the Supreme Court’s holding in Rowan Cos. v. United States, 452 U.S. 247 (1981)(holding the definition of wages is the same for FICA and income tax purposes). It also distinguished government arguments based on the Supreme Court’s decisions in Environmental Defense v. Duke Energy Corp., 549 U.S. 561 (2007), and Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. ___, 131 S. Ct. 704 (2011), and its own decision in Appoloni v. United States, 450 F.3d 185 (6th Cir. 2006).  It also rejected the IRS administrative guidance that played a more significant role in the CSX decision.

This opinion has set up a clear split in the circuits and it is likely that the government will pursue further review of this case. A petition for rehearing is due on October 22. A petition for certiorari to the United States Supreme Court would be due on December 6.

Read the opinion here:
U.S. v. Quality Stores, Inc., No. 10-1563 (6th Cir. Sept. 7, 2012)

District Court: Estate Tax Marital Deduction Triggers Unconstitutional Ruling on DOMA

In a case that begin with a claim for a refund of estate taxes paid, Judge Barbara S. Jones of the Southern District of New York ruled that the Defense of Marriage Act (DOMA) is unconstitutional under the Equal Protection Clause of the 5th Amendment.

Edie Windsor and Thea Spyer were a couple for over 40 years and in 2007 were married in Canada where same-sex marriage was legal. Their marriage was later recognized in their home state of New York. Upon Thea’s death, Edie paid $363,053 in federal estate taxes because she was not eligible for the unlimited marital deduction under IRC Section 2056(a) – a benefit routinely applied to married couples of different sexes. Edie filed a claim for refund of the estate taxes on the grounds that DOMA denied her equal protection under the law as protected by the 5th Amendment to United States Constitution.

Frequent readers know that when possible we like to note interesting procedural aspects of the cases we feature here and this cases qualifies in two aspects. First, was the question of the parties. The case was filed in November of 2010. In February of 2011, Attorney General Eric Holder announced that the Department of Justice would not defend the constitutionality of DOMA. Given that DOJ would no longer defend the suit, the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives moved to intervene under F.R.C.P. 24 and defend the matter in the place of the Department of Justice. The group’s order was granted. Thus, the parties to the final order were Ms. Windsor as plaintiff and BLAG as defendant-intervenor.

The second interesting procedural note before the court was Edie’s standing to bring the suit. Standing generally requires three elements: (1) an injury in fact, (2) a causal connection between the defendant and the injury, and (3) a means of remedy within the power of the court. The defendant-intervenor argued that Ms. Windsor did not satisfy the second of these elements. The court disagreed noting the State of New York’s recognition of Edie and Thea’s marriage at the time of death as a factor in its finding.

On the ultimate question, the District Court granted Ms. Windsor’s motion on summary judgment ruling that section 3 of DOMA was unconstitutional because it failed to establish a rational basis for advancing a legitimate government under the Equal Protection Clause. The court ordered a that Edie’s refund claim be paid with interest.

Read the entire opinion here:
Windsor v. U.S., No. 10-cv-08435 (SDNY June 6, 2012)