Employee or Independent Contractor? It Matters.

Deciding whether a worker is an employee or an independent contractor has always been tricky. The distinction may become even more important under the Tax Cut and Jobs Act (TCJA), as some employees try to shift ordinary income into business income to be eligible for the new qualified business income (QBI) deduction. To get it right, make sure you know what separates a contractor from an employee.

Independent contractors could cut tax revenue

If your company hires an independent contractor, it doesn’t need to withhold payroll or income taxes. Nor does it have to remit FICA or Medicare taxes, or pay into unemployment and workers’ compensation insurance.

So, when an employer misclassifies an employee as an independent contractor, the federal government potentially loses out on quite a bit of money. (State taxing agencies also look closely at this issue, though rules vary.) If the IRS disagrees with your classification, you could be liable for unpaid federal and state income tax withholding, Social Security, Medicare and unemployment insurance contributions, as well as penalties and interest.

Worse, you could be on the hook for both your company’s share and the employee’s share of these amounts. That could hold true even if you filed Form 1099 and paid all taxes due.

Remember, the federal government isn’t the only one that may raise the issue. Former workers who were considered independent contractors may later file lawsuits to recover employee benefits, overtime pay and unreimbursed business expenses or other amounts they could have received as an employee.

How do you know?

To determine whether a worker is classified properly, the IRS asks three critical questions:

Does the company control the worker’s behavior? The agency looks at how, where and when job tasks are performed.

Does the company control the worker financially? When an independent contractor becomes largely or wholly dependent on a single entity to generate income, he or she starts to veer toward employee status.

What is the true nature of the company’s relationship with the worker? Informal agreements or those that go on for a long time can start to look like employment.

There’s also a more detailed 20-question test that delves into the details of those three larger categories.

The IRS isn’t the only agency pursuing employers who misclassify workers. The Department of Labor (DOL), under the Fair Labor Standards Act, also sets forth its “economic realities” test. For example, long, consistent interaction between the parties implies employee status. Similarly, if the services provided are integral to the business, the DOL will tend to view the independent contractor as an employee.

Contractors grow more popular

The use of independent contractors is on the rise. Some manufacturers, for example, hire contractors for seasonal peaks or custom projects. In the past, workers generally hesitated to be classified as independent contractors, because they didn’t want to forgo health and retirement benefits — or job security — that come with being an employee. However, thanks to the new QBI deduction under the Tax Cuts and Jobs Act (TCJA), more workers are expected to jump on the 1099 bandwagon.

From 2018 through 2025, self-employed individuals and contractors that operate so-called “pass-through entities” (such as partnerships, limited liability companies and S corporations) can deduct up to 20% of QBI. Although the TCJA limits the QBI deduction for service businesses, that limitation doesn’t kick in until an individual owner’s taxable income exceeds $157,500, or $315,000 for a married individual who files a joint return.

Numerous rules and restrictions apply to the new QBI deduction, but it could provide significant tax savings for many independent contractors. The IRS is aware of this income-shifting strategy, and it’s expected to monitor worker classification closely while the QBI deduction is available.

If your business uses contractors, protect yourself

Do you use independent contractors? Manufacturers who outsource work to independent contractors must work closely with tax and legal advisors to stay out of trouble with the IRS, state tax agencies and the DOL.

The IRS will make a formal determination of the proper classification, if you are bold enough to ask and willing to wait up to six months for an answer. Short of asking for an official ruling, consult your accountant and employment lawyer to make sure you’re on the right side of the rules.

If you’re not sure, Weaver can help. Contact us with this and any other tax questions you may have.

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