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What's in a name? A lot, if you manage a benefit plan.

01.18.21

This article is the first in a series to help employee benefit plan fiduciaries better understand their responsibilities and manage the risks of non-compliance with ERISA requirements.

On Labor Day, 1974, President Gerald Ford signed the Employee Retirement Income Security Act, commonly known as ERISA, into law. Prior to ERISA, employee pensions had scant protections under the law, a problem made clear when the Studebaker automobile company closed its South Bend, Indiana production plant in 1963. Upon the plant’s closing, some 4,000 employees—whose average age was 52 and average length of service with the company was 23 years—received approximately 15 cents for each dollar of benefit they were owed. Nearly 3,000 additional employees, all of whom had less than 10 years of service with the company, received nothing.

A decade later, ERISA established statutory requirements to preserve and protect the rights of employees to their pensions upon retirement. Among other things, ERISA defines what a plan fiduciary is and sets standards for their conduct.

Who is—and who isn’t—a plan fiduciary?
ERISA defines a fiduciary as a person who:

  1. Exercises discretionary authority or control over the management of an employee benefit plan or the disposition of its assets,
  2. Gives investment advice about plan funds or property for a fee or compensation or has the authority to do so,
  3. Has discretionary authority or responsibility in plan administration, or
  4. Is designated by a named fiduciary to carry out fiduciary responsibility. (ERISA requires the naming of one or more fiduciaries to be responsible for managing the plan's administration, usually a plan administrator or administrative committee, though the plan administrator may engage others to perform some administrative duties).

If you’re still unsure about exactly who is and isn’t a plan fiduciary, don’t worry, you’re not alone. Disagreements over whether or not a person acting in a certain capacity and in a specific situation is a fiduciary have sometimes required legal proceedings to resolve them. Here are some real-world examples.

Employers who maintain employee benefit plans are typically considered fiduciaries by virtue of being named fiduciaries or by acting as a functional fiduciary. Accordingly, employer decisions on how to execute the intent of the plan are subject to ERISA’s fiduciary standards.

Similarly, based on case law, lawyers and consultants who effectually manage an employee benefit plan are also generally considered fiduciaries.

A person or company that performs purely administrative duties within the framework, rules, and procedures established by others is not a fiduciary. Examples of such duties include collecting contributions, maintaining participants' service and employment records, calculating benefits, processing claims, and preparing government reports and employee communications.

What are a fiduciary’s responsibilities?
ERISA requires fiduciaries to discharge their duties solely in the interest of plan participants and beneficiaries, and for the exclusive purpose of providing benefits for them and defraying reasonable plan administrative expenses. Specifically, fiduciaries must perform their duties as follows:

  1. With the care, skill, prudence, and diligence of a prudent person under the circumstances;
  2. In accordance with plan documents and instruments, insofar as they are consistent with the provisions of ERISA; and
  3. By diversifying plan investments so as to minimize risk of loss under the circumstances, unless it is clearly prudent not to do so.

A fiduciary is personally liable to the plan for losses resulting from a breach of their fiduciary responsibility, and must restore to the plan any profits realized on misuse of plan assets. Not only is a fiduciary liable for their own breaches, but also if they have knowledge of another fiduciary's breach and either conceals it or does not make reasonable efforts to remedy it.

ERISA provides for a mandatory civil penalty against a fiduciary who breaches a fiduciary responsibility under ERISA or commits a violation, or against any other person who knowingly participates in such breach or violation. That penalty is equal to 20 percent of the "applicable recovery amount" paid pursuant to any settlement agreement with ERISA or ordered by a court to be paid in a judicial proceeding instituted by ERISA.

ERISA also permits a civil action to be brought by a participant, beneficiary, or other fiduciary against a fiduciary for a breach of duty. ERISA allows participants to bring suit to recover losses from fiduciary breaches that impair the value of the plan assets held in their individual accounts, even if the financial solvency of the entire plan is not threatened by the alleged fiduciary breach. Courts may require other appropriate relief, including removal of the fiduciary.

Over the coming months, we’ll share a series of blogs for employee benefit plan fiduciaries, covering everything from common terminology to best practices for plan documentation, suggestions for navigating fiduciary risks, and more.

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Editor's note: Read this if you are a leader in higher education.

The Department of Education has released guidance to colleges and universities on how the CARES Act grants to institutions, under the Higher Education Emergency Relief Fund (HEERF), may be used. The guidance comes in the form of answers to frequently asked questions, which we recommend institutions read before accepting the funds. Some key answers included in the document:

  1. A school has to participate in the HEERF funding to be used for grants to students to get the institutional share.
  2. Schools can use these funds to cover the costs of refunds for room and board provided as a result of campus closure.
  3. These funds can be used to make additional emergency financial aid grants to students impacted by campus closure.

We urge schools to retain supporting documentation of the proper use of these funds to allow for a compliance audit, should that be required. 

Questions?
Please contact Renee Bishop, Sarah Belliveau, or Mark LaPrade. We’re here to help.

Article
The Higher Education Emergency Relief Fund (HEERF): Guidelines

BerryDunn’s Healthcare/Not-for-Profit Practice Group members have been working closely with our clients as they navigate the effect the COVID-19 pandemic will have on their ability to sustain and advance their missions.

