[Federal Register Volume 62, Number 1 (Thursday, January 2, 1997)]
[Rules and Regulations]
[Pages 22-25]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32669]


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DEPARTMENT OF THE TREASURY
26 CFR Parts 31 and 602

[TD 8706]
RIN 1545-AR67


Electronic Filing of Form W-4

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Final regulations.

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SUMMARY: This document contains final regulations relating to Form W-4, 
Employee's Withholding Allowance Certificate. The final regulations 
authorize employers to establish electronic systems for use by 
employees in filing their Forms W-4. The regulations provide employers 
and employees with guidance necessary to comply with the law. The 
regulations affect employers that establish electronic systems and 
their employees.

EFFECTIVE DATE: These final regulations are effective January 2, 1997.

FOR FURTHER INFORMATION CONTACT: Karin Loverud, (202) 622-6060 (not a 
toll-free number).

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

    The collection of information contained in these final regulations 
has been reviewed and approved by the Office of Management and Budget 
in accordance with the Paperwork Reduction Act (44 U.S.C. 3507) under 
control number 1545-1435. Responses to this collection of information 
are mandatory.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless the collection of 
information displays a valid control number.
    The estimated annual burden per respondent is 20 hours.
    Comments concerning the accuracy of this burden estimate and 
suggestions for reducing this burden should be sent to the Internal 
Revenue Service, Attn: IRS Reports Clearance Officer, T:FP, Washington, 
DC 20224, and to the Office of Management and Budget, Attn: Desk 
Officer for the Department of the Treasury, Office of Information and 
Regulatory Affairs, Washington, DC 20503.
    Books or records relating to this collection of information must be 
retained as long as their contents may become material in the 
administration of any internal revenue law. Generally, tax returns and 
tax return information are confidential, as required by 26 U.S.C. 6103.

Background

    On April 15, 1994, a notice of proposed rulemaking [EE-45-93] 
containing proposed regulations relating to Form W-4, Employee's 
Withholding Allowance Certificate, was published in the Federal 
Register (59 FR 18057).
    On December 21, 1994, temporary regulations (TD 8577) clarifying 
the existing proposed regulations were published in the Federal 
Register (59 FR 65712). A notice of proposed rulemaking (EE-45-93) 
cross-referencing the temporary regulations was published in the 
Federal Register for the same day (59 FR 65740).
    Written comments responding to these notices were received. Public 
hearings were requested and were held on July 15, 1994, and November 7, 
1995.
    After consideration of all the comments, the proposed regulations 
under section 3402(f) are adopted as revised by this Treasury decision. 
The comments and revisions are discussed below.

Explanation of Revisions and Summary of Comments

1. Relationship between paper and electronic Forms W-4

    A withholding exemption certificate (Form W-4) may be in either 
paper or electronic form. Therefore, an employee will furnish a Form W-
4 to the employer either on paper or electronically. To clarify that an 
electronic Form W-4 has the same status as a paper Form W-4, the final 
regulations make minor revisions to Sec. 31.3402(f)(5)-1, Form and 
contents of withholding exemption certificates. Further, the final 
regulations appear as Sec. 31.3402(f)(5)-1(c), rather than in a 
separate regulations section limited to electronic forms.

2. Electronic filing by all employees.

    The existing proposed and temporary regulations require employers 
that establish electronic systems to provide employees with the option 
of filing paper or electronic Forms W-4. Several commentators requested 
that employers be allowed to adopt systems under which all employees 
file Forms W-4 electronically. These commentators stated that a system 
under which all employees file electronically would reduce employer 
burden in terms of costs and time (for example, eliminate maintenance 
of duplicative paper and electronic systems). Similarly, it would 
reduce employee burden in terms of time and choosing a filing option.
    The IRS and Treasury want to assist in reducing burdens on both 
employers and employees and to make it as easy as possible for 
employers to adopt less burdensome systems. The final regulations 
permit an employer to adopt a system under which all employees file 
Forms W-4 electronically. The IRS and Treasury expect, however, that an 
employer will make a paper option reasonably available upon request to 
any employee who has a serious objection to using the electronic system 
or whose access to, or ability to use, the system may be limited (for 
example, as a result of a disability). The paper option would be 
satisfied, for example, if the employer informs employees how they can 
obtain a paper Form W-4 and where they should submit the completed 
paper Form W-4. The IRS and Treasury also expect that employers will 
comply with all applicable law

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governing the workplace and terms and conditions of employment, such as 
the Americans with Disabilities Act (42 U.S.C. 12112(a)). Compliance 
with these regulations does not guarantee that a system for filing 
Forms W-4 electronically is in compliance with those applicable laws.

