Lawyers Journal

Qualified sick pay plans prevent IRS headaches

Many small businesses, law firms and family-owned corporations do not take advantage of a very important employee benefit called the "qualified sick pay plan."

This is a plan that will allow an organization to deduct the wages paid to an employee who is too sick or injured to work. Without a formal written plan, the IRS does not allow your business a deduction for these expenses. Every $1 you pay out costs $1.65 ($1.81 for S-corporation owners, partners and sole proprietors) because the IRS views it as an "ad hoc" payment that is not tax deductible.

Funding a qualified plan is best accomplished through the use of disability income insurance. This not only allows you to expense the costs, but a "return of premium" provision can bring your net cost to almost nothing.

There are several Internal Revenue Codes that deal specifically with this issue. Internal Revenue Code 105 describes an "accident sickness plan" as a program for paying employees who gets sick or is injured. Because they continue the salaries of employees forced out of work by accident or illness, sick pay plans are included in this definition. Benefits received under an employer-provided sick pay plan are taxable, and only a portion of the benefits provided by the employer are subject to federal income tax. These plans must be established solely for a firm's employees.

Internal Revenue Code, Section 106, explains that when a sick pay plan is backed by disability income insurance, premium payments made by the employer are considered contributions to an accident or health plan. These payments will not be included in an insured employee's gross income. Internal Revenue Code, Section 162, shows how an employer can deduct disability income insurance premiums paid to support a sick pay plan as an ordinary and necessary business expense. There are exceptions for S-corporation shareholders, partners and sole proprietors.

This actually sounds more complicated than it is, and any representative from a disability insurance company can show you how to set this up. There are really only two steps in creating a sick pay plan. The first step is to draft a formal, written plan document using a disability income proposal, and the second step is to let participating employees know the plan exists. It is almost that easy! If your firm has fewer than 100 employees, you might be exempt from ERISA reporting requirements.

Remember, proper implementation of employee benefits can save your business money on premiums, give you deductible expenses, and provide peace of mind. A qualified sick pay plan is a great way to improve employee loyalty and help you reward and retain key employees.

Jeanne Brutman, LUTCF, CFBS, CLTC, CFS, is a financial planner. She can be reached at 212-244-6995 or via email at [e-mail jeanne].

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