We have collected several of the questions we received, and the answers provided, so that you may also benefit from this information. We will be updating our COVID-19 Resources page regularly. If you have a question you would like to have answered, please contact Sarah Belliveau, Not-for-Profit Practice Area leader, at sbelliveau@berrydunn.com.

The following questions and answers have been compiled into categories: stabilization, cash flow, financial reporting, endowments and investments, employee benefits, and additional considerations.

STABILIZATION
Q: Is all relief focused on small to mid-size organizations? What can larger nonprofit organizations participate in for relief?
A:

We have learned that there is an as-yet-to-be-defined loan program for mid-sized employers between 500-10,000 employees. You can find information in the Loans Available for Nonprofits section (link below) of  the CARES Act as well as on the Independent Sector CARES Act web page, which will be updated regularly.

Q: Should I perform financial modeling so I can understand the impact this will have on my organization? Things are moving so fast, how do I know what federal programs are available to provide assistance?
A:

The first step in developing a short-term model to navigate the next few months is to gain an understanding of the programs available to provide assistance. These resources summarize some information about available programs:

Loans Available for Nonprofits in the CARES Act
Families First Coronavirus Response Act (FFCRA): FAQs for Businesses
CARES Act Tax Provisions for Not-for-Profit Organizations

The next step is to develop scenarios ranging from best case to worst case to analyze the potential impact of revenue and/or cost reductions on the organization. Modeling the various options available to you will help to determine which program is best for your organization. Each program achieves a different objective – for instance:

  • The Paycheck Protection Program can assist in retaining employees in the short term.
  • The Emergency Economic Injury Grants are helpful in covering a small immediate liquidity need.
  • The Small Business Debt Relief Program provides aid to those concerned with making SBA loan payments.

Additionally, consider non-federal options, such as discussing short-term deferrals with your current bank.

Q: How should I create a financial forecast/model for the next year?
A:

If you have the benefit of waiting, this is likely a time period in which it makes sense to delay significant in-depth forecasting efforts, particularly if your business environment is complicated or subject to significantly volatility as a result of recent events. The concern with beginning to model for future periods, outside of the next three-to-six months, is that you’ll be using information that is incomplete and ever-changing. This could lead to snap judgments that are short-term in nature and detrimental to long-term planning and success of your organization. 

With that said, we recognize that delaying this analysis will be unsettling to many CFOs and business managers who need to have a strategy moving forward. In developing this model for next year, consider the following elements of a strong model:

  1. Flexible and dynamic – Allow room for the model to adapt as more information is available and as additional insight is requested by your constituents (board members, department heads, lenders, etc.).
  2. Prioritize – Start with your big-ticket items. These should be the items that drive results for the organization. Determine what your top two to three revenue and expense categories are and focus on wrapping your arms around the future of those. From there, look for other revenue and expense sources that show correlation with one of the big two to three. Using a dynamic model, these should be automatically updated when assumptions on correlated items change. Don’t waste time on items that likely don’t impact decision making. Finally, build consensus on baseline assumptions, whether it be through management or accounting team, the board, or finance committee.
  3. Stress-test – Provide for the reality that your assumptions, and thus model, will be wrong. Develop scenarios that run from best-case to worst-case. Be honest with your assumptions.
  4. Identify levers – As you complete stress-testing, identify your action plan under different circumstances. What are expenditures that can be deferred in a worst-case scenario? What does staffing look like at various levels?
  5. Cash is king – The focus on forecasting and modeling is often on the net income of the organization and the cash flows generated. In a time such as this, the exercise is likely to focus on future liquidity. Remember to consider your non-income and expense items that impact cash flow, such as principal payments on debt service, planned additions to property & equipment, receipts on pledge payments, and others.  
CASH FLOW
Q: How can I alleviate cash flow strain in the near term?
A:

While the House and Senate have reacted quickly to bring needed relief to individuals and businesses across the country, the reality for most is that more will need to be done to stabilize. Operationally, obvious responses in the short term should be to eliminate all nonessential purchasing and maximize the billing and collection functions in accounts receivable. Another option is to utilize or increase an existing line of credit, or establish a new line of credit, to alleviate short term cash flow shortfalls. Organizations with investment portfolios can consider the prudence of increasing the spending draw on those funds. Rather than making a few drastic changes, organizations should take a multi-faceted approach to reduce the strain on cash flow while protecting the long term sustainability of the mission.

Q: How can I increase my organization’s reach to help with disaster relief? If we establish a special purpose fund, what should my organization be thinking about?
A:

Many organizations are looking for ways to increase their direct impact and give funding to individuals or organizations they may not have historically supported. For those who are want to expand their grant or gift making or want to establish a disaster relief fund, there are things to consider when doing so to help protect the organization. The nonprofit experts at Hemenway & Barnes share their thoughts on just how to do that.

FINANCIAL REPORTING
Q: What accounting standards have been delayed or are in the process of being delayed?
A:

FASB:
The $2.2 trillion stimulus package includes a provision that would allow banks the temporary option to delay compliance with the current expected credit losses (CECL) accounting standard. This would be delayed until the earlier end of the fiscal year or the end of the coronavirus national emergency.