3. Electronic Forms W-4

    Several commentators recommended that electronic systems be allowed 
for all Forms W-4 without exception. The prior proposed and temporary 
regulations specifically exclude (1) Forms W-4 required upon 
commencement of employment (initial Form W-4), and (2) Forms W-4 
required to be furnished to the IRS by employers because more than 10 
withholding exemptions are claimed or, if the employee is expected to 
earn more than $200 per week, exemption from withholding is claimed.
    Initial Form W-4. Section 3402(f)(2)(A) of the Internal Revenue 
Code (Code) requires a new employee to furnish the employer with a 
signed withholding exemption certificate. Section 6061 requires all 
Forms W-4 to be signed. See discussion below under ``5. Signature Under 
Penalties of Perjury'' and Sec. 301.6061-1(b), which states that the 
Secretary may prescribe in forms, instructions, or other appropriate 
guidance the method of signing any return, statement, or other document 
required to be made under any provision of the internal revenue laws or 
regulations. The final regulations permit electronic systems to include 
Forms W-4 required upon commencement of employment.
    Forms W-4 claiming more than 10 exemptions or exemption from 
withholding. Section 31.3402(f)(2)-1(g) requires employers to submit to 
the IRS copies of certain Forms W-4 furnished to them by their 
employees. The Forms W-4 required to be submitted are those on which 
the employee claims either (1) more than 10 withholding exemptions, or 
(2) exemption from withholding (and the employee is expected to earn 
more than $200 per week).
    Under Sec. 31.3402(f)(2)-1(g)(5), if the IRS determines that a Form 
W-4, a copy of which was submitted to the IRS, is defective, the IRS 
will notify in writing both the employer and the employee. (The notice 
is referred to as a ``lock-in letter.'') A Form W-4 is defective if (1) 
the IRS determines that the Form W-4 contains a materially incorrect 
statement, or (2) following communication with the employee, the IRS 
lacks sufficient information to determine whether the certificate is 
correct. The lock-in letter issued by the IRS advises the employer that 
the employee either is not entitled to claim exemption from withholding 
or is not entitled to claim more withholding exemptions than the number 
specified by the IRS in the notice, or both. If the employee 
subsequently files a new Form W-4, the employer may withhold on the 
basis of that new Form W-4 only if the new Form W-4 is consistent with 
the lock-in letter. The employer must continue to withhold on the basis 
of that advice until the IRS revokes in writing its lock-in letter.
    The final regulations permit electronic systems to include Forms W-
4 on which employees claim more than 10 withholding exemptions or 
exemption from withholding. However, the IRS and Treasury expect that 
electronic systems, alone or in conjunction with the rest of an 
employer's payroll system, will ensure compliance with the advice 
contained in a lock-in letter. For instance, an electronic system can 
ensure compliance with a lock-in letter by prohibiting an employee for 
whom a lock-in letter was issued from filing any electronic Form W-4 or 
prohibiting the employee from claiming more withholding exemptions than 
the number specified in the IRS notice. Additionally, an employer may 
choose to require any employee to file a paper Form W-4 if the employee 
wishes to claim more than 10 withholding exemptions or exemption from 
withholding.

4. Submission of Certain Forms W-4 to IRS

    Section 31.3402(f)(2)-1(g) requires employers to submit to the IRS 
copies of Forms W-4 on which the employee claims either more than 10 
withholding exemptions or exemption from withholding (and the employee 
is expected to earn more than $200 per week). Generally, the copies are 
sent quarterly to the IRS along with the employer's Form 941, 
Employer's Quarterly Federal Tax Return. Copies can also be submitted 
earlier and more often to the employer's IRS service center.
    Employers that establish electronic systems will satisfy the 
requirement of Sec. 31.3402(f)(2)-1(g) if they furnish the Form W-4 
information on magnetic media. Before using magnetic media, employers 
must submit Form 4419, Application for Filing Information Returns 
Magnetically/Electronically, to request authorization. Rev. Proc. 92-80 
(1992-2 C.B. 465) contains specifications for filing Forms W-4 on 
magnetic tape and on 5\1/4\- and 3\1/2\-inch magnetic diskettes. 
Electronic transmission of Form W-4 information to the IRS is not yet 
available.

