Gross Income Outline

Gross Income

1. What is Income

1. Compensation for Services is Income. Section 61 requires that compensation paid for services be included in income, regardless of the form of the compensation. Thus, the FMV of stock, notes, or other property transferred to a person in exchange for that person’s services will be regarded as income. Royalties and other contingent-based compensation is also income.

2. Fringe Benefits: Background. Fringe benefits are “in kind benefits transferred to an employee.” They may be in addition to compensation or they may be essential to the performance of the employee’s job. Many fringe benefits are excluded from the income tax and excluded from the definition of “wages” for purposes of the federal employment taxes. In recent years, fringe benefits, including health and pension benefits, have accounted for an increasing percentage of employee compensation. They are also one of the largest tax expenditures.

3. Receipts Other Than Cash. Generally, the receipt of “property” would be taxable to the same extent as cash, but there are some exceptions. This may be because (1) the public would not accept treating the item as income or (2) valuation is difficult and excessive valuation would lead to inefficiencies.

4. Incidence of Tax or Tax Exemption. It is important to realize that a tax or tax exemption can burden or benefit a party other than the party nominally affected. State and local bonds are an example. The tax exemption on income from state and local bonds may primarily benefit the state and local governments that issue bonds, rather than the bondholder, because the state and local governments will be able to pay lower interest rates than they would otherwise have to pay to be competitive (N.B., however, that unless all purchasers of state and local bonds are in the top bracket, the state and local governments will not be able to capture the entire tax benefit). Similarly, the employer may be able to capture much of the benefit from the exemption of taxation on the employee’s fringe benefits, because the employer can provide fringe benefits worth 60% of the cash that the employee would otherwise demand and the employee will be indifferent.

5. Problems with Tax Exemption for Fringe Benefits: Equity, Efficiency, and Complexity. Equity. The tax exemption for fringe benefits creates problems of horizontal equity because there may be circumstances where similarly situated employees are taxed differently based on the percentage of their compensation that is in cash and the percentage that is in the form of tax-exempt fringe benefits. Efficiency. The tax exemption for fringe benefits may create problems of efficiency because the tax treatment of fringe benefits causes employers to offer wage and benefit packages that are very different from those that would obtain without the tax benefits. There may be deadweight loss—which occurs when an employee chooses a benefit that is worth less to him than its cost to the employer, but more than the after-tax benefit he would receive from receiving the cash value of the benefit. Complexity. The taxation of fringe benefits results in complexity because (1) it is difficult to distinguish in kind compensation from the provision of goods or services related to the employee’s work that also provides the employee with an incidental benefit; and (2) Congress has proven unwilling to accept the proposition that all noncash compensation designed to reward the employee for services rendered should be subject to income tax.

6. Taxed versus Tax-Exempt Fringe Benefits. Section 61 provides authority to tax fringe benefits paid as compensation. Section 83 also provides authority to tax “property transferred in connection with performance of services.” However, other provisions of the Code specifically exempt certain items from income. Section 132 excludes eight categories of work-related fringe benefits. And Section 119 excludes certain work-related meals and lodging.

In general, Section 132 attempts to distinguish between “working condition benefits”—which, although they benefit the employee, are provided to for a substantial non-compensatory business purpose—from “in kind compensation.”

Section 132 provides that the following items (among others) are excluded from gross income (and from payroll taxation):

(1) no-additional-cost service, a service that is the same type ordinarily sold to the public which is provided by the employer or another business with whom the employer has a written reciprocal agreement and which results in “no substantial cost (including foregone revenue)” to the employer;

(2) qualified employee discounts, discounts on merchandise (not including real property or personal property of a kind commonly held for investment) not exceeding the employer’s gross profit percentage, or discounts on services where the discount does not exceed 20% of the ordinary selling price

(3) working condition fringe, property or services that would be deductible as ordinary and necessary business expenses (under Section 162) if the employee had paid for them

(4) de minimis fringe, for property with such little value, taking into account the frequency with which similar fringe benefits (otherwise excludable as fringe benefits) are provided, as to make accounting for the benefits unreasonable or administratively impractical.

7. Valuation of Fringe Benefits. When a fringe benefit is included in income, its value is generally the FMV.

8. Dependent Care Fringe. Section 129 provides an exclusion for an employee for up to $5,000 in employer-provided dependent care services.

9. Surrogate Taxation. An alternative to the §132 approach would be to disallow the employer’s deduction for providing fringe benefits that appear to actually be compensation. This approach would not work with respect to the employees of tax-exempt employers, however.

10. Expense-Paid Trips. The Gotcher Court concluded that an expense-paid trip would not be taxable to an employee unless (1) there was...

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