Small Business Taxes & Management^TM--Copyright 2013, A/N Group, Inc.

Employee or independent contractor? Classifying a worker as an independent contractor when they're really an employee can result in costly penalties. And both the IRS and the Department of Labor are interested in the classification. A number of states are aggressively pursuing the issue. The IRS has a program for employers to reclassify workers while paying a fraction of the normal penalties. The IRS has expanded the program through June 30, 2013. The FAQs below discuss both the original and expanded program.

The IRS has expanded its Voluntary Classification Settlement Program (VCSP) paving the way for more taxpayers to take advantage of this low-cost option for achieving certainty under the law by reclassifying their workers as employees for future tax periods.

The IRS is modifying several eligibility requirements thus making it possible for many more interested employers, especially larger ones, to apply for this program. Thus far, nearly 1,000 employers have applied for the VCSP which provides partial relief from federal payroll taxes for eligible employers who are treating their workers or a class or group of workers as independent contractors or other nonemployees and now want to treat them as employees. Businesses, tax-exempt organizations and government entities may qualify.

Under the revamped program, employers under IRS audit, other than an employment tax audit, can qualify for the VCSP. Furthermore, employers accepted into the program will no longer be subject to a special six-year statute of limitations, rather than the usual three years that normally applies to payroll taxes. These and other permanent modifications to the program are described in Announcement 2012-45 and in questions and answers, posted on IRS.gov.

Normally, employers are barred from the VCSP if they failed to file required Forms 1099 with respect to workers they are seeking to reclassify for the past three years. However, for the next few months, until June 30, 2013, the IRS is waiving this eligibility requirement. Details on this temporary change are in Announcement 2012-46.

To be eligible for the VCSP, an employer must currently be treating the workers as nonemployees; consistently have treated the workers in the past as nonemployees, including having filed any required Forms 1099; and not currently be under audit on payroll tax issues by the IRS. In addition, the employer cannot currently be under audit by the Department of Labor or a state agency concerning the classification of these workers or contesting the classification of the workers in court.

Interested employers can apply for the program by filing Form 8952, Application for Voluntary Classification Settlement Program, at least 60 days before they want to begin treating the workers as employees.

Employers accepted into the program will generally pay an amount effectively equaling just over one percent of the wages paid to the reclassified workers for the past year. No interest or penalties will be due, and the employers will not be audited on payroll taxes related to these workers for prior years. Employers applying for the temporary relief program available for those who failed to file Forms 1099 will pay a slightly higher amount, plus some penalties, and will need to file any unfiled Forms 1099 for the workers they are seeking to reclassify.

A1. The VCSP is a program developed by the IRS that allows taxpayers to voluntarily reclassify their workers as employees for future tax periods for employment tax purposes. Under the VCSP, a taxpayer will pay 10 percent of the amount of employment taxes that would have been due on compensation paid to the workers being reclassified for the most recent tax year, calculated under the reduced rates of section 3509(a) of the Internal Revenue Code. In addition, the taxpayer will not be liable for any interest and penalties on the payment under the VCSP, and will not be audited for employment tax purposes for prior years with respect to the worker classification of the workers. Taxpayers may apply for the VCSP using Form 8952, Application for Voluntary Classification Settlement Program. For more information on the VCSP, see Announcement 2012-45.

Q2. Do all workers have to be reclassified as employees?

A2. No. The VCSP permits taxpayers to reclassify some or all of their workers. However, once a taxpayer chooses to reclassify some of its workers as employees, all workers in the same class as those workers must be treated as employees for employment tax purposes.

Example--Madison Inc. is a construction firm that currently contracts with its drywall installers,electricians and plumbers to perform services at housing construction sites. Madison determines it wants to voluntarily reclassify its drywall installers as employees. Madison submits an application, is accepted into the VCSP and enters into a closing agreement with the IRS to reclassify its drywall installers as employees for future periods. Once the VCSP closing agreement is executed, Madison must treat all drywall installers as employees for employment tax purposes.

