The Independent Contractor Report. Editor: James R. Urquhart III, Attorney at Law

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Updated Thursday, October 23, 2014

Headlines


Headline:
FIRMS THAT TREAT THESE WORKERS
AS
INDEPENDENT CONTRACTORS IN 2015
ARE
AT RISK IN AN IRS AUDIT

Moreover, firms that treat these workers as independent contractors (ICs) and not as employees are AT RISK in aggressive State reclassification audits.

Many, if not most, state employment tax audits are triggered by an unemployment compensation claim by a worker that was treated as an IC. The resulting state tax audit will look not only at the status of the claimant / worker but at ALL the workers treated as ICs. The back-taxes exposure can be huge.

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California EDD vs. Various Employers

Partial List of Tax Trials
by
Tax Defense Attorney James R. Urquhart III

Member: The State Bar of California

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Headline:
BAKERY TRUCK DRIVERS WERE DISTRIBUTORS / INDEPENDENT CONTRACTORS AND NOT EMPLOYEES

CASE SUMMARY:
The Mississippi Supreme Court held Sara Lee bakery drivers / distributors were independent contractors and not employees for state unemployment insurance tax purposes. State Department of Employment Security determined drivers were employee agent drivers and commission drivers. The Court reversed the Department (and a lower court ruling) because they failed to correctly apply the law.

SOURCE:
Earthgrains Bakery Group FKA Sara Lee Bakery Group v. Mississippi Dept. of Employment Security (Supreme Court of Mississippi; No. 2012-CC-01522-SCT; February 13, 2014).

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Headline:
THESE DELIVERY DRIVERS WERE INDEPENDENT CONTRACTORS ACCORDING TO CALIFORNIA ADMINISTRATIVE LAW JUDGE

CASE SUMMARY:
The California Employment Development Department (EDD) audited the subject firm / employer and found that roughly 200 delivery drivers were employees and not independent contractors. Nearly $1 million in back payroll tax was assessed by the EDD. After a trial / hearing, where many witnesses testified, the ALJ overturned the EDD assessment and ruled in favor of the employer / taxpayer. The EDD auditor held some drivers were employees, others not. The ALJ disagreed ruling ALL subject drivers were independent contractors. In addition to other factors, all the subject payees owned or leased one or more bobtail trucks. The EDD did not appeal the ALJ decision.

SOURCE:
California Employment Development Department [EDD] vs. Employer / Taxpayer [Name Redacted] (California Unemployment Insurance Appeals Board; Date of Decision: August 15, 2012).

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Headline:
SECTION 530 SAFE HARBOR DEFENSE DENIED BY IRS, COURT. FIRM / EMPLOYER FAILED TO FILE TIMELY FORMS 1099 FOR THE SUBJECT PAYEES / WORKERS

CASE SUMMARY:
In this federal employment tax case, the central issue was whether the payer / employer qualified for the Section 530 safe harbor (Section 530 of Revenue Act of 1978). The subject workers / payees were truckers or truck drivers. Both the IRS and the court denied a safe harbor defense for the small trucking firm. Timely IRS Form 1099 filing is one precondition before the section 530 safe harbor can apply. The testimony at trial was vague and unreliable on the Form 1099 issue. That helped the government and hurt the firm.

SOURCE:
Martinez Trucking v. U.S. (Decided January 5, 2012).

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Headline:
MASSAGE THERAPISTS, COSMETOLOGISTS, MANICURISTS (NAIL TECHNICIANS) HELD INDEPENDENT CONTRACTORS AND NOT EMPLOYEES

CASE SUMMARY:
In a Federal employment tax audit, the IRS held that massage therapists, cosmetologists and manicurists (nail technicians) performing services at a spa were employees, not independent contractors. The firm / spa charged weekly booth rent, the greater of $80 or 25 percent of gross revenues. The firm / spa contended there was a landlord / tenant relationship between it and the subject workers. The court disagreed that the subject workers were tenants but held, on other grounds, that they were independent contractors.

SOURCE:
Ardmore Day Spa v. Commissioner of Internal Revenue (2010)

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Headline:
PARCEL DELIVERY DRIVERS ARE INDEPENDENT CONTRACTORS ACCORDING TO STATE TRIAL JURY AND CALIFORNIA COURT OF APPEAL

CASE SUMMARY:
The employer / payer, Express Messenger Systems (doing business as California Overnight) treated its parcel delivery drivers as independent contractors and not employees. In a class action lawsuit, various workers (drivers) sued Express Messenger Systems for alleged violations including overtime, pay stub, and unlawful business practices. After trial, the jury held that the workers / drivers were independent contractors and not employees. The Court of Appeal affirmed.

