The Obama Administration has identified worker mis-classification and the resultant payroll tax avoidance - specifically misclassifying employees as independent contractors - as an enforcement priority.
The IRS recently announced its Voluntary Classification Settlement Program—VCSP—allowing employers to voluntarily reclassify independent contractors as employees for the future (see Announcement 2011-64), as a new enforcement intitiative. This comes just days after the IRS and the DOL entered into a Memorandum of Understanding between the two federal agencies and 11 states for the purposes of using wage and hour claims, and possibly unemployment insurance claims, to investigate the payroll tax compliance of employers.
The IRS/DOL initiative includes the signing of memoranda of understanding between DOL and eleven states (Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Missouri, Montana, New York, Utah, and Washington). The DOL will share information with the IRS derived from investigations by its Wage and Hours Division into worker classification issues that may relate to payroll tax compliance. The IRS, in turn, will share that information with participating states. This enhanced cooperation between the federal agencies and the states means that it is even more likely that worker classification issues identified by either IRS or DOL, or a state, will eventually lead to full-scale enforcement action under both tax and labor laws. Household employment has long been identified as an industry where worker misclassification and payroll tax compliance issues are prevalent. The IRS estimates that fewer than 10% of household employers properly treat their nanny or housekeeper as an employee and pay the appropriate payroll taxes. The household employment tax gap - the shortfall between taxes due and actually collected, is estimated to be between $3B - $10B annually.
The IRS' Voluntary Classification Settlement Program offers employers who have consistently treated certain classes of employees as independent contractors, and who have issued 1099 forms in the past, the ability to voluntarily step forward, and if accepted in the program to settle all prior tax liability with a one time payment of just over 10% of the federal payroll taxes due in the prior year.
Nannies and housekeepers paid directly by the household employer are employees under common law. IRS Publication 926, the Household Employer's Tax Guide, clearly outlines the responsibilities of the household employer, including the issuance of a W-2 form to employees at year end and the remittance of Social Security and Medicare Taxes by the employer.
If you employ a nanny or housekeeper that you pay directly, we refer you to our Frequently Asked Questions About the Nanny Tax online at HomeWorkSolutions.com.