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.