Section of Taxation Publications

VOL. 62
NO. 1
Fall 2008

Contents | TTL Home


Note: The following is an excerpt from the introduction to the article as published in The Tax Lawyer. Author citations have been omitted for brevity. Tax Section members may read the article in its entirety in Adobe Acrobat format.

Taxing Tenure: An Examination of How the Federal Insurance Contribution Act (FICA) Has Been Applied to Tenure Buyouts

Nicole Occhuizzo*

I. Introduction

In recent years, three federal courts of appeals have considered the question of whether early retirement payments made by educational institutions to tenured faculty in exchange for the relinquishment of their tenure rights constitute wages subject to taxation under the Federal Insurance Contribution Act (FICA)—and have reached different results. The Eighth Circuit held in North Dakota State University v. United States that such payments were not subject to FICA taxation because they were made for the faculty members’ property interests in their continued employment. Reaching the opposite conclusion, the Sixth Circuit in Appoloni v. United States and the Third Circuit in University of Pittsburgh v. United States subsequently held that such payments were subject to FICA because they were made for the faculty members’ service to their employers. Based on similar facts, these different outcomes arose in large measure from the courts’ different views of both the nature of the payments and of tenure itself.

While this issue was making its way through the courts, the Service also added to the analytical confusion surrounding tenure rights. Beginning in 1955, the Service held in a series of Revenue Rulings that payments to an employee for the relinquishment of his rights in an employment contract were not FICA wages. But in Revenue Ruling 2004-110, the Service reversed itself, holding that such payments generally do constitute FICA wages.

To make sense of how the FICA rules have been applied to “tenure buyout” payments, this Article does the following: in Part II, it discusses the concept of tenure; in Part III, it provides a general overview of the FICA rules; in Part IV, it examines the aforementioned Revenue Rulings; in Part V, it reviews the courts of appeals cases; in Part VI, it discusses the Service’s reaction to North Dakota State University (NDSU); and, in Part VII, it both concludes that much of the taxpayer-friendly precedent has been chipped away and identifies the limited circumstances in which educational institutions that seek a refund of FICA taxes paid with respect to tenure buyout payments may still find support for their position.

*The author is an attorney at Ivins, Phillips & Barker in Washington, D.C., where she specializes in tax and employee benefit matters. She received her LL.M. in Taxation, with distinction, from Georgetown University Law Center in 2004, where she was a Graduate Tax Scholar. She received her J.D., magna cum laude, from Notre Dame Law School in 2002, where she was Executive Articles Editor of the Journal of College and University Law, and her B.A., summa cum laude, from Bethel College in 1999. Before joining Ivins, Phillips & Barker, Ms. Occhuizzo served as a law clerk to the Hon. L. Paige Marvel of the United States Tax Court. She is admitted to the Bar of the District of Columbia, the Bar of Pennsylvania, and the U.S. Tax Court.


Published by the
American Bar Association Section of Taxation
in Collaboration with the
Georgetown University Law Center


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