20 Questions for determining whether a Contractor is a W-2 vs. 1099 Independent Contractor

By: Tracy Levine, President, Advantage Talent, Inc.

Becoming an Independent Contractor is a great way for Executives in transition to earn money in this tight economy. For Corporations that have downsized and need help, Executive Consultants can be the answer. However, it is important that Companies engage these Consultants correctly. The IRS and DOJ are cracking down on employers who claim contractors as 1099 contractors when they are not. There is much more to a contract than negotiating the hourly rate. When negotiating a contract, it is important to consult the appropriate professionals, such as, an attorney and/or a tax accountant or go through a Executive Staffing firm. In fact, under the IRS Code most Financial Executive Consultants do not qualify as 1099 Contractors!

Employee status under common law. Generally, a worker who performs services for your Company is your employee if you have the right to control what will be done and how it will be done. This is so, even when you give the employee freedom of action. What matters is that you have the right to control the details of how the services are performed. If an employer-employee relationship exists, it does not matter what it is called. The employee may be called an agent or independent contractor. It also does not matter how payments are measured or paid, what they are called, or if the employee works full or part time. (IRS Publication 15, Circular E, 2008 Pg. 8)” The IRS has provided examples of what is and is not a W-2 Employee vs. a 1099 Independent Contractor.

The corporation that classifies a W-2 employee as a 1099 Contractor faces the following fines:

*A breakdown of back tax penalties(http://tinyurl.com/5u0d):

15.30 % Social Security Tax (on income up to the cap, plus 2.9 % of income above that cap),

20.00 % Federal Income Tax, +6.20 %

Unemployment Insurance, 41.50 % of the contractor’s pay (IRS 3509).

If it is determined to be intentional, there can be jail time involved.

The Federal Government is not the only one cracking down on employers who misclassify W-2 Employees as 1099 Independent Contractors. Many states have become aggressive on preventing what they see as Corporations not paying taxes that are duly owed. In this economy where budgets are short at the Federal and State Levels, the agencies are demanding stricter adherence to employee tax laws.

Some of the red flags for the IRS include a former employee hired back as a 1099 Contractor. A contract-to-hire where the employee starts off as a 1099 employee then converts to a W-2 Employee. If someone is acting as a Contract Interim CEO, CFO or Controller for a company while the company looks for a permanent solution, or while someone is out on sick leave or maternity leave, under the IRS 20 Questions (see below) these situations would probably fail as a 1099 Contract Position.

According to information published by the IRS, around $64 million in taxes and penalties were collected from over 800 companies that misclassified workers in the most recent year reported. These numbers are only going to continue to go up as the IRS has promised to randomly audit several thousand companies. The Federal Government Accountability Office estimated that employee misclassification resulted in the underpayment of an estimated $2.72 billion in Social Security taxes, unemployment insurance taxes and income taxes in 2006, the last year for which figures are available.

It is important for both Companies and Interim Executives to set up the appropriate relationship in the beginning for the protection of everyone involved. In the current environment, now is not the time to be a do-it-yourself contract negotiator and leave out the experts. A full summary can be found at http://www.irs.gov/pub/irs-pdf/p15a.pdf .  If you fill out a Form SS-8  (http://www.irs.gov/pub/irs-pdf/fss8.pdf), the IRS will help you determine whether the contract employee should be classified as  a W-2 Employee or a 1099 Contractor.

For information on how Advantage Talent, Inc. can help you, please contact Michael Levine at Mlevine@AdvantageTalentInc.com.

The following is a list of 20 questions the IRS uses to determine if a worker is an independent contractor or employee. The answer of yes to any one of the questions (except #16) may mean the worker is an employee.

1. Is the worker required to comply with instructions about when, where and how the work is done?
2. Is the worker provided training that would enable him/her to perform a job in a particular method or manner?
3. Are the services provided by the worker an integral part of the business’ operations?
4. Must the services be rendered personally?
5. Does the business hire, supervise, or pay assistants to help the worker on the job?
6. Is there a continuing relationship between the worker and the person for whom the services are performed?
7. Does the recipient of the services set the work schedule?
8. Is the worker required to devote his/her full time to the person he/she performs services for?
9. Is the work performed at the place of business of the company or at specific places set by the company?
10. Does the recipient of the services direct the sequence in which the work must be done?
11. Are regular oral or written reports required to be submitted by the worker?
12. Is the method of payment hourly, weekly, monthly (as opposed to commission or by the job?)
13. Are business and/or traveling expenses reimbursed?
14. Does the company furnish tools and materials used by the worker?
15. Has the worker failed to invest in equipment or facilities used to provide the services?
16. Does the arrangement put the person in a position or realizing either a profit or loss on the work?
17. Does the worker perform services exclusively for the company rather than working for a number of companies at the same time?
18. Does the worker in fact make his/her services regularly available to the general public?
19. Is the worker subject to dismissal for reasons other than non-performance of the contract specifications?
20. Can the worker terminate his/her relationship without incurring a liability for failure to complete the job?

www.AdvantageTalentInc.com

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