GASB:
On March 26, 2020, the Governmental Accounting Standards Board (GASB) announced it has added a project to its current technical agenda to consider postponing all Statement and Implementation Guide provisions with an effective date that begins on or after reporting periods beginning after June 15, 2018. The GASB has received numerous requests from state and local government officials and public accounting firms regarding postponing the upcoming effective dates of pronouncements as these state and local government offices are closed and officials do not have access to the information needed to implement the Statements. Most notably this would include Statement No. 84, Fiduciary Activities, and Statement No. 87, Leases.

The Board plans to consider an Exposure Draft for issuance in April and finalize the guidance in May 2020.

ENDOWMENTS AND INVESTMENTS 
Q: What should I consider with regard to endowments?
A:

Many nonprofits with endowments are considering ways to balance an increased reliance on their investment portfolios with the responsibility to protect and preserve the spending power of donor-restricted gifts. Some things to think about include the existence (or absence) of true restrictions, spending variations under the Uniform Prudent Management of Institutional Funds Act (UPMIFA) applicable in your state, borrowing from an endowment, or requesting from the donor the release of restrictions. All need to be balanced with the intended duration and preservation of the endowment fund. Hemenway & Barnes shares their thoughts relative to the utilization of endowments during this time of need.

EMPLOYEE BENEFITS
Q: We are going to suspend our retirement plan match through June 30, 2020 and I picked a start date of April 1st. What we need help with is our bi-weekly payroll (which is for HOURLY employees). Their next pay date is April 3rd, for time worked through March 28th. Time worked March 29-31 would be paid on April 17th. How should we handle the match during this period for the hourly employees?
A:

The key for determining what to include for the matching calculation is when it is paid, not when it was earned. If the amendment is effective April 1st, then any amounts paid after April 1st would not have matching contributions calculated. This means that the amounts paid on April 3rd would not have any matching contributions calculated.

Q: Can you please provide guidance on the Families First Coronavirus Response Act (FFCRA) and how it may impact my organization?
A:

On March 30th, BerryDunn published a blog post to help answer your questions around the FFCRA.

If you have additional questions, please contact one of our Employee Benefit Plan professionals

ADDITIONAL CONSIDERATIONS
Q: I heard there was going to be an incentive for charitable giving in the new act. What's that all about?
A:

According to Sections 2204 and 2205 of the CARES Act:

  • Up to $300 of charitable contributions can be taken as a deduction in calculating adjusted gross income (AGI) for the 2020 tax year. This will provide a tax benefit even to those who do not itemize.
  • For the 2020 tax year, the tax cap has been lifted for:
    • Individuals-from 60% of AGI to 100%
    • Corporations-annual limit is raised from 10% to 25% (for food donations this is raised from 15% to 25%)
Q: Have you heard if the May 15th tax deadline will be extended?
A:

Unfortunately, we have not heard. As of April 6th, the deadline has not been extended.

Q: Could you please summarize for me the tax provisions in the CARES Act that you think are most applicable to not-for-profits?
A: Absolutely! Our not-for-profit tax professionals have compiled this document, which provides a high-level outline of tax provisions in the CARES Act that we believe would be of interest to our clients.

We are here to help
Please contact the BerryDunn not-for-profit team if you have any questions, or would like to discuss your specific situation.

Article
COVID-19 FAQs—Not-for-Profit Edition

Read this if you are an employer looking for more information on the Employee Retention Credit (ERC).

The IRS on April 2, 2021, issued additional guidance for employers claiming the employee retention credit (ERC) under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), as modified in December 2020 by the Taxpayer Certainty and Disaster Tax Relief Act of 2020 (Relief Act). The ERC is designed to help eligible businesses retain employees by offering a credit against employment taxes when qualified wages and healthcare expenses are paid during the COVID-19 pandemic.
 
Notice 2021-23 provides additional guidance for taxpayers to use when preparing credit claims and explains the changes to the employee retention credit for the first two calendar quarters of 2021, including:

Increased credit amount 

  • Eligible employers may now claim a refundable tax credit against the employer share of Social Security tax equal to 70% of the qualified wages and qualified health plan expenses paid to employees after December 31, 2020 and before January 1, 2022.
  • The maximum employee retention credit available is $7,000 per employee per calendar quarter, for a total of $28,000 for all four calendar quarters of 2021.

Broadened eligibility requirements 

  • Employers who suffered a greater than 20% decline in quarterly gross receipts compared to the same calendar quarter in 2019 are now eligible.
  • A safe harbor is provided allowing employers to use prior quarter gross receipts compared to the same quarter in 2019 to determine eligibility. For example, for the first calendar quarter of 2021, an employer may elect to use its gross receipts for the fourth quarter of 2020 compared to those for the fourth calendar quarter of 2019 to determine if the decline in gross receipts test is met.
  • Employers not in existence in 2019 may compare 2021 quarterly gross receipts to 2020 quarters to determine eligibility.
  • The credit is available to some government instrumentalities, including colleges, universities, amd organizations providing medical or hospital care and certain organizations chartered by Congress.

Determination of qualified wages 

  • Employers with 500 or fewer full-time employees in 2019 may include all wages and health plan expenses as “qualified wages.”
  • The Relief Act strikes the limitation that qualified wages paid or incurred by an eligible employer with respect to an employee may not exceed the amount that employee would have been paid for working during the 30 days immediately preceding that period (which, for example, allows employers to take the ERC for bonuses paid to essential workers).

