Employee vs. Independent Contractor – Great Examples From IRS Publication 15A
The IRS Publication 15A – Titled – Employer’s Supplemental Tax Guide still provides many tips when hiring employees or subcontractors for a business. You can download the publication here.
2023 update – you can now find the updated 2023 15-A here.
Every small employer that prepares to grow their business should read through the pages of IRS Publication 15A very carefully. The IRS has painstakingly provided a large amount of very useful information in this publication.
One area I came across over the Independence Holiday consisted of examples (by industry) for employee and independent contractor determination. I realize the list does not cover every state’s workers’ compensation laws and rules for making the determination. Please use the following as more of a general guide from the Federal Government.
Dynamex Decision
Many workers’ comp bloggers published a large number of articles on this “landmark decision” in California. The decision was not that different than an IRS pamphlet already in existence. Check out my earlier article on that IRS guide.
Industry Examples From IRS Publication 15A
The following examples may help you properly classify your workers.
Building and Construction
Industry Example 1.
Jerry Jones has an agreement with Wilma White to supervise the remodeling of her house. She didn’t advance funds to help him carry on the work. She makes direct payments to the suppliers for all necessary materials. She carries liability and workers’ compensation insurance covering Jerry and others that he engaged to assist him. She pays them an hourly rate and exercises almost constant supervision over the work. Jerry isn’t free to transfer his assistants to other jobs. He may not work on other jobs while working for Wilma. He assumes no responsibility to complete the work and will incur no contractual liability if he fails to do so. He and his assistants perform personal services for hourly wages. Jerry Jones and his assistants are employees of Wilma White.
Example 2.
Milton Manning, an experienced tile setter, orally agreed with a corporation to perform full-time services at construction sites. He uses his own tools and performs services in the order designated by the corporation and according to its specifications. The corporation supplies all materials, makes frequent inspections of his work, pays him on a piecework basis, and carries workers’ compensation insurance on him. He doesn’t have a place of business or hold himself out to perform similar services for others. Either party can end the services at any time. Milton Manning is an employee of the corporation.
Example 3.
Wallace Black agreed with the Sawdust Co. to supply the construction labor for a group of houses. The company agreed to pay all construction costs. However, he supplies all the tools and equipment. He performs personal services as a carpenter and mechanic for an hourly wage. He also acts as superintendent and foreman and engages other individuals to assist him. The company has the right to select, approve, or discharge any helper. A company representative makes frequent inspections.
When a house is finished, Wallace is paid a certain percentage of its costs. He isn’t responsible for faults, defects of construction, or wasteful operation. At the end of each week, he presents the company with a statement of the amount that he has spent, including the payroll. The company gives him a check for that amount from which he pays the assistants, although he isn’t personally liable for their wages. Wallace Black and his assistants are employees of the Sawdust Co.
Example 4.
Bill Plum contracted with Elm Corporation to complete the roofing on a housing complex. A signed contract established a flat amount for the services rendered by Bill Plum. Bill is a licensed roofer and carries workers’ compensation and liability insurance under the business name, Plum Roofing. He hires his own roofers who are treated as employees for federal employment tax purposes. If there is a problem with the roofing work, Plum Roofing is responsible for paying for any repairs. Bill Plum, doing business as Plum Roofing, is an independent contractor.
Industry Example 5.
Vera Elm, an electrician, submitted a job estimate to a housing complex for electrical work at $16 per hour for 400 hours. She is to receive $1,280 every 2 weeks for the next 10 weeks. This isn’t considered payment by the hour. Even if she works more or less than 400 hours to complete the work, Vera Elm will receive $6,400. She also performs additional electrical installations under contracts with other companies that she obtained through advertisements. Vera is an independent contractor.
Trucking Industry Example.
Rose Trucking contracts to deliver material for Forest, Inc., at $140 per ton. Rose Trucking isn’t paid for any articles that aren’t delivered. At times, Jan Rose, who operates as Rose Trucking, may also lease another truck and engage a driver to complete the contract. All operating expenses, including insurance coverage, are paid by Jan Rose. All equipment is owned or rented by Jan and she is responsible for all maintenance. None of the drivers are provided by Forest, Inc. Jan Rose, operating as Rose Trucking, is an independent contractor.
Computer Industry Example.