SOURCE:
Cristler v. Express Messenger Systems DBA California Overnight (2009)

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Headline:
RNs AND LVNs (WORKING IN HOSPITAL) PAID BY NURSE REGISTRY ARE INDEPENDENT CONTRACTORS FOR CALIFORNIA EMPLOYMENT TAX PURPOSES

THE AUDIT AND THE TRIAL. The State of California, Employment Development Department (EDD), determined after audit that the registered nurses (RNs) and licensed vocational nurses (LVNs) were employees, and not independent contractors (ICs) of the alleged employer --- a nurse registry. The EDD assessed over $800,000 in back employment taxes, interest and penalties. After trial (non-jury) where many witnesses testified, an administrative law judge (ALJ) overruled the EDD and upheld IC status. The ALJ also found that a 10 percent penalty assessed for alleged negligence or intentional disregard of the tax laws was not justified.

EDD APPEAL. The EDD appealed and, when appeal briefs were due, wrote a letter (March, 2008) stating that the EDD, "wishes to withdraw its appeal." The decision of the ALJ in favor of the firm and IC status is now final.

The attorney for the employer was the Southern California Law Firm of James R. Urquhart III. Mr. Urquhart is also the editor of The Independent Contractor Report.

SOURCE: State of California, Employment Development Dept. vs. XYZ NURSE REGISTRY [real firm name omitted] (Date of Decision: November 20, 2007)

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Headline:
COURIERS AND MESSENGERS HELD EMPLOYEES AND NOT INDEPENDENT CONTRACTORS

The firm provided courier and messenger services to title companies and law offices. The firm treated couriers and messengers as independent contractors and provided IRS Form 1099s. An agent of the California Department of Industrial Relations determined the subject workers were employees, issued a stop work order and $15,000 penalty for failure to have workers' compensation insurance as required by state law. The firm litigated the controversy all the way to the California Court of Appeal - without success.

SOURCE: JKH Enterprises dba AAA Courier vs. California Dept. of Industrial Relations (Date of Decision: August 22, 2006)

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Headline:
RNs AND LVNs, JUDGE RULED, ARE INDEPENDENT CONTRACTORS AND NOT EMPLOYEES IN PRIVATE DUTY, IN-HOME CARE SETTING

The State of California, Employment Development Department (EDD), determined after tax audit that registered nurses (RNs), licensed vocational nurses (LVNs), and certified nursing assistants (CNAs) were employees, and not independent contractors, of the alleged employer. The EDD assessed over $280,000 in back employment taxes and interest. After a hearing in which a number of witnesses testified, an administrative law judge (ALJ) overruled the EDD as to the RNs and LVNs and upheld non-employee status. As to the CNAs, the EDD determination was affirmed. The EDD did not appeal and the ALJ decision is now final.

The attorney for the firm was the Southern California Law Offices of James R. Urquhart III. Mr. Urquhart is also the editor of The Independent Contractor Report.

SOURCE: State of California, Employment Development Dept. vs. XYZ Registry [real firm name omitted] (Date of Decision: December 22, 2006)

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Contact Information for the Law Offices of James R Urquhart III
Resume of James R Urquhart III, Attorney at Law


Headline:
DISC JOCKEYS (DJs) AND MASTER OF CEREMONIES (MCs) PAID BY ENTERTAINMENT FIRM HELD INDEPENDENT CONTRACTORS AND NOT EMPLOYEES

The State of California, Employment Development Dept. (EDD), determined that DJs and MCs were employees, and not independent contractors as they were treated by the firm / petitioner. The EDD assessed employment taxes against the firm / purported employer. After a hearing in which a number of witnesses testified, an administrative law judge (ALJ) overruled the assessment as to the DJs and MCs and upheld non-employee status.

The attorney for the firm was the Southern California Law Offices of James R. Urquhart III. Mr. Urquhart is also the editor of The Independent Contractor Report.

SOURCE: State of California, Employment Development Dept. vs. L.A. GrooveWorks LLC (Date of Decision: January 18, 2006)

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Headline:
MANICURISTS AND COSMETOLOGISTS IN NAIL SALON HELD INDEPENDENT CONTRACTORS AND NOT EMPLOYEES

The State of California, Employment Development Department (EDD), determined that licensed manicurist and cosmetologist workers were employees and not booth / station renters or independent contractors. The EDD assessed roughly $75,000 in back employment taxes against the nail salon / purported employer. After a five day trial with many witnesses, the administrative law judge (ALJ) overruled the EDD assessment and upheld non-employee status.

The attorney for the firm was the Southern California Law Offices of James R. Urquhart III. Mr. Urquhart is also the editor of The Independent Contractor Report.

SOURCE: State of California, Employment Development Dept. vs. Nail Star Salon (Date of Decision: September 9, 2005)

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EDD APPEALS AND LOSES

The EDD appealed the above ALJ decision (Nail Star) to the full California Unemployment Insurance Appeals Board (Appeals Board). After a careful review of the entire record, the Appeals Board affirmed the ALJ and upheld the granting of the firm's petition for reassessment. The attorney for the petitioner / firm was the Law Offices of James R. Urquhart III, Irvine, California.

