11/27/2016
EMPLOYMENT TAX – Section 530 relief for MISCLASSIFYING EMPLOYEES AS INDEPENDENT CONTRACTORS
Nelly (“Nelly”) Home Care, Inc. No 15-439 (Eastern District Pennsylvania Federal District Court) decision issued 5/10/16
Nelly provides health care companions for elderly residents in Philadelphia, Pennsylvania. Nelly classified the companions as independent contractors since its formation. In 2011, the IRS determined the classification was incorrect, and assessed a tax of 1.5% of the amounts paid to the contractors. The tax is potentially due under Internal Revenue Code section 3509(a)(1), assuming an “employer” used the correct reporting for an independent contractor. Without the proper reporting, the tax is 3%.
Section 530 of Public Law 95-600, the Revenue Act of 1978 provides administrative relief for the tax owing under Internal Revenue Code section 3509. Section 530 is not in the internal revenue code, however. Under Section 530, an employer must show reasonable basis for not classifying workers as employees. Reasonable basis consists of reliance on:
1. Judicial precedent, published rulings, technical advice with respect to the taxpayer (audit administration), or a private letter ruling the taxpayer requested.
2. A past IRS audit in which there was not assessment attributable to the treatment (for employment tax purposes) of the individuals holding positions similar to the position of the held by the current individual, or
3. A long-standing recognized practice of a significant segment of the industry to which such individual was engaged (IRS Internal Revenue Manual, Technical Guidelines for Employment Tax Issues, Sections 4.23.5.2.2.1, 4.23.5.2.2.2, and 4.23.5.2.2.3)
Nelly could not assert the reasonable basis outlined in the enumerated items above, but since the Nelly owner had previously undergone an IRS audit and the issue was not raised, and Nelly’s owner did personal research and surveys to correctly classify the companions for employment tax purposes, the court concluded Nelly had a “reasonable basis” for classifying its workers as independent contractors.