A3. Taxpayers who want to voluntarily change the classification of their workers going forward and who meet certain requirements are eligible for the VCSP. Specifically, a taxpayer must be treating the workers to be reclassified as independent contractors or other nonemployees; additionally, the taxpayer must have consistently treated the workers as nonemployees, including having filed any required Forms 1099, consistent with the nonemployee treatment, for the previous three years with respect to the workers to be reclassified. The taxpayer cannot be currently under employment tax audit by the IRS. A taxpayer that is a member of an affiliated group within the meaning of section 1504(a) is considered to be under employment tax audit for purposes of the VCSP if any member of the affiliated group is under employment tax audit. The taxpayer also cannot be under audit by the Department of Labor or any state agency regarding the classification of workers.

Q4. Are exempt organizations eligible for the VCSP?

A4. Yes, exempt organizations are eligible if all eligibility requirements are met.

Q5. Are government entities eligible for the VCSP?

A5. Yes, government entities are eligible if all eligibility requirements are met.

Q7. Can a taxpayer who is not currently under audit but who was previously audited be eligible for the VCSP?

A7. A taxpayer who was previously audited by the IRS or the Department of Labor concerning the classification of the workers may be eligible for the VCSP if the taxpayer has complied with the results of the IRS or Department of Labor audit and is not currently contesting the classification in court.

Q8. How does a taxpayer take part in the VCSP?

A8. In order to participate in the VCSP, an eligible taxpayer must complete and submit an application, using Form 8952, Application for Voluntary Classification Settlement Program. The application should be filed at least 60 days from the date the taxpayer wants to begin treating its workers as employees.

Q9. Should payment be submitted with the application?

A9. No, taxpayers should not submit payment with the VCSP application.

Q10. What happens once the VCSP application has been submitted?

A10. Once submitted, the IRS will review the application and verify the taxpayers eligibility. The IRS will then contact the taxpayer (or the taxpayers authorized representative if an executed Power of Attorney Form 2848, is included with the application) to enter into the VCSP closing agreement with the IRS.

Q11. When does the taxpayer pay the amount due under the VCSP?

A11. Taxpayers must make full and complete payment of any amount due under the VCSP when they return the signed VCSP closing agreement to the IRS.

Q12. What are the results of participating in the VCSP?

A12. A taxpayer who participates in the VCSP agrees to treat the class or classes of workers as employees for future tax periods for employment tax purposes and will not be subject to an employment tax audit with respect to the worker classification of the class or classes of workers for prior years. The taxpayer will pay 10 percent of the employment tax liability, calculated at the reduced rates of IRC section 3509(a), that would have been due on compensation paid to the workers being reclassified for the most recent tax year if those workers were classified as employees for that year, with no liability for any interest or penalties.

Q13. Will I be contacted if my application is rejected?

A13. Yes, if you are not eligible, the IRS will contact you to inform you that your VCSP application has not been accepted.

Q14. If my application is rejected, can I apply again at a later point in time?

A14. Yes, if your VCSP application has been rejected because you are not eligible, you may reapply.

Q15. How is the amount of the VCSP payment calculated?

A15. Payment under the VCSP is 10 percent of the amount of employment taxes calculated under the reduced rates of section 3509(a) of the Internal Revenue Code for the compensation paid for the most recent tax year to the workers being reclassified under the VCSP. Under section 3509(a), the effective tax rate for compensation up to the social security wage base is generally 10.68 percent; however, for 2011 and 2012 it is 10.28 percent. The effective rate for the compensation above the social security wage base is 3.24 percent.

The amount due under the VCSP is calculated based on compensation paid in the most recently closed tax year, determined at the time the VCSP application is being filed. Accordingly, for example, the 10.28 percent effective rate applies for the VCSP applications submitted in 2013 since the most recently closed tax year is 2012. The rate of 3.24 percent applies to compensation above the social security wage base. These effective rates constitute the sum of the rates as calculated under section 3509(a), and are made up of the following:

                        

                     Percentage for      Percentage for        Percentage for 
                     2011 and 2012       years other than      compensation above
                     compensation        2011 or 2012          social security base


Withholding Tax           1.5                  1.5                   1.5

Employee Social
Security Tax              .84                 1.24                     0

Employer Social
Security Tax              6.2                  6.2                     0

Employee Medicare
Tax                       .29                  .29                   .29

Employer Medicare
Tax                      1.45                 1.45                  1.45

