UNEMPLOYMENT TAX
Just so everyone knows.
Payments to subcontractors can be subject to unemployment
tax. Just as if you paid them a W-2.
Businesses are several times more likely to be audited by
the employment tax people than by the IRS, and the employment tax auditors are
generally smarter because most of them are real people. If you’re issuing
1099s to businesses, no big deal. If you are making a few pretty small payments
and issuing 1099s to individuals, again, no big deal. You’re liable for the tax
but they’re more likely to brush it off as incidental. Besides it isn’t
going to break the bank.
But if you are paying a large number of people for their
services and issuing them 1099s instead of paychecks, the auditors will assert
unemployment tax. They’re so hungry for money, they aren’t real particular
about the law.
Just saying …
A client ran into this situation earlier this year and
decided not to fight it.
I personally think it could be defended relatively
easily. This is not difficult to mount a defense to. But, when things go
to court, you never know … I don’t make those decisions. You do.
In fact I don’t make any of these decisions. I just think
out loud.
Four things I’d like to think out loud about.
1.
If it’s industry practice, it helps a lot.
If your competitors are doing the same thing, it would put you at a
competitive disadvantage to pay tax when your competitors aren’t. If you end up
in a controversy you have to fight, this is a strong defense as an addendum to
everything else you will be using to defend yourself. This is a very
strong issue. Many IRS regulations and court cases have hinged on this
particular issue. In fact, when you scan the cases you will see this pop up
time and time again. Industry Practice.
2.
If you make payments directly to corporations
(i.e., Bill Jones Operating Company, Inc.) it helps because you don’t have to
issue 1099s to corporations. One of the targets of one of these audits is
1099s.
3.
All these corporate or LLC businesses you’re
paying have business tax deductions. Mileage, supplies, whatever. This is
another very strong defense because, the tax is supposed to be on payments for
labor (personal services). If the company has any deductions, then the entire
payment is obviously not for labor. Part of it is to cover the business’
expenses.
4.
This is a practical consideration. The account
to which you’re coding these payments can either attract or escape the
attention of the auditors . You should all know that accounting is an art, not
a science. There is no “right” account. If you choose an account that’s
realistic that won’t attract the attention of the unemployment auditors, you’ll
be better off. You are under no obligation to stick your head in the noose.
Hope this helps.
Pardon any typos. I have a feeling there are some. I’m
famous for my typos.