Items to consider

It is extremely important that employers refer to the various form instructions to ensure they are eligible for and claiming the correct amount of credits. The IRS issued the following common errors that employers should avoid in COVID Tax Tip 2021-64:

  • Ensure line 1 on Form 941-X is accurate (refer to Line 1 instructions).
  • Report advanced credits actually received, not the requested payment of credits on Form 941, Line 13f.
  • Use Form 7200 to request the advance payment of a credit only, not for reporting the credit.
    • Employers use this form to request the advance payment of employer credit. It is not used to claim the credit. An employer must claim the credit on the applicable employment tax return, typically Form 941.
    • If an employer has received the advance payment requested, they must reconcile it on Form 941 by reporting the advance payments received and claiming the credits for which they're eligible.
    • If an employer receives an advance payment of a credit but doesn't claim a corresponding credit on their employment tax return, they may receive a balance due notice.
    • If an employer filed an employment tax return and did not report a credit they were otherwise entitled to, they will need to file an amended return using Form 941-X to claim those eligible credits. 
  • Complete all lines associated with the credit being claimed on Form 941-X. For example, if an employer is amending a return to claim additional employee retention credits, they must complete the lines that relate to qualified wages for the credit and qualified health plan expenses allocable to those wages, if applicable.

Final thoughts

Employers have an opportunity to plan for how they will allocate qualified wages and health care expenses for the ERC from wages covered by PPP loan proceeds. Careful planning could result in additional monies available to the employer. IRS Notice 2021-20 includes guidance on the interplay between the PPP and ERC. Lastly, employers should consider whether to request a refund or reduce future deposits when filing Form 941 to claim the ERC. Reducing future deposits may provide a more immediate benefit to cash flow.

For more information

If you have more questions, or have a specific question about your particular situation, please call us. We’re here to help. 

Article
Employee Retention Credit: Additional guidance for employers claiming it under the CARES Act

Read this if you are working with an auditor.

The standard report an auditor issues on an entity’s financial statements was created in 1988, and has only had minor tweaking since. Amazing when we think about how the world has changed since 1988! Back then:

  • The World Wide Web hadn’t been invented
  • The Simpsons wasn’t yet on TV, and neither was Seinfeld
  • The Berlin Wall was still standing
  • The Single Audit Act celebrated its fourth birthday

The Auditing Standards Board (ASB), an independent board of the American Institute of CPAs (AICPA) that establishes auditing rules for not-for-profit organizations (as well as private company and federal, state, and local governmental entities) has decided it was high time to revisit the auditor’s report, and update it to provide additional information about the audit process that stakeholders have been requesting.

In addition to serving as BerryDunn’s quality assurance principal for the past 23 years, I’ve been serving on the ASB since January 2017, and as chair since May 2020. (And thanks to the pandemic our meetings during my tenure as chair have been conducted from my dining room table.)  We thought you might be interested in a high-level overview of the coming changes to the auditor’s report, which will be effective starting with calendar 2021 audits, from an insider’s perspective.

So what’s changing?

The most significant changes you’ll be seeing, based on feedback from various users of auditor’s reports, are:

  1. Opinion first
    The opinion in an audit report is the auditor’s conclusion as to whether the financial statements are in accordance with the applicable accounting standards, in all material respects. People told us this is the most important part of the report, so we’ve moved it to the first section of the report.
  2. Auditor’s ethical responsibilities
    We’ve pointed out that an auditor is required to be independent of the organization being audited, and to meet certain other ethical responsibilities in the conduct of the audit.
  3. “Going concern” responsibilities
    We describe management’s responsibility, under U.S. generally accepted accounting principles, and the auditor’s responsibility, under the auditing rules, for determining whether “substantial doubt” exists about the organization’s ability to continue in existence for at least one year following the date the financial statements are approved for issuance.
  4. Emphasis on professional judgment and professional skepticism
    We explain how an audit requires the auditor to exercise professional judgment (for example, regarding how much testing to perform), and to maintain professional skepticism, i.e., a questioning mind that is alert to the possibility the financial statements may be materially misstated, whether due to error or fraud.
  5. Communications with the board of directors
    We point out that the auditor is required to communicate certain matters to the board, such as difficulties encountered during the audit, material adjustments identified during the audit process, and which areas the auditor treated as “significant risks” in planning and performing the audit.
  6. Responsibility related to the “annual report”
    If the organization issues an “annual report” containing or referring to the audited financial statements, we explain the auditor is required to review it for consistency with the financial statements, and for any known misstatements of fact.
  7. Discussion of “key audit matters”
    While not required, your organization may request the auditor to discuss how certain “key audit matters” (those most significant to the audit) were addressed as part of the audit process. These are similar to the “critical audit matters” publicly traded company auditor’s reports are now required to include.

Yes, this means the auditor’s report will be longer; however, stakeholders told us inclusion of this information will make it more informative, and useful, for them.

Uniform Guidance standards also changing

Is your organization required to have a compliance audit under the federal Uniform Guidance standards? That report is also changing to reflect the items listed above to the extent they’re relevant.

What should you do?

