Proposed legislation to tax 90 percent of bonuses at companies receiving more than $5 billion in government funds is unfair, Bank of America Corp Chief Executive Kenneth Lewis said in a memo to employees on Friday.

The bank has received $45 billion in government money since October and its employees earning more than $250,000 would be affected if the bill, which was approved by the House of Representatives on Thursday, passes into law.

Lewis has written to members of Congress and the administration to say he is concerned the legislation penalizes associates that were not responsible for creating the financial crisis the United States is suffering, he said in the memo.

In this environment, I am very concerned about our ability to retain some of our most valuable associates, he said, explaining that the bonus tax bill may cause some associates to leave the industry.

The legislation may also hinder a recovery from year-long recession, Lewis said.

Many of the government's plans depend on the private sector being willing to contract with the government, he said, adding, If investors or companies in the private sector believe that the rules can change quickly and indiscriminately, they will be unwilling to participate.

Bank of America declined comment on the memo.

Lewis and other top executives at the Charlotte, North Carolina-based bank declined a bonus for 2008, after requiring government support to complete the acquisition of Merrill Lynch & Co Inc in January.

But since the proposed legislation applies only to bonuses paid in 2009, Merrill employees that received bonuses paid in December, ahead of the acquisition, would not have to pay the tax.

Merrill Lynch paid executives $3.6 billion in bonuses before the takeover and these payments are the subject of an investigation by New York Attorney General Andrew Cuomo.

(Reporting by Elinor Comlay; Editing by Gary Hill)

Merrill Lynch Bank of america Investment