September 20, 2021

Volume XI, Number 263


September 20, 2021

Subscribe to Latest Legal News and Analysis

September 17, 2021

Subscribe to Latest Legal News and Analysis

Taking and Making Hurricane-Related Donations: Options, Considerations, and Other Ways for Employers and Employees to Help Now

Before Hurricane Harvey unleashed its devastation on Texas and Louisiana, Federal Emergency Management Agency (FEMA) Administrator Brock Long said, “People need to be the help before the help arrives.” With Hurricane Irma now threatening Florida and the East Coast, the need for hurricane-related relief doesn’t stop with Harvey.

If your company has employees who were impacted by Harvey—or who are affected by Irma in the coming days—you may be thinking about how you and your non-impacted employees can “be the help before the help” for those impacted employees. Insurance and FEMA monies take time, and not all losses will be covered. You may have employees who want to donate to their colleagues and are asking the company to coordinate their efforts. Even if you don’t have employees impacted by Harvey, Irma, or other disasters, you may be thinking about what your company could do if something like this does happen to your employees.

Disaster-Relief Donations

A simple and direct option for employers to provide aid to impacted employees is to pay qualified disaster relief payments (QDRPs). In general, the Internal Revenue Service (IRS) is highly suspect of gifts from employers to employees. In the wake of the September 11 terror attacks, QDRPs were created to provide a clear income tax exclusion for employer-funded relief payments to victims affected by federally-declared natural disasters and other catastrophes. This means that an employer can quickly provide cash payments to affected employees to help them deal with the immediate aftermath of a disaster while also sparing the employee from being taxed on those payments. Importantly, these relief payments are generally deductible business expenses for employers. However, with all good things come some bad, and as with most situations involving the IRS, there are important requirements and conditions that employers must consider before providing relief payments to employees.

What if an employer wants to supplement its own relief efforts by facilitating donations from employees unaffected by a disaster? Unfortunately, this is where things get more complicated. There are a number of options available, but they may not offer the kind of quick solution disaster relief often requires.

  • Establish a charitable 501(c)(3) employee relief fund. An employer can establish a 501(c)(3) nonprofit corporation to receive and disburse donated funds to affected employees. This approach yields the best tax results to all parties involved (e.g., tax deductibility for donors, no tax liability for the recipients, and no tax liability for the employer) and offers complete control over distribution of aid—subject, as always, to IRS requirements. This approach does require the creation of a corporate entity along with the attendant formalities and also requires an application to the IRS to secure tax-exempt status for the entity. Aside from the initial time commitment to establish a new charitable organization, this approach presupposes an ongoing charitable mission. In other words, an employer probably wouldn’t want to establish a new 501(c)(3) entity solely to provide relief for a single disaster situation.

  • Establish a donor-advised fund with an existing charity. An employer can set up a fund under the umbrella of an existing charitable foundation and achieve the same tax advantages as would be available with a new 501(c)(3) entity. Under this approach, donations could be made by the employer, employees, or the general public to the new fund, and the existing charity would then be responsible for distributing those funds, with significant input from the employer, subject to applicable IRS regulations.

  • Crowdfunding. As crowdfunding has become a more accepted way of fundraising for startups, charitable activities, and other similar ventures, many employers have naturally considered its uses for providing disaster relief on an expedited basis. This approach might involve establishment of a new bank account to receive donations or might involve the use of a third-party online funding aggregator. Although this approach does have the benefit of relative simplicity and speed—very desirable characteristics when disaster relief needs are urgent—in the final analysis, it may not be quite as simple or cost-effective as other alternatives. This approach does not yield the favorable tax benefits to donor employees mentioned above, and it may present some tax-related complexities for the employer that organizes the funding campaign, unless the relief payments qualify as QDRPs. Moreover, third-party aggregators tend to impose fairly substantial administrative fees for their services, and they do not assume responsibility for actually disbursing funds.

Low-Cost Ways to Help Affected Employees

Maybe your company was heavily impacted by Harvey and you are not in the financial position to make donations to employees and/or are without the administrative resources to set up a donation platform. There are no-cost and low-cost ways you can also help your impacted employees right now:

  • Allow loans and hardship distributions from your 401(k) plan to Harvey victims and members of their families under streamlined loan procedures and liberalized hardship distribution rules recently announced by the IRS.

  • Consider providing no-interest or low-interest loans to employees. Keep in mind that such loans must be properly documented and will result in some additional taxable income to the employee.

  • Consider implementing a paid time off (PTO) leave-sharing program. Although it would require some additional administrative time for an employer, this approach doesn’t require any additional out-of-pocket money for employers, and special IRS rules allow employees to donate PTO tax-free in the case of a major disaster.

The need for quick action in disaster situations understandably often prompts a “Ready! Fire! Aim!” response, but hasty actions can have unexpected consequences for both employers and employees. The good news is that there are viable options available to concerned employers, both to facilitate donations from employees, to fund relief payments, and to provide other help to affected employees through existing benefit plans and programs.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume VII, Number 248

About this Author

Aimee Dreiss, Ogletree Deakins Law Firm, Employee Benefits Attorney

Ms. Dreiss counsels clients regarding qualified retirement plans, health and welfare plans and executive compensation plans. She assists clients with voluntary IRS and DOL qualified plan correction programs, and applications for tax-qualification status. Ms. Dreiss advises employers on federal and state income tax and employment tax matters, and advises employers on Health Care Reform compliance and transition planning issues. She has experience representing clients on employee benefits issues in mergers and acquisitions, and counseling plan fiduciaries regarding ERISA...

Timothy Verrall, Ogletree Deakins Law Firm, Data Privacy and Employment Law Attorney

Timothy G. Verrall is a shareholder in the Houston office of Ogletree Deakins where he advises a diverse range of clients on a wide variety of employee benefit plan issues arising under ERISA, the Internal Revenue Code, and related federal and state laws including the following:

  • Employee Benefit Plan Design & Administration. Representation of public, private, non-profit, and governmental employers in connection with the design, implementation, and administration of retirement, health and welfare...

Eric Penkert, Ogletree Deakins Law Firm, Greenville, Labor and Employment Attorney

Mr. Penkert graduated from the University of Florida in 2007. He received his J.D. from Vanderbilt University Law School in 2010. In 2011, Mr. Penkert graduated from the University of Florida Levin College of Law with an LL.M. in Taxation. Mr. Penkert practices in the areas of employee benefits law, ERISA, and taxation. Mr. Penkert’s practice includes representation in the areas of qualified plans, fringe benefits, and compliance with other federal laws relating to employee benefits matters. Mr. Penkert assists clients in designing and drafting plans, advises clients...