Some actions to consider as you get ready for the first audit to which the new report applies (calendar 2021, or fiscal years ending in 2022) include:

  1. Ask your auditor what your organization’s auditor’s report will look like
    Your auditor can provide examples of auditor’s reports under the new rules, or even draft a pro forma auditor’s report for your organization (subject, of course, to the results of the audit).
  2. Outline and communicate your process for developing your annual report
    If your organization prepares an annual report, it will be important to coordinate its timing with that of the issuance of the auditor’s report, due to the auditor’s new reporting responsibility related to the annual report.
  3. Discuss with your board whether you would like the auditor to include a discussion of “key audit matters” in the auditor’s report
    While not required for not-for-profits, some organizations may decide to request the auditor include a discussion of such matters in the report, from the standpoint of transparency “best practices.”

If you have any questions about the new auditor’s report or your specific situation, please contact us. We’re here to help.
 

Article
A new auditor's report: Seven changes to know

Read this if your company does business in the EU.

Major changes are coming to the EU VAT laws on the online supply of goods and services. The rules, which apply as from July 1, 2021, will affect U.S.-based businesses selling or facilitating sales to private individuals in EU member states. With just over a month remaining before the rules become effective, such businesses should begin immediately to prepare for their new VAT registration and collection responsibilities.

What are the new EU VAT rules?

The EU VAT rules applicable to cross-border B2C e-commerce activities are undergoing a major “refresh”—or modernization—as from July 1, 2021 (postponed six months from the originally planned effective date of January 1, 2021). From July, updated VAT rules will apply to online sales (including online marketplaces) to EU private consumers and to the import of low value goods. (The European Commission published explanatory notes on the rules on September 20, 2020, which include clarifications, FAQs and examples.)

The objectives of the new EU VAT rules are to: (i) simplify compliance obligations for vendors that potentially have to comply with the VAT rules in the 27 EU member states; (ii) increase VAT revenue for the individual member states by bringing more transactions within the scope of the EU VAT net; and (iii) reduce VAT fraud.

Any business making or facilitating online sales or deliveries of goods to consumers in the EU will likely be impacted in some way by the changes.

The EU VAT law changes are as follows:

Intra-EU sales to consumers

All B2C sales of goods will be taxed in the country of destination, meaning that sellers will need to collect VAT in the EU member state to which the goods are shipped.

The existing thresholds for distance sales in the EU will be abolished and replaced by an EU-wide registration threshold of €10,000 (approximately $12,000). This is an important change and potentially could create considerable EU VAT registration and reporting obligations for U.S.-based businesses selling goods from warehouses located in the EU if not proactively addressed.

To reduce the administrative burden and simplify VAT reporting, a new reporting system, called the One-Stop Shop (OSS) will be expanded to include the distance sale of goods. U.S. businesses can register for the OSS scheme in the EU member state of dispatch and can report and remit the VAT due via a pan-EU VAT return instead of having to VAT register in each EU member state.

Sales via online marketplaces

In certain circumstances, businesses that operate an online marketplace, known as an “electronic interface” in the EU) or that facilitate the sale of third-party goods through an online marketplace will be considered the “deemed supplier” of the goods sold to EU customers and will be required to collect and pay VAT on such sales. As a result, businesses that sell via online marketplaces (e.g., Amazon, eBay, etc.) will not be required to account for VAT on such sales. 
Imports of low value goods

The VAT exemption for “low-value imports,” i.e., goods coming from outside the EU that do not exceed a value of €22 (approximately $26) will be abolished. Instead, the sale of low-value goods not exceeding €150 (approximately $180) to consumers in the EU through the business’ own website will be subject to VAT at the applicable rate in the destination country. The VAT due on low value goods can either be collected at the point of sale by the seller or collected from the consumer before the goods are released by the customer broker/delivery service. Where the seller opts to collect VAT at the point of sale, it can VAT register under the new Import One-Stop Shop (IOSS) system to account for and remit the VAT due.

VAT registration under the IOSS has several benefits, including:

  • Transparency to consumers: The customer will not be faced with any unexpected VAT costs since the total amount paid for the goods is VAT-inclusive;
  • Reduced compliance burden: Sellers can use a single IOSS registration to report and pay the VAT due on all sales covered by IOSS. Otherwise, if the seller acts as the importer (e.g., sells goods under delivered duty paid terms), it may need to register for VAT in multiple EU member states;
  • Quick customs clearance: IOSS is designed to enable goods to be cleared through customs quickly as no VAT is due at the time of importation, thus facilitating the speedy delivery of goods; and
  • Flexible logistics: IOSS simplifies logistics since goods can be imported into the EU in any EU member state. If IOSS is not used, goods can only be imported and cleared for customs in the destination EU member state, which may result in delays and additional costs.

How will the changes impact nonresident sellers?

As noted above, the EU rule changes will significantly affect U.S.-based businesses selling or facilitating the sale of goods and services online to consumers located in the EU. With just over a month left before the rules become effective, any U.S.-based business that may be impacted should take immediate steps to:

  • Understand the EU rules and how they will apply;
  • Assess the impact of the rules on supply chains;
  • Consider the impact on pricing due to different VAT rates applying in different jurisdictions;
  • Identify any adjustments that can be made (where possible) to mitigate the impact of the rules;
  • Be prepared to comply with new VAT obligations, including additional registrations, charging and collecting VAT, filing tax and/or information returns, etc.;
  • Update and adapt accounting and billing systems and master data records to identify when VAT should be applied and the appropriate rates in multiple jurisdictions; and
  • Cancel existing EU VAT registrations for distance sales that may be replaced by the OSS registration.

