Treating employees as nonemployees.

Let an Expert Do your Payroll – You will generally be liable for social security and  Medicare taxes and withheld income tax if you do not deduct and withhold these taxes because you treated an employee as a nonemployee. You may be able to calculate your liability using special section 3509 rates for the employee share of social security and Medicare taxes and the federal income tax withholding. The applicable rates depend on whether you filed required Forms 1099. You cannot recover the employee share of social security, or Medicare tax, or income tax withholding from the employee if the tax is paid under section 3509. You are liable for the income tax withholding regardless of whether the employee paid income tax on the wages. You continue to owe the full employer share of social security and Medicare taxes. The employee remains liable for the employee share of social security and Medicare taxes. See Internal Revenue Code section 3509 for details.   

Section 3509 rates are not available if you intentionally disregard the requirement to withhold taxes from the employee or if you withheld income taxes but not social security or Medicare taxes. Section 3509 is not available for reclassifying statutory employees. 

If the employer issued required information returns, the section 3509 rates are:

  • For social security taxes; employer rate of 6.2% plus 20% of the employee rate.
  • For Medicare taxes; employer rate of 1.45% plus 20% of the employee rate of 1.45%, for a total rate of 1.74% of wages.
  • For Additional Medicare Tax; 20% of the employee rate of 0.9%.
  • For income tax withholding, the rate is 1.5% of wages.
  • If the employer did not issue required information returns, the section 3509 rates are:
  • For social security taxes; employer rate of 6.2% plus 40% of the employee rate.
  • For Medicare taxes; employer rate of 1.45% plus 40% of the employee rate of 1.45%, for a total rate of 2.03% of wages.
  • For Additional Medicare Tax; 40% of the employee rate of 0.9%.
  • For income tax withholding, the rate is 3.0% of wages. 

Relief provisions. If you have a reasonable basis for not treating a worker as an employee, you may be relieved from having to pay employment taxes for that worker. To get this relief, you must file all required federal tax returns, including information returns, on a basis consistent with your treatment of the worker. You (or your predecessor) must not have treated any worker holding a substantially similar position as an employee for any periods beginning after 1977. See Publication 1976, Do You Qualify for Relief Under Section 530. 

Voluntary Classification Settlement Program (VCSP). Employers who are currently treating their workers (or a class or group of workers) as independent contractors or other nonemployees and want to voluntarily reclassify their workers as employees for future tax periods may be eligible to participate in the VCSP if certain requirements are met. To apply, use Form 8952, Application for Voluntary Classification Settlement Program (VCSP). For more information visit IRS.gov and enter “VCSP” in the search box. As always we are available to help. For no obligation free consultation contact us today!

ABA Tax Accounting

info@abataxaccounting.com

651-621-5777

www.abataxaccounting.com

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Published in: on May 20, 2013 at 12:32 pm  Leave a Comment  
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