The Executive Office of the President, Office of Management and Budget, announced on January 30, 2023, that the COVID-19 national emergency and public health emergency that were declared in 2020 will both end on May 11, 2023. As a result, COVID-19 cannot be the reason used to make tax-free “qualified disaster relief payments” to employees (or others) under Internal Revenue Code Sec. 139 for expenses incurred on and after that date.
This wind-down aligns with the administration’s previous commitment to provide at least 60 days’ notice prior to the termination of the public health emergency.
IRC Sec. 139 allows employers to help employees cope with personal, family, living or funeral expenses incurred as a result of a declared national emergency by providing tax-free payments or reimbursements. COVID-19 is one such declared national emergency.
When making tax-free payments under IRC Sec. 139, the payor must consider whether, “but for” the disaster (i.e., COVID-19), the expense would have been incurred. There was unquestionably widespread eligibility to use IRC Sec. 139 during 2020 and 2021. But satisfying that gateway test in 2022 and 2023 has become increasingly challenging, since daily life in the United States has mostly returned to normal (quarantines, social distancing and face mask restrictions have mostly changed from mandatory to voluntary, schools and businesses are generally open, public gatherings are permitted in churches, theaters, sporting events, travel has generally resumed, etc.).
Employers currently using IRC Sec. 139 to exclude employee payments from taxable wages may need to confirm that the expense continues to be incurred on account of COVID-19 and to revise their policies and procedures to begin taxing such payments as of May 11, 2023, unless another IRC provision would allow the employer to treat the payments as tax free. While IRC Sec. 139 did not require documentation of the expenses, other IRC provisions are likely to require documentation to obtain tax-free treatment.
Many expenses incurred by employees due to COVID-19 might have qualified for tax-free treatment under several IRC provisions. IRC 139 required the least amount of documentation and therefore, was relied upon often. For example, many employers reimbursed employees for home internet (and other work-from-home expenses) while working remotely due to COVID-19 quarantine mandates. Some of these same expenses might qualify for reimbursement as a working condition fringe benefit and continue to be reimbursable on a tax-free basis under an accountable plan, provided the substantiation requirements are satisfied.
Since COVID vaccines, testing and other pandemic management efforts have allowed most of the U.S. to return to somewhat normal operations, it has become more difficult to rely on IRC Sec. 139. However, all expenses being treated as nontaxable under IRC Sec. 139 due to COVID-19 will lose that benefit as of May 11, 2023. The expense might qualify as a nontaxable reimbursement under other IRC provisions.
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