Back to research

Compliance

Compliance Challenges for Tax-Exempt Organizations: Understanding the New Definition of Covered Employee

Tax-exempt organizations must heed changes to the definition of 'covered employee' under section 4960, effective 2026, as the scope of excise tax liability broadens significantly.

By NomadicTax Research Team · 5-8 min read

What’s New Under Section 4960 for ATEOs

The One, Big, Beautiful Bill (OBBBA) amended sec. 70416, which changed who qualifies as a “covered employee” for purposes of the excise tax imposed under § 4960:

  • Expanded Definition: Now includes ANY employee of an Applicable Tax-Exempt Organization (ATEO) (or predecessor) for taxable years after December 31, 2025. Also includes former employees who served after December 31, 2016. (irs.gov)
  • Prior Rule limited coverage to an entity’s five highest compensation employees—no longer sufficient.
  • Some exceptions (like limited hours, nonexempt funds) may still apply; IRS intends to issue proposed regulations to clarify these exceptions. (irs.gov)

Risks & Compliance Actions

What Can Trigger Excise Tax Exposure

  • Excessive compensation (over $1 million/year per covered employee).
  • Parachute payments.
  • Making payments to formerly excluded employees who now fall under covered definition.
  • Failing to track which employees are “covered” under new definitions; paying without requisite reporting.

Steps ATEOs Should Take Now

  • Audit your employee roster: See who was employed any time after December 31, 2016, or hired thereafter.
  • Review compensation practices: Bonuses, perks, severance could be impacted.
  • Update internal policies and control frameworks: Contract language, board oversight, executive awards.
  • Prepare for proposed regulations that will clarify exceptions (limited hours, nonexempt funds). Consider providing input during public comment period (due August 4, 2026). (irs.gov)

Practical Example

  • Before 2026, a mid-level director not among top five earners avoided covered employee status—even if making $500,000.
  • Post-2025, that same director, since employed post-2016, becomes a covered employee under the broader definition and could trigger excise tax liability for the organization if remuneration exceeds $1 million.

Key Takeaways for ATEOs

  • The definition shift renders many more employees subject to compensation limits.
  • Excise tax is not only about top-tier salaries; second-tier executives and long-time employees could be affected.
  • Organizations need to plan compensation, benefit, and retirement packages accordingly.
  • Stay tuned for IRS proposed regulations to understand exceptions and recordkeeping requirements.

Bottom line: Nonprofits, charities, hospitals, universities—any ATEO—should immediately update compliance frameworks and compensation policies to avoid excise tax surprises in 2026+.

Sources

Structured source metadata was not recorded; see citations in the article body.