May 24, 2022
IRS issues guidance on employer leave-based donation programs to aid victims of war in Ukraine
In Notice 2022-28, the IRS said cash payments made under employer leave-based donation programs for victims of the Russian invasion of Ukraine are not wages, are not included in gross income and cannot be claimed as charitable contributions by employees. However, employers may deduct these cash payments as charitable contributions or business expenses.
Leave donation programs
Under leave-based donation programs, employees can elect to forgo vacation, sick or personal leave in exchange for cash payments that the employer makes to IRC Section 170(c) charitable organizations.
These cash payments will not be treated as wages or otherwise be included in the employees' gross income of the if the payments are:
These cash payments should not be included in Box 1, 3 (if applicable), or 5 of Form W-2. In addition, employees may not claim a charitable contribution deduction under IRC Section 170 for the value of forgone leave.
Employers may deduct these cash payments in accordance with IRC Section 170 or IRC Section 162 if they otherwise meet the respective requirements.
In Notice 2020-46, the IRS gave similar guidance for cash payments made under leave-based donation programs for victims of the COVID-19 pandemic (see Tax Alert 2020-1574).
The relief provided in Notice 2022-28 is optional, and many employers will choose not to use it. Although virtually identical relief has been provided before for different situations, the IRS continues to view this relief as a limited exception to the general rule that an employee cannot avoid taxable wages by redirecting payments to a third party, even if that third party is a public charity.
For more information on charitable organizations and disaster relief, see the IRS website.