November 23, 2009

Unspent Professional Reimbursement Plan Advances

Question:

A pastor writes, "Every year I break my package down how I want (base salary, housing, and a professional reimbursement). Can I carry over my excess unspent professional reimbursement or excess expenses into the following year?

Answer:

IRS Publication 15 spells out the rules for accountable plans--required conditions for employees to receive non-taxable employer advances for business expenses:

"To be an accountable plan, your reimbursement or allowance arrangement must require your employees to meet all three of the following rules.

1. "They must have paid or incurred deductible expenses while performing services as your employees. The reimbursement or advance must be paid for the expense and must not be an amount that would have otherwise been paid by the employee.

2. "They must substantiate these expenses to you within a reasonable period of time.

3. "They must return any amounts in excess of substantiated expenses within a reasonable period of time."

Publication 15 goes on, "Amounts paid under an accountable plan are not wages and are not subject to the withholding and payment of income ... taxes.

"If the expenses covered by this arrangement are not substantiated (or amounts in excess of substantiated expenses are not returned within a reasonable period of time), the amount paid under the arrangement in excess of the substantiated expenses is treated as paid under a nonaccountable plan. This amount is subject to the withholding and payment of income ... taxes for the first payroll period following the end of the reasonable period of time.

"A reasonable period of time depends on the facts and circumstances. Generally, it is considered reasonable if your employees receive their advance within 30 days of the time that they incur the expenses, adequately account for the expenses within 60 days after the expenses were paid or incurred, and return any amounts in excess of expenses within 120 days after the expenses were paid or incurred. Also, it is considered reasonable if you give your employees a periodic statement (at least quarterly) that asks them to either return or adequately account for outstanding amounts and they do so within 120 days."

APPLICATION TO MINISTERS AND CHURCHES: Can expenses or reimbursements be carried over from one year to the next? Well, I suppose they can. For example, at each month-end a church advances its pastor $100 for his professional expenses ($1,200 per year). The pastor uses this money in January, documents it to the church in February, and returns any excess advance in April. This seems to meet the requirements.

The PROBLEM with the question posed above relates to who is funding the professional expense reimbursement plan. These plans are designed (and permitted by the Internal Revenue Code) to use an employer's funds to reimburse employees for their job expenses. When an employee manipulates his own pay (with the cooperation of his employer) on an annual basis to gain tax-free treatment of the reimbursements, then the types of scenarios address here can arise. After all, it's the minister's money that may need to be returned to the church when this was certainly never the intent. Professional expense reimbursement plans do not work like 403(b) plans with annual elective deferrals or cafeteria plans with employee elections.

My SUGGESTION: When a minister first begins employment with the local church, the initial compensation package may allocate an appropriate portion to the church's budget for professional expenses. The minister and congregation will want to estimate on the low side since excess funds must remain with the church (or be reimbursed back to it). In subsequent years, the church should first increase this budget to more closely align with the minister's actual expenses. After this budget is set, it may consider any raise in taxable compensation or other employee benefits. This process removes the very awkward situation described above.

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