Independent Contractors vs. Employees

 IRS plans to audit 6,000 companies over the next three years.


The IRS recently announced it will be increasing scrutiny of sole proprietorships that provide one 1099R for independent contractors who receive $35,000 or more during the year. The rationale behind the IRS’ thinking is that these independent contractors would be classified as employees based on the 11 criteria described below. Independent insurance agency principals should review any “independent contractor” relationships that they have, particularly with producers, to ensure they will not run afoul of the rules. The issue of employee status does not just relate to payroll taxes but also to the qualification of any retirement plans that the agency sponsors, as well as health insurance benefits provided.


Behavioral Control
Facts that show whether the business has a right to direct and control how the worker does the task for which the worker is hired include the type and degree of the following:


1. Instructions the business gives the worker. An employee is generally subject to the business’ instructions about when, where and how to work. All of the following are examples of types of instructions about how to do work:

  1.   When and where to do the work
  2.   What tools or equipment to use
  3.   What workers to hire or to assist with the work
  4.   Where to purchase supplies and services
  5.   What work must be performed by a specified individual
  6.   What order or sequence to follow

2. Training the business given to the worker. An employee may be trained to perform services in a particular manner. Independent contractors ordinarily use their own methods.
Financial Control
Facts that show whether the business has a right to control the business aspects of the worker’s job include:


3. The extent to which the worker has unreimbursed business expenses. Independent contractors are more likely to have unreimbursed expenses than employees.
4. The extent of the worker’s investment. An employee usually has no investment in the work other than his or her own time. An independent contractor often has a significant investment in the facilities he or she uses in performing services for someone else.
5. The extent to which the worker makes services available to the relevant market. An independent contractor is generally free to seek out business opportunities. Independent contractors often advertise, maintain a visible business location and are available to work in the relevant market.
6. How the business pays the worker. An employee is generally guaranteed a regular wage amount for an hourly, weekly or other period of time. This usually indicates that a worker is an employee, even when the wage or salary is supplemented by a commission. An independent contractor is usually paid by a flat fee for the job.
7. The extent to which the worker can realize a profit or loss.
Type of Relationship
Facts that show the parties’ type of relationship include:


8. Written contracts describing the relationship the parties intended to create. This is probably the least important of the criteria, since what really matters is the nature of the underlying work relationship, not what the parties choose to call it. However, in close cases, the written contract can make a difference.
9. Whether the business provides the worker with employee-type benefits, such as insurance, a pension plan, vacation pay or sick pay. The power to grant benefits carries with it the power to take them away, which is a power generally exercised by employers over employees. A true independent contractor will finance his or her own benefits out of the overall profits of the enterprise.
10. The permanency of the relationship. If the company engages a worker with the expectation that the relationship will continue indefinitely rather than for a specific project or period, this is generally considered evidence that the intent was to create an employer-employee relationship.
11. The extent to which services performed by the worker are a key aspect of the regular business of the company. If a worker provides services that are a key aspect of the company’s regular business activity, it is more likely that the company will have the right to direct and control his or her activities.


Finally, the IRS announced its plan to audit the first 6,000 employment tax audits, and small business will be their audit target. The IRS will start examining 2,000 companies every year over the next 3 years. The IRS will utilize its audit findings to target a select group of businesses and aggressively audit their payroll tax and refine estimates to close the tax gap. IRS audit agents are specially trained to audit employment and payroll tax for the audited businesses.

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