Total Due               10.28                10.68                  3.24

Example 1--In 2012 you paid $1,500,000 to workers that are the subject of the VCSP. All of the workers identified in the VCSP application were compensated at or below the social security wage base (e.g., under $110,100 for 2012). You submit the VCSP application on October 1, 2013, and you want the beginning date of the quarter for which you want to treat the class or classes of workers as employees to be 1/01/2014. You look to amounts paid to the workers in 2012 for purposes of calculating the VCSP amount, since 2012 is the most recently completed tax year at the time the application is being filed. Under section 3509(a), the employment taxes applicable to $1,500,000 would be $154,200 (10.28 percent of $1,500,000). Under the VCSP, your payment would be 10 percent of $154,200, or $15,420.

Example 2--The facts are the same as in the example above, except that some of the workers identified in the VCSP application were compensated above the social security wage base in the amount of $250,000. Under section 3509(a), the employment taxes applicable to $1,250,000 would be $128,500 (10.28 percent of $1,250,000) and the employment taxes applicable to the remaining $250,000 would be $8,100 (3.24 percent of $250,000). Under the VCSP, your payment would be 10 percent of $136,600 ($128,500 plus $8,100), or $13,660.

A16. Yes. The SS-8 determination process is not an audit, and, therefore, does not prevent you from being eligible for the VCSP.

Q17. Will the IRS share information about VCSP applicants with the Department of Labor?

A17. No, the IRS will not share information about VCSP applicants with the Department of Labor.

Q18. Will the IRS share information about VCSP applications with state agencies?

A18. No, the IRS will not share information about VCSP applications with state agencies.

Q19. To be eligible under the VCSP, you must have filed all required Forms 1099 for the previous 3 years for the workers you want to reclassify. If I filed Forms 1099 late, am I still eligible for the VCSP?

A19. The IRS will consider you eligible for the VCSP if you filed the required Forms 1099 within 6months of their due date (including extensions), assuming you meet the other eligibility requirements. Taxpayers who have not previously filed required Forms 1099 or who filed them more than 6 months after their due date (including extensions) are not eligible for the VCSP.

However, see Announcement 2012-46 and the FAQs after Q25 below for information about a temporary eligibility expansion under a modified VCSP available through June 30, 2013.

Q20. If I apply for the VCSP and my application is rejected, will I open myself up to an audit?

A20. No, rejection of a VCSP application will not automatically trigger initiation of a Federal audit. You could be audited for another reason, but not as a result of filing Form 8952.

Q21. By signing the VCSP closing agreement am I admitting any liability or wrong doing for past periods?

A21. No, the VCSP concerns future years only. The IRS is not making any determination with regard to prior years and you are not making any representation as to the workers' proper status for prior years for federal employment tax purposes.

Q22. If my parent or subsidiary or another member of my consolidated group is under IRS audit, can I still participate in the VCSP?

A22. No, an employment tax audit of one of the members of an affiliated group is treated as an employment tax audit of the applicant for purposes of the VCSP.

Q23. If I sign a VCSP closing agreement will I be opening myself to an audit in the future?

A23. No, you may be audited for another reason but not because you entered into a VCSP closing agreement.

Q24. If I am currently in IRS Appeals contesting the results of an employment tax examination, am I considered to be under employment tax examination for purposes of the VCSP?

A24. Yes, for purposes of the VCSP you will be considered to be under employment tax audit if you are contesting the results of the audit in IRS Appeals.

A1. This is an expansion of VCSP eligibility available through June 30, 2013, for taxpayers otherwise eligible for VCSP, but who have not filed all required Forms 1099 for the previous three years with respect to the workers to be reclassified. Eligible taxpayers who take advantage of this limited, temporary, eligibility expansion agree to prospectively treat workers as employees and will receive partial relief from federal employment taxes. Under the VCSP Temporary Eligibility Expansion, a taxpayer will pay 25 percent of the employment tax liability that would have been due on compensation paid to the workers being reclassified for the most recent tax year if those workers were classified as employees for that year, determined under the reduced rates of section 3509(b) of the Internal Revenue Code. The taxpayer will also pay a reduced, graduated penalty based on the number of required Forms 1099 that were not filed for the previous three years with respect to the workers being reclassified, up to a maximum amount. The taxpayer will not be liable for any interest and penalties on the payment under the VCSP Temporary Eligibility Expansion, and will not be subject to an employment tax audit with respect to the worker classification of the class or classes of workers for prior years. A taxpayer must certify as part of the VCSP Temporary Eligibility Expansion closing agreement with the IRS that it has furnished to the workers and electronically filed all required Forms 1099 for the previous three years with respect to the workers being reclassified. Taxpayers may apply for the VCSP Temporary Eligibility Expansion by submitting an application as outlined in Section V of Announcement 2012-46 on or before June 30, 2013. See Announcement 2012-46 for more information.

