According to two Harvard Law School professors (see below) Harvard’s initial handling of massive payroll error was misleading and inadequate.
- Did Havard’s tax error and resulting payroll mistakes violate Massachusetts Wage and Hour Laws?
- Does Harvard owe far more than it claims?
To: HLS Faculty and Staff
From: Professors Alvin Warren and Daniel Halperin
Date: February 4, 2014
Re: Major Harvard Tax Error
We write in response to requests for our views regarding a letter from the Harvard Benefits Office dated January 21, 2014 concerning Harvard supplemental life insurance. If you received this letter, it is because the University reported too much taxable income for you to the federal and state governments for one or more taxable years beginning in 2009. If you did not receive the letter, you need not read any further.
In our view, the letter misstates the law and is misleading as to both the scope of the problem and the University’s responsibility to make some 11,000 employees whole for a monumental mistake by the central administration. After reviewing the letter, we met with a group of responsible personnel in Harvard’s central administration. The good news is that we think that they understand just how misleading the letter is. Although nothing has been decided, they are also aware of our position that the University must make its faculty and staff whole for excess taxes we paid on more than $20,000,000 of income that we did not receive, but which was erroneously reported by Harvard to the federal and state governments on our W-2 forms.
These are the facts as provided to us by the central administration: Prior to 2009, the University’s pricing of supplemental life insurance resulted in some employees receiving what the IRS regarded as taxable subsidies that had to be reported as income. In 2009, the University changed the pricing of the insurance so that there were no more taxable subsidies. The Harvard administration nonetheless continued to report taxable income to the federal and state governments, as though no change had been made. This taxable income was included on employees’ W-2 forms, so we paid taxes on income that we did not receive. The central administration first became aware of possible overreporting in October 2013. The first communication to the faculty and staff regarding the issue was the January 21, 2014 letter.
The letter misstates the law. It says that “IRS regulations do not allow the University to assist you in filing for a state or federal income tax refund.” There is no such regulation.
The letter does not accurately present the scope of the problem. It says that “For many people, the amount of the over-reported income was less that $200 per year.” That is true, but for some employees, the amount exceeds $10,000. Nowhere is the total scope of the problem frankly presented. We were told in our meeting that more than 11,000 current and former employees are affected, with the total amount of overreported income exceeding $20,000,000. In our judgment, to mention in the letter only those employees for whom the amount involved is less than $200 per year is misleading as to the true extent of the problem.
The letter fails to reveal all of the years for which there is a problem. The letter only discusses 2011-13, but the overreporting also occurred in 2009 and 2010. This fact is obscured by the vague expression in the first paragraph, which states that the problem involves “several years prior to 2014.” The full scope of the years involved is never disclosed. The federal statute of limitations has run for 2009, so no refund can be claimed for that year unless an employee’s tax return is still open due to, for example, an audit. The federal statute of limitations for 2010 runs on April 15, 2014, but the administration does not believe it can provide corrected W-2 forms by then.
Most grievously, the letter fails to accept Harvard’s responsibility to make its employees whole for its monumental error. Although 11,000 Harvard employees were victims of the administration’s error, the only remedy presented in the letter is for each of the victims to file amended tax returns with the state and federal governments. The only “resources” offered in the “Frequently Asked Questions” that accompanied the letter are a couple of links to federal (not state) government tax sites.
In our view, Harvard has a responsibility to make its employees whole for its colossal error. For taxable year 2013 (for which returns are due on April 15, 2014) , the central administration hopes to send us corrected W-2 forms somewhat earlier than the March 21 date mentioned in the letter. As to earlier years, it seems to us that the only viable choices are as follows: (1) For years in which amended returns are precluded by the statue of limitations (2009 and 2010, depending on the circumstances), Harvard should offer to reimburse employees for the excess taxes they paid due to the University’s error. These amounts should be compounded to present value. (2) For years in which amended returns are possible, the University should offer employees either (a) reimbursement of excess taxes paid (again compounded to present value) or (b) free professional preparation of amended tax returns. The latter might be done in easily accessible locations on campus or by reimbursement of professional fees for faculty and staff who preferred to use a different return preparer. Some employees might, of course, prefer not to accept either offer and to prepare their own amended returns.