Failure to comply with the rules could result in the imposition of interest and penalties on the historic VAT liability. In addition to the EU VAT consequences, business selling goods that are imported into these jurisdictions must also take into account any customs implications because any compliance deficiencies could result in imported goods being delayed in customs, causing customers to be frustrated by shipping delays.

For questions about your specific situation, please contact the International Tax team. We’re here to help. 

Article
New VAT rules in the EU: What U.S. e-commerce businesses need to know 

Read this if your company does business in Canada. 

Major changes are coming to Canada’s Goods and Services Tax/Harmonized Services Tax (GST/HST) on the online supply of goods and services. The rules, which apply as from July 1, 2021, will affect U.S.-based businesses selling or facilitating sales to private individuals in Canada. With just over a month remaining before the rules become effective, such businesses should begin immediately to prepare for their new GST/HST registration and collection responsibilities.

What are the GST/HST changes in Canada?

Currently, only nonresidents that carry on business in Canada are generally required to register for and collect GST/HST (levied at the federal level in Canada) on taxable supplies of goods and services made in Canada. If the nonresident does not conduct business in Canada, it need not register for or collect GST/HST.

The impending rules aim to level the playing field between Canadian businesses (which must charge GST/HST on the supply of goods and services) and foreign suppliers by ensuring that GST/HST applies to all goods and services used in Canada, regardless of how they are supplied or whether the supplier is Canadian or nonresident. The rules will significantly impact nonresident vendors and online platform operators, in that foreign businesses will be required to register for GST/HST, collect GST/HST from customers, and report and remit tax to the Canadian tax authorities. Three types of supplies by foreign businesses will be affected:

  • Supplies of digital services
  • Supplies of accommodation made through an accommodation platform (AP)
  • Online supplies of goods through a fulfilment warehouse

Digital services

Foreign businesses and platforms that do not have a physical place of business in Canada but that supply goods and services online to Canadian consumers and/or non-GST/HST-registered businesses (i.e., B2C transactions) will be required to register for GST/HST, resulting in an obligation to collect, remit and report tax. The tax rate will be the rate applicable in the province where the consumer is resident.

Nonresident businesses will have to register for GST/HST purposes when their sales exceed CAD 30,000 (approximately USD 25,000) over a 12-month period or they may register voluntarily where the threshold is not exceeded. A simplified online registration will be available for these businesses, but it will not be possible for the nonresident business to reclaim GST/HST incurred on its own purchases. If nonresident businesses wish to recover GST/HST paid on business expenses, they may be able to register under the regular GST/HST regime.

Accommodation platforms

An AP is a digital platform that facilitates the supply of short-term rental accommodations (i.e., rentals for less than one month) to private customers for a price of at least of CAD 20 (approximately USD 16) per day (e.g., Airbnb, VRBO, etc.).

Nonresident APs will be required to register for GST/HST, and to collect, remit and report tax on the rental charges in cases where the owner of the property is not GST/HST-registered. Where the property owner is GST/HST registered, the AP will not be responsible for GST/HST; instead, the property owner will be required to collect/remit GST/HST on the rental charges. The GST/HST rate will be the rate applicable in the province where the property is located.

APs subject to these changes should register for GST/HST under the simplified online registration.

Fulfilment warehouses and websites

GST/HST registration will be required for the following types of transactions in cases where the nonresident business’ sales to consumers exceed, or are expected to exceed, CAD 30,000 over a 12-month period:

  • Direct sales of goods by a nonresident business directly (i.e., not via a distribution platform) through its website to Canadian consumers: In this case, the nonresident business will have to register, charge and account for GST/HST. 
  • Sales of goods by a nonresident business through a distribution platform to consumers in Canada: The distribution platform operator will be required to register for GST/HST and account for GST/HST in Canada. It should be noted that no GST/HST will be due on the service fee charged by the distribution platform operator to nonresident businesses.
  • Online sales of goods by a nonresident business (but not through a distribution platform) to customers, where the goods are located in a Canadian fulfilment warehouse: The nonresident business will be required to register for GST/HST and will need to keep records on its foreign vendors and submit these to the Canadian tax authorities. These information returns will give the tax authorities insight into which nonresident businesses need to be GST/HST-registered.

Nonresident businesses that carry out the above transactions will have to register under the standard GST/HST rules rather than under the new simplified regime and will generally be able to reclaim GST/HST incurred on their purchases.

Potential Provincial Sales Tax (PST) implications

In addition to having GST/HST registration and collection obligations, nonresident vendors also may be required to register for PST. Currently, British Columbia, Manitoba, Quebec, and Saskatchewan impose a PST, and three of these provinces (i.e., British Colombia, Quebec, and Saskatchewan) have introduced rules requiring nonresident vendors selling to customers in these provinces to register for PST purposes. The rules vary by province and will need to be considered in addition to the new GST/HST rules.

How will the changes impact nonresident sellers?