Q2. Do all workers have to be reclassified as employees?

A2. No. Under the VCSP Temporary Eligibility Expansion a taxpayer may choose to reclassify some or all of its workers. However, once a taxpayer chooses to reclassify some workers as employees, all other workers in the same class must be treated as employees for employment tax purposes.

Q3. Which taxpayers are eligible for the VCSP Temporary Eligibility Expansion?

A3. This limited duration expansion of eligibility opens an eligibility window through June 30, 2013,to taxpayers that did not file all required Forms 1099, a key requirement of the VCSP, but that are otherwise eligible for the VCSP.

This temporary eligibility expansion, applies to taxpayers who are currently treating their workers (or a class or workers) as independent contractors or other nonemployees and who want to voluntarily change the classification of their workers going forward. To be eligible, a taxpayer must have consistently treated the workers as nonemployees. The taxpayer cannot currently be under employment tax audit by the IRS. A taxpayer that is a member of an affiliated group is considered to be under employment tax audit for purposes of the VCSP Temporary Eligibility Expansion if any member of the affiliated group is under employment tax audit. The taxpayer cannot be under audit by the Department of Labor or any state agency regarding the classification of the workers. In addition, in order to be eligible to participate in the VCSP Temporary Eligibility Expansion, a taxpayer must furnish to the workers and electronically file all required Forms 1099, consistent with the nonemployee treatment, with respect to the workers being reclassified for the previous three years prior to executing the VCSP Temporary Eligibility Expansion closing agreement with the IRS. Taxpayers must electronically file the required Forms 1099 in accordance with IRS instructions, which will be provided once the IRS has reviewed the application and verified that the taxpayer is otherwise eligible for the program. Taxpayers who want to participate in the VCSP Temporary Eligibility Expansion must submit an application on or before June 30, 2013, as outlined in Section V of Announcement 2012-46. See Announcement 2012-46 for more information.

Q4. Are exempt organizations eligible for the VCSP Temporary Eligibility Expansion?

A4. Yes, exempt organizations are eligible if all other eligibility requirements are met.

Q5. Are government entities eligible for the VCSP Temporary Eligibility Expansion?

A5. Yes, government entities are eligible if all other eligibility requirements are met.

Q7. Can a taxpayer who is not currently under audit but who was previously audited be eligible for the VCSP Temporary Eligibility Expansion?

A7. A taxpayer who was previously audited by the IRS or the Department of Labor concerning the classification of the class or classes of workers may be eligible for the VCSP Temporary Eligibility Expansion if the taxpayer has complied with the results of the IRS or Department of Labor audit and is not currently contesting the classification in court.

Q8. How does a taxpayer take part in the VCSP Temporary Eligibility Expansion?

A8. On or before June 30, 2013, an eligible taxpayer must complete and submit Form 8952,Application for Voluntary Classification Settlement Program, in accordance with the instructions provided in Section V of Announcement 2012-46. The application must be accompanied by a worksheet (completed) as provided in Section V of Announcement 2012-46. The Form 8952 should be filed at least 60 days before the date the taxpayer wants to begin treating its workers as employees. Applicants for the VCSP Temporary Eligibility Expansion will also be required to furnish to the workers and electronically file all required Forms 1099, consistent with the nonemployee treatment, with respect to the workers being reclassified for the previous three years prior to executing the VCSP Temporary Eligibility Expansion closing agreement with the IRS. Taxpayers must electronically file the Forms 1099 in accordance with IRS instructions, which will be provided once the IRS has reviewed the application and verified that the taxpayer is otherwise eligible for the VCSP Temporary Eligibility Expansion. See Announcement 2012-46 for more information.

Q9. Should payment be submitted with the application?