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Resume of James R Urquhart III, Attorney at Law


Headline:
IRS SAYS “TEMPORARY” PHYSICAL AND SPEECH THERAPISTS ARE NOT INDEPENDENT CONTRACTORS. IRS ASSESSED MORE THAN $22 MILLION IN PAYROLL TAXES AGAINST THE FIRM. COURT RULED THAT SECTION 530 SAFE HARBOR MAY APPLY IN FAVOR OF THE FIRM.

The purported employer / firms sued the IRS claiming that the safe harbor under section 530 of the Revenue Act of 1978 should apply. The IRS contended that the section does not apply. The District Court denied summary judgment motions filed by both the firm and the government. The case will go to trial on the section 530 issue and other issues.

SOURCE: VTA Management Services v. United States (Date of Decision: December 14, 2004)

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Headline:
PAID VOLUNTEERS TREATED AS NON-EMPLOYEES

The Firm (purported employer) was a “therapeutic residential community dedicated to the care and well being of those with developmental disabilities (Residents).” It used workers / volunteers with academic credentials and gave them money plus various fringe benefits. The workers were NOT treated as employees. Past IRS audits of the firm triggered section 530 safe haven relief in the current audit. The IRS Classification Settlement Program (CSP) is available if certain conditions are met. If the safe harbor applies, then the CSP program in moot.

Source: IRS National Office Tech. Advice Memorandum (Release Date: May 21, 2004).

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New IRS Publication

Headline:
IRS ISSUES NEW PUBLICATION FOR OWNERS OF BEAUTY AND NAIL SALONS

Use of booth renters is acknowledged. Qualified booth renters may be treated as non-employees by the firm or shop.

Publication has tips and suggestions for both the firm or shop as well as for the workers (both renters or not).

SOURCE:

IRS Publication, February 2004.

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Headline:
STATE IS NOT BOUND BY SECTION 530 WORKER MISCLASSIFICATION SAFE HARBOR LAW

Tennessee Claims Commission found that firm misclassifying stage hands was not liable for state employment tax by virtue of section 530. Court of Appeals reversed holding that section 530 is a Federal law not binding on Tennessee. The Court disagreed with firm’s assertion that construing Tennessee’s Employment Security Law “in pari materia” with Federal law mandates a holding that Tennessee must include a provision parallel to section 530.

Source: Crew One Productions, Inc. v. State of Tennessee; Court of Appeals of Tennessee; Filed February 25, 2004.

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Headline:
EMERGENCY ROOM DOCTORS SUCCESSFULLY TREATED AS INDEPENDENT CONTRACTORS FOR FEDERAL EMPLOYMENT TAX PURPOSES

The Tax Court held that late filing of IRS Form 1099s did not disqualify firm from relief under Section 530 safe-harbor.Tax Court is not the final word on this issue. IRS not likely to acquiesce in this decision.

Source: Medical Emergency Care Associates v. Commissioner of Internal Revenue, United States Tax Court, Filed May 19, 2003

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Headline:
VIDEO STORE WORKERS USED TO COLLECT OVERDUE ACCOUNTS ARE NOT INDEPENDENT CONTRACTORS FOR FEDERAL EMPLOYMENT TAX PURPOSES

The workers performed services at the video store premises and used the store’s equipment and supplies. The Tax Court held that the Section 530 safe-harbor did not apply because the firm failed to prove that it had a reasonable basis to treat the subject workers as independent contractors and not as employees.

Source: Ronald McLean Eastern Video v. Commissioner of Internal Revenue; U.S. Tax Court; Decision dated Jan. 14, 2003.

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Headline:
SECTION 530 SAFE-HARBOR RELIEF NOT ENTIRELY FORFEITED BY FAILURE TO ISSUE FORM 1099s IN EARLIER YEAR

An employer can qualify for relief under the section 530 safe-harbor for a period following a period where it failed to file Form 1099-MISCs to report non-employee compensation. According to the IRS, it is possible for a taxpayer-employer to receive section 530 relief for a subsequent year even if in a prior year it failed to file Form 1099s. This assumes that the firm is otherwise entitled to section 530 relief for the later year(s).

Source: IRS Internal Legal Memorandum; Release Date March 15, 2002.

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Headline:
SECTION 530 SAFE-HARBOR TESTED ON ENTITY-BY-ENTITY BASIS AND NOT ON CONSOLIDATED BASIS

The parent corporation and each subsidiary are considered separately. A violation of one of the elements of section 530 by one member of the corporate family will not destroy the section 530 safe–harbor for the others. Section 530, for purposes of the substantive consistency test, is applied on an entity by entity basis and not on a consolidated basis. Using a paying agent does not have an impact on the application of section 530 safe–harbor relief.

