Business team reviewing data charts

Increased Penalties for Forms 3921 and 3922

October 02, 2016

A riddle: what do the Trade Adjustment Assistance Program, the African Growth and Opportunity Act, and HOPE for Haiti have to do with Forms 3921 and 3922?  You might think "not much" but then you aren't a member of Congress.  The Trade Preferences Extension Act, which includes provisions relating to those three things and a couple of other global trade-related items, also increases the penalties for failure to file Forms W-2 and forms in the 1099 series, which includes Forms 3921 and 3922 (why forms 3921 and 3922 are considered part of the "1099" series is another riddle for another day).

The New Penalties

Timing of Correct Filing     New Penalty
(Per Failure)
    New Annual Cap      Old Penalty
(Per Failure)
   Old Annual Cap
Within 30 days $50 $500,000 $30   $250,000
By Aug 1 $100 $1,500,000 $60   $500,000
After Aug 1 or never $250 $3,000,000 $100   $1,500,000
With intentional disregard,
regardless of timing
Min. of $500 uncapped Min. of $250   uncapped

 

Make That a Double

The penalties apply separately for returns filed with the IRS and the statements furnished to employees. If a company fails to do both, both the per-failure penalty and the cap is doubled.  Thus, if both the return and the employee statement are corrected/filed/furnished after Aug 1, that's a total penalty of $500, up to a maximum of $6,000,000.  If intentional disregard is involved, that's a minimum total penalty of $1,000 (and this amount could be higher) with no annual maximum.

Effective Date

The new penalties will be effective for returns and statements required after December 31, 2015, so these penalties will be in effect for 2015 forms that are filed/furnished early next year.

Penalties At Least As Interesting As the Trade Provisions?

Interestingly, when I Googled "Trade Preferences Extension Act," so I could figure out what the rest of the act was about, the first page of search results included as many articles about the new penalties as about the trade-related provisions of the act.

If you want to know what the rest of the act is about, here is a summary from the White House Blog. There's not a lot more to say about the penalties but if you want to spend some time reading about them anyway, here are summaries from Groom Law Group and PwC.

- Barbara

  • Barbara Baksa
    By Barbara Baksa

    Executive Director

    NASPP