5. Signature Under Penalties of Perjury

    Section 6061 of the Code requires that any return, statement, or 
other document required to be made under any provision of the Code or 
regulations be signed. Section 6065 requires that any such document 
contain or be verified by a written declaration that it is made under 
the penalties of perjury. These requirements apply to all Forms W-4, 
including those filed electronically, and are reflected in 
Sec. 31.3402(f)(5)-1(c)(iii) of the final regulations.
    Although sections 6061 and 6065 apply to all Forms W-4, the IRS and 
Treasury are concerned that some electronic systems established under 
the temporary regulations may not include a signature under penalties 
of perjury. The final regulations, therefore, include guidance on the 
perjury statement and the electronic signature.
    For certain Forms W-4, the final regulations treat the signature-
under-penalties-of-perjury-statement requirement as satisfied until 
January 1, 1999. This special rule applies only if the system precludes 
the electronic filing of Forms W-4 required upon commencement of 
employment and Forms W-4 claiming more than 10 withholding exemptions 
or exemption from withholding. Moreover, the special rule applies only 
to Forms W-4 filed electronically before the earlier of (1) January 1, 
1999, or (2) the first date on which the employer's electronic system 
permits the filing of Forms W-4 required upon commencement of 
employment or Forms W-4 claiming more than 10 withholding exemptions or 
exemption from withholding.
    The IRS and Treasury will consider written comments pertaining to 
the provisions relating to signatures under penalties of perjury. 
Submissions should be sent to: CC:DOM:CORP:R (TD 8706), room 5228, 
Internal Revenue Service, POB 7604, Ben Franklin Station, Washington, 
DC 20044. Alternatively, taxpayers may submit comments electronically 
via the Internet by selecting the ``Tax Regs'' option on the IRS Home 
Page, or by submitting comments directly to the IRS Internet site at 
http://www.irs.ustreas.gov/prod/tax__regs/comments.html. Submissions 
may be hand delivered between the hours of 8 a.m. and 5 p.m. to: 
CC:DOM:CORP:R (TD 8706), Courier's Desk, Internal Revenue Service, 1111 
Constitution Avenue NW, Washington, DC.

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6. Employer Retention of Forms W-4 and Predecessor and Successor 
Employers

    One commentator requested guidance concerning the period for which 
paper Forms W-4 are required to be retained under Sec. 31.6001-1(e) 
after the employer establishes an electronic system and in predecessor-
employer/successor-employer situations. Electronic Forms W-4 have the 
same status as paper Forms W-4. Therefore, guidance that applies to 
paper Forms W-4 also applies to electronic Forms W-4. For further 
information, see Rev. Proc. 91-59 (1991-2 C.B. 841) (information 
regarding the retention of records using a variety of automatic data 
processing systems); and section 5 of Rev. Proc. 96-60 (1996-53 I.R.B.) 
(predecessor/successor situations).

Special Analyses

    It has been determined that this Treasury decision is not a 
significant regulatory action as defined in EO 12866. Therefore, a 
regulatory assessment is not required. It also has been determined that 
section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) 
does not apply to these regulations, and, because the notice of 
proposed rulemaking preceding the regulations was issued prior to March 
29, 1996, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not 
apply. Pursuant to section 7805(f) of the Code, the notice of proposed 
rulemaking preceding these regulations was submitted to the Small 
Business Administration for comment on its impact on small business.

Drafting Information

    The principal author of these regulations is Karin Loverud, Office 
of the Associate Chief Counsel (Employee Benefits and Exempt 
Organizations), IRS. However, other personnel from the IRS and Treasury 
Department participated in their development.

List of Subjects

26 CFR Part 31

    Employment taxes, Income taxes, Penalties, Pensions, Railroad 
retirement, Reporting and recordkeeping requirements, Social Security, 
Unemployment compensation.

26 CFR Part 602

    Reporting and recordkeeping requirements.