A9. No, taxpayers should not submit payment with the VCSP Temporary Eligibility Expansion application.

Q10. What happens once the VCSP Temporary Eligibility Expansion application has been submitted?

A10. Once submitted, the IRS will review the application and verify the taxpayer's eligibility. Once the IRS has reviewed the application and verified that the taxpayer is otherwise eligible, the IRS will contact the taxpayer (or the taxpayer's authorized representative if an executed Power of Attorney, Form 2848, is included with the application) to provide instructions on how to electronically file Forms 1099. The taxpayer must contact the IRS to provide confirmation that the taxpayer has electronically filed Forms 1099 and furnished the forms to the workers being reclassified. The IRS will then contact the taxpayer to complete the process. Taxpayers whose application has been accepted enter into a closing agreement with the IRS to finalize the terms of the VCSP Temporary Eligibility Expansion.

Q11. When does the taxpayer pay the amount due under the VCSP Temporary Eligibility Expansion?

A11. Taxpayers must make full and complete payment of any amount due under the VCSP Temporary Eligibility Expansion when they return the signed VCSP Temporary Eligibility Expansion closing agreement to the IRS.

Q12. What are the results of participating in the VCSP Temporary Eligibility Expansion?

A12. A taxpayer who participates in the VCSP Temporary Eligibility Expansion agrees to prospectively treat the class or classes of workers identified in the application as employees for future tax periods for employment tax purposes. The taxpayer pays 25 percent of the employment tax liability that would have been due on compensation paid to the workers being reclassified for the most recent tax year if those workers were classified as employees for that year, determined under the reduced rates of section 3509(b); pays a reduced, graduated penalty for unfiled Forms 1099 for the previous three years with respect to the workers being reclassified, up to a maximum amount; is not liable for any interest and penalties on the liability; and is not subject to an employment tax audit with respect to the worker classification of the class or classes of workers for prior years. The taxpayer must certify as part of the VCSP Temporary Eligibility Expansion closing agreement with the IRS that it has furnished to the workers and has electronically filed all required Forms 1099 for the previous three years with respect to the workers being reclassified.

Q13. Will I be contacted if my application is rejected?

A13. Yes, if you are not eligible, the IRS will contact you to inform you that your VCSP Temporary Eligibility Expansion application has not been accepted. Q14. If my application is rejected, can I apply again at a later point in time?

A14. Taxpayers may apply for the VCSP Temporary Eligibility Expansion through June 30, 2013. If your VCSP Temporary Eligibility Expansion application has been rejected because you are not eligible, you may reapply so long as the application is submitted on or before June 30, 2013.

Q15. How is the amount of the VCSP Temporary Eligibility Expansion payment calculated?

A15. Payment under the VCSP Temporary Eligibility Expansion is 25 percent of the employment tax liability that would have been due on compensation paid to the workers being reclassified for the most recent tax year if those workers were classified as employees for that year, calculated under the reduced rates of section 3509(b) of the Internal Revenue Code. Under section 3509(b), the effective tax rate for compensation paid in 2011 or 2012 up to the social security wage base is 12.91 percent. The effective tax rate for compensation above the social security wage base is 5.03 percent.

The amount due under the VCSP Temporary Eligibility Expansion is calculated based on compensation paid in the most recently closed tax year, determined at the time the VCSP Temporary Eligibility Expansion application is being filed. Accordingly, for example, the 12.91 percent effective rate applies for VCSP Temporary Eligibility Expansion applications submitted in 2013 since the most recently closed tax year is 2012. The rate of 5.03 percent applies to compensation above the social security wage base. These effective rates constitute the sum of the rates as calculated under section 3509(b), and are made up of the following:

                      Percentage for 2011         Percentage for 
                       and 2012 compensation       compensation above
                                                  social security base