As noted above, the Canadian rule changes will significantly affect U.S.-based businesses selling or facilitating the sale of goods and services online to consumers located in Canada. With just over a month left before the rules become effective, any U.S.-based business that may be impacted should take immediate steps to:

  • Understand the Canadian rules and how they will apply;
  • Assess the impact of the rules on supply chains;
  • Consider the impact on pricing due to the GST/HST and the varying PST rates applied in in the aforementioned provinces;
  • Identify any adjustments that can be made (where possible) to mitigate the impact of the rules;
  • Be prepared to comply with new GST/HST obligations, including additional registrations, charging and collecting GST/HST, filing tax and/or information returns, etc.; and
  • Update and adapt accounting and billing systems and master data records to identify when GST/HST should be applied and the appropriate rates in multiple jurisdictions.

Failure to comply with the rules could result in the imposition of interest and penalties on the historic GST/HST liability. In addition to the GST/HST implications in Canada, business selling goods that are imported into these jurisdictions must also take into account any customs implications because any compliance deficiencies could result in imported goods being delayed in customs, causing customers to be frustrated by shipping delays.

For questions about your specific situation, please contact the International Tax team. We’re here to help. 

Article
New GST/HST rules in Canada: What U.S. e-commerce businesses need to know  

Read this if you are a plan sponsor of employee benefit plans.

This article is the sixth in a series to help employee benefit plan fiduciaries better understand their responsibilities and manage the risks of non-compliance with Employee Retirement Income Security Act (ERISA) requirements. You can read the previous articles here.

Plan sponsors have a fiduciary responsibility to provide oversight over the operations of employee benefit plans. This oversight involves a multitude of varying responsibilities. Failure to provide sufficient oversight can lead to non-compliance with rules and regulations. However, even if plan sponsors are providing sufficient oversight, lack of documentation of the oversight is arguably equally as severe as no oversight at all. Here are some common fiduciary responsibilities and how you should document them. 

Review of the report on service organization’s controls

Most employee benefit plans have outsourced a significant portion of the plan’s processes, and the internal controls surrounding those processes, to a service organization. Regardless of how certain plan-related processes are performed—internally or outsourced—the plan sponsor has a fiduciary responsibility to monitor the internal controls in place surrounding significant processes and to determine if these controls are suitably designed and effective. The most commonly outsourced processes of an employee benefit plan are the administration, including recordkeeping of the plan, through a third-party administrator; payroll processing; and actuarial calculations, if applicable to the plan.

When plan processes are outsourced to service organizations, generally the most efficient way to obtain an understanding of the outsourced controls is to obtain a report on controls issued by the service organization’s auditor. You should request the service organization’s latest System and Organization Controls Report (SOC 1 report). The SOC 1 report should be based on the Statement on Standards for Attestation Engagements No. 18, Reporting on the Controls at a Service Organization, frequently known as SSAE 18.

Plan sponsors should perform a documented review of the SOC 1 report for each of the plan’s service organizations. The documented review should most notably include discussion of any exceptions noted within the service auditor’s testing performed, identification of subservice organizations and consideration if subservice organization SOC 1 reports need to be obtained, and assessment of the complementary user entity controls outlined in the SOC 1 report. The complementary user entity controls are internal control activities that should be in place at the plan sponsor to provide reasonable assurance that the controls tested at the service organization provide the necessary level of internal control over the plan’s financial statements. Contact a BerryDunn professional to obtain our SOC report review template to assist in documenting your review.

Documentation of the plan within minutes

To provide general plan oversight, plan sponsors should have a group charged with the governance of the plan. This group should meet on a routine basis to review various aspects of the plan’s operations. Minutes of these meetings should contain evidence that certain matters that would be of interest to the Department of Labor (DOL) were discussed.

We recommend minutes of meetings document the following:

  • Investment performance—The plan sponsor has a fiduciary responsibility to ensure the investments offered by the plan are meeting certain performance expectations. Investment statements and the plan’s investment policy should be reviewed on a regular basis with documentation of this review retained in minutes of meetings. Any conclusions reached about the need to change investments or put an investment on a “watch-list” should also be documented in the minutes, including any additional steps that need to be taken.
  • SOC 1 report review—As noted above, the plan sponsor has a fiduciary duty to ensure all third-party service organizations utilized by the plan have suitably designed and effective internal controls. Plan sponsors should perform a documented review of the SOC 1 report for each of the plan’s service organizations. The results of these reviews should then be reported at plan oversight meetings with any subsequent actions or conclusions documented in the minutes to these meetings.
  • Reasonableness of fees—The DOL requires plan fiduciaries to determine if the fees charged under covered service provider agreements are reasonable in relation to the services provided. To determine the reasonableness of fees, the plan may (1) hire a consultant, (2) monitor industry trends regarding fees, (3) consult with peer companies, (4) use a benchmarking service, or (5) conduct a request for proposal. Failure to determine the reasonableness of the fees charged can result in a prohibited transaction. When doing such a review, the fiduciaries of the plan should document in the minutes the steps taken and conclusions reached.
  • Overall review of the plan—Plan sponsors have a fiduciary responsibility to review the activity of the plan as well as participant balances. We recommend plan sponsors implement and document monitoring procedures over the activities of the plan and participant balances. This review could be incorporated into documented self-testing procedures, by haphazardly selecting a sample of participants each quarter and reviewing their account activity and participant balances. The results of such self-testing should then be reported at plan oversight meetings with any subsequent actions or conclusions documented in the minutes to these meetings. Reach out to a BerryDunn professional to obtain our participant change review workbook to assist in performing this self-testing.

