IRS Clarifies Rules on Excess Compensation Tax

The Tax Cuts and Jobs Act is an often-overlooked crackdown on seven-figure compensation amounts paid to the highest earners. Essentially, beginning in 2018, your not-for-profit organization could be charged a hefty excise tax if it pays more than $1 million to certain “covered” employees. 

The IRS issued final regulations in early 2021 that generally mirror proposed regs released in 2020 and guidance provided in Notice 2019-09. The new regs, which fall short of wholesale changes requested by nonprofits and other members of the tax community, went into effect on January 15, 2021. But technically, they don’t apply until tax years beginning after 2021. So you still have time to get up-to-speed.

Who’s Covered, What’s Taxed

Under the law, the definition of “covered” employees includes an organization’s five highest-compensated employees (HCEs) for the current tax year, based on remuneration paid in the calendar year ending with or within the fiscal year. It also includes any individual who was a covered employee for any preceding tax year beginning after 2016. Note: There’s no minimum dollar threshold for covered HCEs for purposes of this calculation.

The excise tax kicks in if a covered employee receives remuneration of more than $1 million in a tax year. The tax applies to the portion above $1 million, not the entire amount, and is equal to the corporate tax rate — currently a flat 21%. For these purposes, “remuneration” includes wages paid that are subject to federal income tax withholding, such as salary and bonuses, plus amounts included in gross income under a nonqualified deferred compensation plan.

Here’s an example of how easily compensation can exceed $1 million. A nonprofit pays its president an annual salary of $800,000 and contributes $50,000 a year to a deferred compensation plan on the president’s behalf for 10 years. If, at the end of 10 years, the cumulative benefits vest all at once, the president’s total remuneration is $1.3 million that year [$800,000 + ($50,000 × 10)]. Thus, the nonprofit is liable for an excise tax on the $300,000 excess compensation, resulting in a tax bill of $63,000 (21% of $300,000).

Several Clarifications

Notice 2019-09 and the 2021 final regulations provide several clarifications to the law regarding covered individuals. Specifically:

Each tax-exempt organization operating within a related group of organizations must make a separate determination of who are covered employees each tax year. This applies even if an organization doesn’t trigger the excise tax in a particular year.

An individual who’s designated as a covered employee remains a covered employee indefinitely, even if the person is no longer one of the organization’s five HCEs.

When it determines its five HCEs, an organization must include remuneration paid to the employee by any related organizations.

The IRS also provides guidance on reporting. The tax must be reported on Form 4720, “Return of Certain Excise Taxes Under Chapters 41 and 42 of the Internal Revenue Code.” However, the IRS has compiled data showing that many nonprofits are failing to meet the reporting requirements when one of its covered employees exceeds the $1 million threshold.

Notably, tax-exempt organizations with a calendar tax year were initially required to start filing Form 4720 by May 15, 2019, and should continue doing so by each May 15 following the applicable taxable years. An organization with a non-calendar tax year must file Form 4720 by its tax return due date.

4 Points

The final regulations further clarify the following four key points:

  1. There’s no “grandfather rule” for deferred compensation plans. The excise tax applies to compensation that’s paid or becomes vested during tax years beginning after 2017. The IRS has rejected requests to grandfather amounts paid under agreements created before the TCJA was enacted.
  2. As reflected in prior guidance, the final regs establish that excess compensation rules apply to all organizations that are exempt from tax under Section 501(a). This includes most domestic not-for-profit organizations.
  3. Deferred compensation counts toward the $1 million threshold for the tax year in which it becomes vested and is no longer subject to a substantial risk of being forfeited. It doesn’t matter when it’s actually paid.
  4. The IRS has rejected requests to count only remuneration paid by an organization when calculating the $1 million limit. Therefore, the “aggregation rule” remains in place.

Be Prepared

Although the IRS hasn’t necessarily made all the changes to excess compensation rules desired by nonprofit organizations, you must be prepared to comply. If you’re assessed an excise tax, pay it promptly. Contact us for assistance.

© 2021

Michael Cecere, CPA, MST is a Gray, Gray & Gray partner and chair of the firm’s Non Profit Practice Group. He can be contacted by telephone at (781) 407-0300 or via email at:

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