Income tax 
Withheld                      3.0                         3.0

Employee Social              1.68                           0
Security tax

Employer Social 
Security tax                  6.2                           0

Employee Medicare
tax                           .58                         .58

Employer Medicare
tax                          1.45                        1.45

Total Due                   12.91                        5.03

Example 1--In 2012 you paid $1,500,000 to 27 workers that are the subject of the VCSP Temporary Eligibility Expansion. All of the workers identified in the VCSP Temporary Eligibility Expansion application were compensated at or below the social security wage base (e.g., under $110,100 for 2012). You submit the VCSP Temporary Eligibility Expansion application on Jan. 15, 2013, and you want the beginning date of the quarter for which you want to treat the class or classes of workers as employees to be April 1, 2013. You look to amounts paid to the workers in 2012 for purposes of calculating the VCSP Temporary Eligibility Expansion amount, since 2012 is the most recently completed tax year at the time the application is filed. Under section 3509(b), the employment taxes applicable to $1,500,000 would be $193,650 (12.91 percent of $1,500,000). You would then multiply $193,650 by 25 percent to get $48,412.50. To determine the penalty amount, you would use the worksheet included in Announcement 2012-46. In this case, for 27 workers for 3 years there would be 81 nonfiled Forms 1099. The penalty amount for the 81 unfiled Forms 1099 would be $8,100 (81 multiplied by $100). Therefore, under the VCSP Temporary Eligibility Expansion your payment would be $56,512.50 ($48,412.50 plus $8,100).

Example 2--The facts are the same as in the example above, except that some of the workers identified in the VCSP Temporary Eligibility Expansion application were compensated above the social security wage base in the amount of $250,000. Under section 3509(b), the employment taxes applicable to $1,250,000 would be $161,375 (12.91 percent of $1,250,000) and the employment taxes applicable to the remaining $250,000 would be $12,575 (5.03 percent of $250,000). You would then multiply $173,950 ($161,375 plus $12,575) by 25 percent to get $43,487.50. The penalty amount for unfiled Forms 1099 would be the same as in the example above, or $8,100. Under the VCSP Temporary Eligibility Expansion, your payment would be $51,587.50 ($43,487.50 plus $8,100).

A16. Yes. The SS-8 determination process is not an audit, and, therefore, does not prevent you from being eligible for the VCSP Temporary Eligibility Expansion.

Q17. Will the IRS share information about VCSP Temporary Eligibility Expansion applicants with the Department of Labor?

A17. No, the IRS will not share information about VCSP Temporary Eligibility Expansion applicants with the Department of Labor.

Q18. Will the IRS share information about VCSP Temporary Eligibility Expansion applications with state agencies?

A18. No, the IRS will not share information about VCSP Temporary Eligibility Expansion applications with state agencies.

Q19. Under the VCSP Temporary Eligibility Expansion, I know I must electronically file all required Forms 1099 for the past three years when I apply. How do I do that if I do not have an account for electronic filing?

A19. Assuming you meet the other eligibility requirements, the IRS will provide the necessary instructions for how to electronically file the required Forms 1099 when you apply for the VCSP Temporary Eligibility Expansion.

Q20. If I apply for the VCSP Temporary Eligibility Expansion and my application is rejected, will I open myself up to an audit?

A20. No, rejection of a VCSP Temporary Eligibility Expansion application will not automatically trigger initiation of a Federal tax audit. You could be audited for another reason, but not as a result of applying to the VCSP Temporary Eligibility Expansion.

Q21. By signing the VCSP Temporary Eligibility Expansion closing agreement am I admitting any liability or wrong doing for past periods?

A21. No, the VCSP Temporary Eligibility Expansion concerns future years only. The IRS is not making any determination with regard to prior years and you are not making any representation as to the workers' proper status for prior years for federal employment tax purposes.

Q22. If my parent or subsidiary or another member of my affiliated group is under IRS employment tax audit, can I still participate in the VCSP Temporary Eligibility Expansion?

A22. No, an employment tax audit of one of the members of an affiliated group is treated as an employment tax audit of the applicant for purposes of the VCSP Temporary Eligibility Expansion.

Q23. If I sign a VCSP Temporary Eligibility Expansion closing agreement will I be opening myself to an audit in the future?

A23. No, you may be audited for another reason but not because you entered into a VCSP Temporary Eligibility Expansion closing agreement.

Q24. If I am currently in IRS Appeals contesting the results of an employment tax examination, am I considered to be under employment tax examination for purposes of the VCSP Temporary Eligibility Expansion?

A24. Yes, for purposes of the VCSP Temporary Eligibility Expansion you will be considered to be under employment tax audit if you are contesting the results of the audit in IRS Appeals.

--Last Update 03/04/13