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Start-Up Law Talk www.startuplawtalk.com - PowerPoint Presentation

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Start-Up Law Talk www.startuplawtalk.com - PPT Presentation

1 Corporate Law Carter Mackley Mackley amp Mackley PLLC 206 2499678 cartermackleymackleylawcom wwwmackleylawcom Tax Law Deniz Kiral Turquoise Financial Advisory 425 9456300 ID: 712645

law tax months employees tax law employees months control owner www mackley employment independent employer work irs taxes worker mil fica service

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Slide1

Start-Up Law Talkwww.startuplawtalk.com

1

Corporate Law

Carter Mackley

Mackley & Mackley, PLLC

(206) 249-9678

carter.mackley@mackleylaw.com

www.mackleylaw.com/

Tax Law

Deniz Kiral

Turquoise Financial Advisory

(425) 945-6300

deniz@turquoisefinancial.com

www.turquoisefinancialadvisory.com

Immigration Law

Tahmina Watson

Watson Immigration Law

Seattle, WA, 98154

(206) 292-5237

tahmina@watsonimmigrationlaw.com

www.watsonimmigrationlaw.com

Intellectual Property Law

Ashley K. Long

Ember Intellectual Property Law Group, PLLC

(617) 513-8222

ashley@emberip.com

www.emberip.comSlide2

INDEPENDENT CONTRATOR OR EMPLOYEE?

StartupLawTalk

Deniz Kiral

Turquoise Financial Advisory

deniz@turquoisefinancial.com

425-945-6300Slide3

3

Current State OverviewSlide4

Current State of the IRS’s Focus

NEW IRS tax gap numbers highlight future audit areas$450 billion dollar tax gap in 2006, with 40% of the GAP, $179 Million focused on Small Businesses.

17% of the tax cap can be attributed to underpayment of employment taxes.

86% of employment tax audits result in an adjustment.

IRS

National Research Project on Employment Taxes from 2010-20126000 employers are being audit in extensive review of employment tax returnsAudit focuses on Employees being misclassified as independent contractors

Will lead to the conclusion that this issue is costing billions in tax revenues.

Eight Small Business IRS Audit

Areas

to Watch in 2013

8. Proper Worker Classification – CPA Practice Advisory September,

2012Slide5

EXAMPLES OF CRIMINAL PENALTIES FOR EMPLOYMENT TAX INVESTIGATIONS 2011

5

Title

Company

Location

Tax Liability

Jail/Fine

President

Connection Newspapers

Virginia

NA

6 Months 647,000

Owner

Employment Agency

Oklahoma

370

K

24 Months / $1 mil.

Owner

Temp Agency

Minneapolis

400 K

12 Months /

Owner

Construction

Miami

NA

60 Months / 1.2 Mil.

Owner

Health Systems

Ohio

1 Mil.

25 Months

Owner

WRG Electric

Seattle

377

K

6 Months / $377 k

Owner

Health Care

Rhode Island

1.3 Mil.

30 Months /1.21 M

Owner

Contractor

Florida

504 K

18 Months / 504 K

Owner

Health Care

North Carolia

1.3 Mil.

24 Months / $1.3 Mil.

Owner

Construction

New York

460 K

12 Months / 460 KSlide6

TAX INCENTIVES TO

MISCLASSIFY EMPLOYEES:

Company

not subject to withholding taxes

FICA

FUTA State and local income and unemployment taxes Health and welfare benefits Pensions Workers compensation Unemployment benefitsSlide7

7

ClassificationSlide8

DISTINGUISING EMPLOYEES FROM INDEPENDENT CONTRACTOR

8

MOST

IMPORTANT CONSIDERATION:

WHO

CONTROLS THE PROVISION OF THE SERVICES?

COMPANY CONTROL: Employee

INDIVIDUAL CONTROL: Independent

Contractor

The

mere right to direct or control the work of the service provider triggers the application of Code Sec. 3121(d)(2); whether or not the service provider actually exercises the right is irrelevant.Slide9

the IRS grouped the 20 factors into three broad categories:

9

Behavioral control factors

- relate to the right of the service recipient to direct or control the work of the service provider

.

Financial control factors - involve the service recipient’s risk of loss. Relationship control factors - Relationship control factors focus on any agreements, particularly written Slide10

20 FACTOR TEST (

REVENUE RULING 87-41) :

10

Instruction

Training

Integration

into company’s operations

Services required to be performed by specific individual

Hiring supervision and payment of assistants

Continuing

relationship

Set

hours

of

work

Fulltime

commitment

required

Work performed at company’s facilities

Company

determines

order

of performance

Oral or written reports required Slide11

20 FACTOR TEST (

REVENUE RULING 87-41) :

11

Payment

by hour, week, month (vs. lump sum or percentage completion payments)

Payment of business expenses

Furnishing tools and materials

Significant investment by individuals

Potential for profit or loss

Working for more than one firm

Services

available

to public

Right to

discharge

Worker’s right to terminate Slide12

7 FACTOR TEST USED BY TAX COURT:

12Degree of control exercised by the principal (company)

Which party owns the work facilities?

