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October 8, 2011

The IRS recently issued Notice 2011‐72 and a Memorandum for All Field Examination Operations, which provide a road‐map for employers to avoid taxing employees on cell phone expenses. Following the de‐listing of cell phones as “listed property” from Code section 274(d) last year, there has continued to be some uncertainty on the proper tax treatment of employer‐provided cell phones (and reimbursements of cell phone costs). This guidance, summarized below, clarifies the proper tax treatment and is retroactively effective for cell phone use after December 31, 2009.

The Notice provides the value of the business use of an employer‐provided cell phone is excludable from the employee’s income as a working condition fringe under Code section 132(d), provided that the cell phone is provided “primarily for non-compensatory business reasons.” Importantly, the substantiation requirements under Code section 162 are deemed to be satisfied.

In addition, the Notice provides that the value of any personal use of a cell phone provided by the employer primarily for non-compensatory business purposes is excludable from gross income as a de minimis fringe benefit under Code section 132(e).

A cell phone will be considered primarily for non-compensatory business reasons if there are substantial
reasons relating to the employer’s business, other than providing compensation to the employee, for providing the employee with a cell phone, including:

(1) Employer’s need to contact the employee at all times for work‐related emergencies,

(2) Employer’s requirement that the employee be available to speak with clients at times when the employee is away from the office

(3) Employee’s need to speak with clients located on other time zones outside the employee’s normal work

In contrast, a cell phone will be considered provided for a compensatory business reason (and thus taxable)
if it is provided:

(1) To promote the morale or good will of the employee,

(2) To attract a prospective employee

(3) As a means of furnishing additional compensation to the employee.

10-07-2011. Employee Benefit News.

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