Type: Client Alerts
Employers should be aware of the wide-reaching implications of the “Harvey Weinstein” provision, inspired by the “#MeToo” movement sweeping the nation. The provision, Section 162(q), provides that “No deduction shall be allowed under this chapter for – (1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney’s fees related to such a settlement or payment.” In sum, the provision forces employers to choose between including a nondisclosure agreement provision in a settlement agreement or taking the cost of the settlement as an ordinary business expense deduction on its tax return. Because the provision is so new, the IRS has not yet issued any guidance on its meaning. In fact, the provision poses more questions than it provides answers.