Retention of salary reduction agreements

During our audits of employee benefit plans, we often note that employee deferrals are not consistently supported by salary reduction agreements or other forms maintained in employees’ personnel files. Many third-party administrators allow participants to make changes to their elective deferral rates directly through the third-party administrators without the involvement of the plan sponsor.

We often recommend that you maintain all changes to employee elective deferral rates in employees’ personnel files using salary reduction agreements. We also recommend that employees’ elections to not participate in the plan be documented in their personnel file. If employees can elect to change their deferral rates directly with the third-party administrator, we typically recommend that management print support from the third-party administrator’s online portal as documentation to support the change in the employee’s deferral rate and retain this support in the employees’ personnel file. However, if the third-party administrator’s online portal provides adequate history of deferral election changes, the plan sponsor may be able to rely on this portal for documentation retention. In these instances, the plan auditor should request a deferral feedback report directly from the third-party administrator.  

Monitoring of inactive accounts

Inactive accounts should be monitored by the plan sponsor for unusual activity or excessive fees that may be posted to these accounts. To the extent that inactive accounts have not exceeded $5,000, consideration should be given to cashing out the accounts if allowed by the plan document. Plan sponsors should, on a periodic basis, review the accounts of inactive participants or those who have been separated from service to ascertain whether the changes and charges to those accounts appear reasonable.

Plan sponsors have many documentation responsibilities. This list is not meant to be all-inclusive. And, the facts and circumstances of each employee benefit plan will change the applicability of these items. However, this list should be used as a tool to help plan sponsors perform a deep dive of their current plan documentation processes. And, hopefully, a result of this deep dive will be a robust documentation process that deliberately documents all major decisions and review functions related to the plan.

Article
Plan documentation: Another key to successful oversight

Read this if you use QuickBooks Online.

Downloading them is the easy part. QuickBooks Online lets you work with downloaded transactions in numerous ways.

QuickBooks Online was built to import transactions from your online financial institutions. You can enter them manually but downloading them saves an enormous amount of time and minimizes errors. It also makes reconciliation much easier, since you can see which transactions have cleared without calling the bank or waiting for a printed statement.

Once they’re in QuickBooks Online, your transactions are stored in a list, waiting for you to further define and categorize each one. Let’s look at how you can work with them to make sure your records are as thorough as possible.

Getting connected to your bank and credit card accounts

As long as you have online access to your bank and credit card accounts, you can set up QuickBooks Online to import cleared transactions. Click the Transactions tab in the toolbar, then click Banking. On the next screen, click Connect account. You’ll see links to popular financial institutions on the next page. If yours isn’t listed, enter its name in the search box at the top of the screen. Follow the onscreen instructions to make your initial connection and start downloading transactions. 

When you’ve completed the connection, you can click Link account in the upper right to add more.

Dealing with transactions

After you set up a connection to a bank or credit card account, its account information will appear in a box on the Banking page.

Once you’ve finished adding accounts, you’ll still be on the Banking page. Each of your connected accounts will appear in a box that includes the balance and the number of transactions that need to be reviewed. There will probably be quite a few, dozens or hundreds, the first time you download, since most financial institutions send you 90 days’ worth the first time. Every time your accounts are updated after that, you’ll only get new ones that have cleared since your last connection.

Tip: QuickBooks Online generally updates once every day. If you want to see your new cleared transactions at any time, click Update in the upper right corner.

Click on any of the account boxes, and its list of downloaded transactions will appear below. Make sure that For review is highlighted. You’ll notice that each row has one of two icons at the far right. Review means that QuickBooks Online has not assigned a category to the transaction. Confirm means it has, and it wants you to either approve it or change it. Check these carefully. Sometimes QuickBooks Online gets it right, but not always.

Click on a transaction in the register to open its action box. Here’s a partial view:

QuickBooks Online allows you to add a great deal of information about each individual transaction in the register.

Categorize is checked by default, since this is the most common action you’ll take in the list. Click Find match if, for example, you received a payment on an outstanding invoice, or Record as transfer. We can help you work with the latter two options.

Select a Vendor/Customer and a Category (if QuickBooks Online hasn’t assigned one or it’s not the best one for that transaction). Click in the Billable box if you want to bill this transaction to a Customer/project. You can also Split transaction if you need to divide it between multiple categories and/or billing statuses.

There are several other options below the section pictured above that allow you to:

  • Add Tags.
  • Attach a file.
  • Create a Rule for how similar transactions should be recorded.
  • Exclude the transaction if you have, for example, a duplicate one or a personal expense.

Before you take either of the latter two actions, talk to us. We don’t want you to do anything that might adversely affect your bookkeeping.

When you’ve finished, click Confirm. The transaction will move from the For review list to the Categorized one. It will now appear in the register for that account.

Once you’ve confirmed a transaction, it moves into the Categorized list.

As you might imagine, it’s a good idea to keep up with your downloaded transactions so you have time to give each the attention it needs. We recommend you review them daily. Your transactions, of course, flow into your reports and taxes, so you want to be sure you’re categorizing them correctly. Contact our outsourced accounting team if you’d like help with this. We're here to help.

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Managing downloaded transactions in QuickBooks Online