During any merger, acquisition, or internal reorganization there are myriad corporate considerations on the tax and non-tax front. Besides all the internal resources utilized, there are usually attorneys, accountants, and outside consultants engaged to help the organization overcome the numerous hurdles it will encounter as it makes its way through the acquisition/transition process.

However, there is one department that is often left out of the internal planning stages of many transactions, and where hidden value, both in cash and employee satisfaction can be found – payroll! That is because in many cases where employees are transferring between legal entities as a result of a transaction, there can be significant savings available if handled properly on the front end.

And the good news is, even if payroll does not have that early seat at the table to facilitate prospective savings, refunds could still be available for 3+ years after the transaction closes.

As most readers know, there are certain payroll taxes that have an annual maximum cap or taxable wage base applied. Social security ($142,800 in 2021), Federal Unemployment Tax ($7,000) and State Unemployment Insurance (range from $7,000 –

$47,400) all have annual limits. In many cases, those year-to-date amounts reached pre- transaction can carry over post-close so that the successor entity does not have to restart the wage base from dollar one.

Sometimes the ability to take advantage of these carryover opportunities is hampered by system limitations, lack of proper guidance and planning or simply not enough hours in the day.

Let’s explore some thoughts on prospective planning and retroactive recovery:

What Is Successorship?

The definition of successorship in the context of taxable wage continuation often differs between federal and state.

Federal-Level Successorship

In the federal employment tax space, successorship for wage base continuation is generally achievable when an entity acquires all the business and operations of a prior entity or a segregable portion of a business (think buying a division of a company, or a specific warehouse or manufacturing site) and continues the operations of that acquired business post-transaction. This is, of course, a simplified definition, and the specifics of any transaction would need to be reviewed for applicability. However, in many cases, a successorship position is available to the buyer at the federal level if carefully considered and acted upon during transaction planning.

Meeting the federal definition of a successor employer allows for the continuation of the Social Security and Federal Unemployment Tax wage bases which could provide significant transactional savings as well as increased employee satisfaction during what is sometimes a stressful time.

State-Level Successorship

At the State Unemployment Insurance (SUI) level, things can get a little trickier. While some states, like New York, require successorship in the event of any transaction, other states, like Florida, require agreement between predecessor and successor in order to allow for such a position.

What must also be considered at the SUI level is that, in some cases, a successor employer taking advantage of the wage base carryover may also be liable for the predecessor’s SUI tax history. As a result, a buyer could get a short-term gain by carrying over the YTD taxable wage base, but then be saddled with long term tax increases in the event of poor SUI history.

Both factors need to be weighed, especially in those states that provide the buyer options as to whether to succeed or not. Also, some states will allow for the successor position for wage base continuation and not require the buyer to take on the SUI history of the seller.

One important note: any transaction in which the buyer and seller are commonly owned or controlled requires the transfer of SUI history, including timely transactional reporting.

Taxable Wage Base Transfer Planning

During the planning stages of any transaction, whether an outside acquisition or internal reorganization, proper coordination and research can result in significant savings and make life much easier for employees.

One of the important areas that is often missed is the consultation with professionals who have a deep knowledge of employment tax to help determine whether federal and/or state successorship applies. Too often, companies will rely on a third-party payroll vendor or a payroll department lead who understands the mechanics of payroll and the system operations but is not deeply embedded in the tax side. Successorship positions and decisions can be complex and, in the case of SUI, extremely time sensitive and fact specific. In some cases, a buyer will need to negotiate in a purchase agreement the ability to get YTD payroll information by employee and historical SUI tax records in order to take advantage of carryover and SUI tax successorship provisions. This is not usually a controversial ask; it is just often overlooked until after the deal closes, when cooperation outside of the original agreement may wane.

Prior Year Refunds

In many cases, because of system limitations, lack of planning in the space or just a time crunch in closing the deal, taxable wage bases are restarted when they do not need to be. All is not lost, however, and recovering cash for those prior year transactions may still be available for years after close.

In most cases, if the company has met the definition of a successor employer and restarted taxable wage bases, refunds of Social Security and FUTA taxes paid are available for up to three years after the employment tax filing deadlines for the year of the deal, generally April 15 and January 31 (or February 10), respectively.

For example, let’s say you had an internal reorganization that resulted in a restart of taxable wages on July 1, 2017. The filing deadline for Forms 941 and 940 were April 16, 2018 (April 15 was a Sunday) and January 31, 2018 respectively. The statute of limitations for filing for refunds is three years from those dates, thus an employer has until April 15, 2021 and February 1, 2021 (January 31 is a Sunday) respectively to file for refunds of duplicate Social Security and FUTA taxes paid.

There is, of course, some complexity with these refund filings. Detailed wage information by employee may be needed, and, in the case of Social Security refunds, the employer may be required to attempt to recover such overpayments for employees (though most likely recovered on their own already). However, depending upon the extent of the refund, the dollars might be well worth the effort.

On the SUI side, every state is different in terms of refund deadlines, decisions which may have been made (or not made) as to successorship at the time of the transaction and the ultimate cost/benefit of the refund vs a future rate increase.

Once again, if available, the review of the refund potential may be worth the effort it takes to determine viability.

Final Thoughts

The best way to guard against the unnecessary expense of double taxation and enhance employee satisfaction is, simply put, planning which includes payroll tax considerations.

In most cases, obstacles can be overcome to facilitate proper successorship recognition contemporaneously with a transaction, but it will take coordination between internal and external professionals and vendors in a timely fashion. However, even if the company cannot get there timely, refund options may still be available after the fact, and can be lucrative depending upon the individual case.

Refunds may be currently available dating back to 2017 – if your company has had M&A activity, or even an internal reorganization, it may be worth taking a look while there is still time.

Original post can be found on Scott Schapiro’s website: https://www.ex4payrolltax.com/post/payroll-tax-savings-in-the-m-a-space