The

opportunity

for loss as well as profit The right to discharge the individual Determining if work is part of the principal’s normal business Permanency of the relationship Intent of the parties in creating the relationship Slide13

13

530 Safe HarborSlide14

SECTION 530 SAFEHARBOR

14

Independent

contractors will not be reclassified as employees if:

a) The employer

is not treating the worker, or anyone in a similar position, as an employee at any time b) The employer filed all required information returns (Forms 1099); and

c)

The employer had a reasonable basis for treating the worker as an independent contractor Slide15

SECTION 530 SAFEHARBOR

15

Reasonable Basis – Employer

prospectively

relied on any of the 4 criteria

Court decisions, IRS rulings, laws, Past IRS audit decisions, Industry Practices, orReliance on a qualified tax professional (attorney, cpa)Act Sec. 530 relief, while an option for the service recipient, is not an option for the worker. Slide16

UNDER SECTION 1760, 530 RELIEF DOES NOT APPLY TO

:

16

Technical

workers who are subject to a three-party arrangement (i.e., the company, an engineering firm and the worker)

EngineerDesignerDrafterComputer programmerSystems analystOther similarly skilled worker engaged in a similar line of work.Slide17

17

SettlementSlide18

Classification Settlement Program (CSP)

18

Filed 1099, but no Reasonable Basis - 100% Employment Tax Penalty

Filed 1099, but not a convincing basis - 25% of Employment Tax Penalty

+ Future Years Employee Classification

VCSP = Voluntary Program a good idea for blatant disregard.Slide19

CSP Analysis Chart

19

Are the Workers Employees?

Were Forms 1099 Timely Filed?

Is Taxpayer Entitled to 530

Relief

Type of CSP Offer

Yes

No

No

None

Yes

YesNo

1 Year Tax + CSP

Yes

Yes

Maybe

25%

Tax + CSPSlide20

Code Section 3509(a) Example

20

1099

No 1099

Company’s Share of FICA

7.65%

7.65%

Employee’s share

of FICA

(0.2/0.4)

1.13%

2.26%

Total FICA

8.878%

9.91%

Income Tax Withholding

1.50%

3.0%

Total Code Sec. 3509(a)

10.28%

12.91%Slide21

CONSEQUENCES OF IMPROPER CLASSIFICATION OF EMPLOYEES

21

TAX

CONSEQUENCES OF MISCLASSIFYING EMPLOYEES

Employer liable for a percentage of the withholding taxes

Employer liable for employer’s share of FICA (Social Security) taxes Employer liable for a portion of the employee’s FICA taxes Interest and penalties Reclassified Employees May Qualify For Various Benefits

– Health insurance and other benefits

– Pension plan

Workers

compensation

Unemployment compensation Reclassification Could Affect Status of Pension Plans – May cause violations of discrimination provisions under ERISA Slide22

OTHER CONSEQUENCES OF MISCLASSIFYING EMPLOYEES

22

Workers have been suing employers in a number of states to be reclassified as employees.

FedEx Cases:

– Federal Express has been sued in multiple state and federal courts by its drivers, challenging their status as independent contractorsSlide23

Disclaimer

23

This presentation is a summary and is not intended as tax or legal advice. You should consult with your tax advisor to obtain specific advice with respect to your fact pattern.

Based on the most recent "best practice" standards for tax advisors issued by the Treasury Department, commonly referred to as Circular 230, we wish to advise you that this presentation has not been prepared to be used, and cannot be used, to provide assurance that penalties which may be assessed by the IRS or other taxing authority (including specifically section 6662 understatement penalties) will not be upheld. Slide24

Start-Up Law Talkwww.startuplawtalk.com

24

Corporate Law

Carter Mackley

Mackley & Mackley, PLLC

(206) 249-9678

carter.mackley@mackleylaw.com

www.mackleylaw.com/

Tax Law

Deniz Kiral

Turquoise Tax Advisory

(425) 945-6300

deniz@turquoisefinancial.com

www.turquoisefinancialadvisory.com

Immigration Law

Tahmina Watson

Watson Immigration Law

Seattle, WA, 98154

(206) 292-5237

tahmina@watsonimmigrationlaw.com

www.watsonimmigrationlaw.com

Intellectual Property Law

Ashley K. Long

Ember Intellectual Property Law Group, PLLC

(617) 513-8222

ashley@emberip.com

www.emberip.com