To do anything less than the steps described in the preceding paragraph would indicate that the central administration does not believe that it has an obligation to take responsibility for its errors. Nothing could be further from the core values of truth and honesty that infuse teaching and research at this University. At our meeting with the central administration, we expressed this view with considerable force.
Finally, if you want to see the amount that was overreported for you, it does not appear on your W-2 form. As indicated at the top of the second page of the “Frequently Asked Questions” that accompanied the January 21 letter, that information can be found in a year-to-date total on your December paycheck for each year.
February 7, 2014
You received a letter from the Harvard Benefits Office dated January 21 regarding an error in IRS Forms W-2 in which Harvard incorrectly reported imputed income on supplemental life insurance for you and others. I offer my sincere apologies for the error itself and for the failure of the initial letter to communicate effectively, including about the nature and scope of the problem, and Harvard’s proposed response.
I write now to correct inaccuracies in the letter, to inform you of steps Harvard will take to assist affected individuals, and to provide additional information in the interest of greater clarity and transparency that you have every right to expect.
The University began to investigate a possible error in reporting of imputed income in October 2013. The problem resulted from a change in the structure of the supplemental life insurance plan in 2009 which meant that income should no longer have been imputed for the benefit.
Overall, the income incorrectly reported for years 2009 through 2013 was significant, estimated to be in excess of $20M for approximately 11,000 affected former and current University employees, while the effect on individual employee’s taxes varied widely. For example, in 2013, the error resulted in less than $200 of imputed income for approximately 60% of affected employees. However, the annual impact was significantly greater for some over $1,000 of imputed income in 2013 for about 13% of those employees affected last year and over $10,000 of imputed income in 2013 for a small number of individuals.
The initial letter misstated the type of assistance the University is able to provide in rectifying the erroneously imputed income. We had intended the letter to note that the University itself could not apply for a state or federal income tax refund on an employee’s behalf. The letter instead said that the University could not assist employees in filing for a refund. This was not accurate. Indeed, the University can provide assistance and, as described below, is actively considering how best to do so.
The original communication did not include steps Harvard would take to support affected members of the community. That was a mistake and we recognize our obligation to ensure that those affected do not incur any financial losses related to this situation. Specifically:
* For 2009 and 2010 we will make payments to current and former employees for excess taxes paid, plus interest. If taxes are due on the foregoing payments, we will reimburse individuals for taxes owed.
* For 2011 and 2012, affected employees can recover the excess tax payments by filing amended tax returns. We recognize that this represents an inconvenience and are committed to doing all that we can to help. We will reimburse individuals for out-of-pocket tax preparation costs, after taxes, if any, that they incur as a result of filing amended returns. We will offer educational programming on filing an amended return. We are also exploring the feasibility of making available tax preparation services that will provide confidential assistance and that will be independent of the University. For individuals with small refund claims, for whom the cost of filing a claim would exceed the amount to be refunded, we will offer the alternative of a cash payment by Harvard in lieu of the individual’s filing a refund claim. If taxes are due on these payments, we will reimburse individuals for taxes owed. We currently anticipate that corrected Forms W-2 for 2011 and 2012 will be available in the early summer.
* We are ahead of schedule for the issuance of corrected Forms W-2 for 2013 and expect they will be delivered earlier in March than originally anticipated and communicated. To avoid the need to file an amended tax return for 2013, we suggest that you delay your filing until you receive the corrected Form W-2.
Going beyond support for affected individuals, we plan to undertake a review, with the assistance of outside experts, of the tax treatment of our benefits programs to ensure there are no additional deficiencies in our processes and practices.
More details of the University’s mitigation efforts will be sent to you in the coming weeks. If you have any questions about this matter, please contact Harvard Benefits at Benefits@harvard.edu.
In closing, please accept my sincere apology. We are working to remedy this situation and to ensure an error like this does not occur again.
Vice President for Human Resources