Adoption of Amendments to the Regulations

    Accordingly, 26 CFR parts 31 and 602 are amended as follows:

PART 31--EMPLOYMENT TAXES AND COLLECTION OF INCOME TAX AT SOURCE

    Paragraph 1. The authority citation for part 31 is amended by 
adding an entry for section 31.3402(f)(5)-1 to read as follows:

    Authority: 26 U.S.C. 7805 * * * Section 31.3402(f)(5)-1 also 
issued under 26 U.S.C. 3402 (i) and (m). * * *

    Par. 2. Section 31.3402(f)(5)-1 is amended as follows:

1. Headings are added to paragraphs (a) and (b).
2. The fourth sentence of paragraph (a) is revised.
3. Paragraph (c) is added.
4. The authority citation which follows the end of the section is 
removed.

    The revisions and additions read as follows:


Sec. 31.3402(f)(5)-1  Form and contents of withholding exemption 
certificates.

    (a) Form W-4. * * * Blank copies of paper Forms W-4 will be 
supplied to employers upon request to the Internal Revenue Service. * * 
*
    (b) Invalid Form W-4. * * *
    (c) Electronic Form W-4--(1) In general. An employer may establish 
a system for its employees to file withholding exemption certificates 
electronically.
    (2) Requirements--(i) In general. The electronic system must ensure 
that the information received is the information sent, and must 
document all occasions of employee access that result in the filing of 
a Form W-4. In addition, the design and operation of the electronic 
system, including access procedures, must make it reasonably certain 
that the person accessing the system and filing the Form W-4 is the 
employee identified in the form.
    (ii) Same information as paper Form W-4. The electronic filing must 
provide the employer with exactly the same information as the paper 
Form W-4.
    (iii) Jurat and signature requirements. The electronic filing must 
be signed by the employee under penalties of perjury.
    (A) Jurat. The jurat (perjury statement) must contain the language 
that appears on the paper Form W-4. The electronic program must inform 
the employee that he or she must make the declaration contained in the 
jurat and that the declaration is made by signing the Form W-4. The 
instructions and the language of the jurat must immediately follow the 
employee's income tax withholding selections and immediately precede 
the employee's electronic signature.
    (B) Electronic signature. The electronic signature must identify 
the employee filing the electronic Form W-4 and authenticate and verify 
the filing. For this purpose, the terms ``authenticate'' and ``verify'' 
have the same meanings as they do when applied to a written signature 
on a paper Form W-4. An electronic signature can be in any form that 
satisfies the foregoing requirements. The electronic signature must be 
the final entry in the employee's Form W-4 submission.
    (iv) Copies of electronic Forms W-4. Upon request by the Internal 
Revenue Service, the employer must supply a hardcopy of the electronic 
Form W-4 and a statement that, to the best of the employer's knowledge, 
the electronic Form W-4 was filed by the named employee. The hardcopy 
of the electronic Form W-4 must provide exactly the same information 
as, but need not be a facsimile of, the paper Form W-4.
    (3) Effective date--(i) In general. This paragraph applies to all 
withholding exemption certificates filed electronically by employees on 
or after January 2, 1997.
    (ii) Special rule for certain Forms W-4. In the case of an 
electronic system that precludes the filing of Forms W-4 required on 
commencement of employment and Forms W-4 claiming more than 10 
withholding exemptions or exemption from withholding, the requirements 
of paragraph (c)(2)(iii) of this section will be treated as satisfied 
if the Form W-4 is filed electronically before January 1, 1999.


Sec. 31.3402(f)(5)-2T  [Removed]

    Par. 3. Section 31.3402(f)(5)-2T is removed.

PART 602--OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT

    Par. 4. The authority citation for part 602 continues to read as 
follows:

    Authority: 26 U.S.C. 7805.

    Par. 5. In Sec. 602.101, paragraph (c) is amended by:
    1. Removing the entry for 31.3402(f)(5)-2T from the table.
    2. Revising the entry for 31.3402(f)(5)-1 to read as follows:


Sec. 602.101  OMB Control numbers.

* * * * *
    (c) * * *

------------------------------------------------------------------------
                                                             Current OMB
     CFR part or section where identified and described      Control No.
------------------------------------------------------------------------
                                                                        
                  *        *        *        *        *                 
31.3402(f)(5)-1............................................    1545-0010
                                                               1545-1435

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    Approved: December 12, 1996.
Margaret Milner Richardson,
Commissioner of Internal Revenue.
Donald C. Lubick,
Acting Assistant Secretary of the Treasury.
[FR Doc. 96-32669 Filed 12-31-96; 8:45 am]
BILLING CODE 4830-01-U