Source: IRS National Office Field Service Advice; Release Date July 20, 2001.

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Headline:
AIR CONDITIONING FIRM NOT GUILTY OF FRAUD FOR CLASSIFYING WORKERS AS INDEPENDENT CONTRACTORS

The U.S. Tax Court held that the firm did not commit fraud for purposes of the statute of limitations. Absent fraud, the IRS was barred from assessing additional employment taxes. The firm cooperated with the revenue agent, "in every aspect requested" and provided her with all pertinent documents.

Source: U.R. Neely v. Commissioner of Internal Revenue, U.S. Tax Court, February 13, 2001.

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Headline:
Firm Owner's Testimony That He Was Independent Contractor For Others Did Not Establish Entitlement to Safe-Harbor Relief

Congress enacted the section 530 safe-harbor to alleviate what it perceived as the "overly zealous pursuit and assessment of taxes and penalties against employers who had, in good faith, misclassified employees as independent contractors." Section 530(a)(1) shields a taxpayer who has mistakenly classified his workers as independent contractors from employment tax liability, provided the taxpayer had a reasonable basis for not treating the workers as employees and has filed all required Federal employment tax returns on a basis consistent with the non-employee this treatment.

Source: Robert Patrick Day v. Commissioner of Internal Revenue, U.S. Tax Court, December 13, 2000.

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Headline:
CORPORATION MISCLASSIFYING ITS OFFICERS AS INDEPENDENT CONTRACTORS MAY QUALIFY FOR SAFE-HARBOR RELIEF

In an internal legal memorandum, the IRS determined that firms that misclassify corporate officers might be entitled to relief under the safe-harbor contained in section 530 of the Revenue Act of 1978. In certain circumstances, use of IRS Form 1099 MISCs may be sufficient to establish the firm's treatment of the officer as an independent contractor.

Source: IRS ILM 200038045 (August 9, 2000).

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Headline:
SECTION 530 WORKER CLASSIFICATION SAFE-HARBOR NOT SUPPORTED BY IRS PRIVATE RULINGS

Firm (not-for-profit organization) used workers with developmental, behavioral, and/or physical disabilities. Firm deemed workers to be clients or "consumers" and did not treat them as employees for Federal employment tax purposes. IRS determined them to be employees for purposes of the FICA. Court held safe-harbor did not apply despite several IRS Private Letter Rulings.

Source: Hope Network v. United States, 85 AFTR2d Par. 2000-611 (United States District Court for the Western District of Michigan, February 16, 2000).

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Headline:
TRUCK OWNER-OPERATORS RECEIVED EMPLOYEE WAGES AND NOT LEASE PAYMENTS ATTRIBUTABLE TO INDEPENDENT BUSINESS

Each driver signed a so-called "Owner-Operator Equipment Agreement." The Court found that the equipment leases had “no independent economic significance."  Certain drivers reported payments as “wages” on their Form 1040 thus making a case for the Government.

Source: Marcos Eliseo and Teodora C. Escobar De Paz vs. Commissioner of Internal Revenue (United States Tax Court, May 26, 2000).

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Headline:
CAR “SHUTTLERS” OR “HIKERS” HELD EMPLOYEES FOR FEDERAL EMPLOYMENT TAX PURPOSES

Firm paid drivers a "flat rate” based on distance. IRS held, and U.S. District Court agreed, that shuttlers were employees and not independent contractors.

Source: Leb's Enterprises Inc. v. United States (United States District Court, January 24, 2000).

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Headline:
COURIER AND MESSENGER FIRM IMPROPERLY PAID DRIVERS USING “TWO-CHECK SYSTEM”

First check was for “wages.” Firm treated second check as non-taxable "expense reimbursement.” IRS held, and U.S. District Court agreed, that second check was actually disguised wages.

Source: Shotgun Delivery Inc. v. United States (United States District Court, January 20, 2000).

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Headline:
IN ATTEMPT TO AVOID EMPLOYMENT TAX, FIRM REQUIRED EMPLOYEES TO INCORPORATE 

IRS disregarded sham corporations and assessed employment tax, interest and penalties. Firm owner tried personal bankruptcy to no avail.

Source: Robert Allen Smith v. United States (In re Smith, October 27, 1999).

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Headline:
CAN CORPORATION TREAT
ITS SOLE SHAREHOLDER-OFFICER
AS AN INDEPENDENT CONTRACTOR?

Court affirmed IRS finding that owner-officer (an attorney) was an employee and not an independent contractor and that the Section 530 safe-harbor did not apply. Attorney contended he was "never paid" by his corporation.

Source: Western Management Inc. v. United States (United States Court of Federal Claims, January 21, 2000).

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