Steve Smith, a computer programmer, is laid off when Megabyte, Inc., downsizes. Megabyte agrees to pay Steve a flat amount to complete a one-time project to create a certain product. It isn’t clear how long that it will take to complete the project, and Steve isn’t guaranteed any minimum payment for the hours spent on the program. Megabyte provides Steve with no instructions beyond the specifications for the product itself. Steve and Megabyte have a written contract, which provides that Steve is considered to be an independent contractor, is required to pay federal and state taxes, and receives no benefits from Megabyte. Megabyte will file Form 1099-MISC, Miscellaneous Income, to report the amount paid to Steve. Steve works at home and isn’t expected or allowed to attend meetings of the software development group. Steve is an independent contractor.
Automobile Industry
Industry Example 1.
Donna Lee is a salesperson employed on a full-time basis by Bob Blue, an auto dealer. She works 6 days a week and is on duty in Bob’s showroom on certain assigned days and times. She appraises trade-ins, but her appraisals are subject to the sales manager’s approval. Lists of prospective customers belong to the dealer. She is required to develop leads and report results to the sales manager. Because of her experience, she requires only minimal assistance in closing and financing sales and in other phases of her work. She is paid a commission and is eligible for prizes and bonuses offered by Bob. Bob also pays the cost of health insurance and group-term life insurance for Donna. Donna is an employee of Bob Blue.
Example 2.
Sam Sparks performs auto repair services in the repair department of an auto sales company. He works regular hours and is paid on a percentage basis. He has no investment in the repair department. The sales company supplies all facilities, repair parts, and supplies; issues instructions on the amounts to be charged, parts to be used, and the time for completion of each job; and checks all estimates and repair orders. Sam is an employee of the sales company.
Example 3.
An auto sales agency furnishes space for Helen Bach to perform auto repair services. She provides her own tools, equipment, and supplies. She seeks out business from insurance adjusters and other individuals and does all of the body and paint work that comes to the agency. She hires and discharges her own helpers, determines her own and her helpers’ working hours, quotes prices for repair work, makes all necessary adjustments, assumes all losses from uncollectible accounts, and receives, as compensation for her services, a large percentage of the gross collections from the auto repair shop. Helen is an independent contractor and the helpers are her employees.
AttorneyExample.
Donna Yuma is a sole practitioner who rents office space and pays for the following items: telephone, computer, on-line legal research linkup, fax machine, and photocopier. Donna buys office supplies and pays bar dues and membership dues for three other professional organizations. Donna has a part-time receptionist who also does the bookkeeping. She pays the receptionist, withholds and pays federal and state employment taxes, and files a Form W-2 each year. For the past 2 years, Donna has had only three clients, corporations with which there have been long-standing relationships. Donna charges the corporations an hourly rate for her services, sending monthly bills detailing the work performed for the prior month. The bills include charges for long distance calls, online research time, fax charges, photocopies, postage, and travel, costs for which the corporations have agreed to reimburse her. Donna is an independent contractor.
Taxicab Driver Example.
Tom Spruce rents a cab from Taft Cab Co. for $150 per day. He pays the costs of maintaining and operating the cab. Tom Spruce keeps all fares that he receives from customers. Although he receives the benefit of Taft’s two-way radio communication equipment, dispatcher, and advertising, these items benefit both Taft and Tom Spruce. Tom Spruce is an independent contractor.
Salesperson
–One of the most complicated determinations in IRS Publication 15A
To determine whether salespersons are employees under the usual common-law rules, you must evaluate each individual case. If a salesperson who works for you doesn’t meet the tests for a common-law employee, discussed earlier in this section, you don’t have to withhold federal income tax from his or her pay (see Statutory Employees in section 1). However, even if a salesperson isn’t an employee under the usual common-law rules for income tax withholding, his or her pay may still be subject to social security, Medicare, and FUTA taxes as a statutory employee.To determine whether a salesperson is an employee for social security, Medicare, and FUTA tax purposes, the salesperson must meet all eight elements of the statutory employee test. A salesperson is a statutory employee for social security, Medicare, and FUTA tax purposes if he or she:
- Works full time for one person or company except, possibly, for sideline sales activities on behalf of some other person;
- Sells on behalf of, and turns his or her orders over to, the person or company for which he or she works;
- Sells to wholesalers, retailers, contractors, or operators of hotels, restaurants, or similar establishments;
- Sells merchandise for resale, or supplies for use in the customer’s business;
- Agrees to do substantially all of this work personally;
- Has no substantial investment in the facilities used to do the work, other than in facilities for transportation;
- Maintains a continuing relationship with the person or company for which he or she works; and8.Isn’t an employee under common-law rules
Please note that the IRS examples above cover the very basics of a workers’ compensation determination between whether your new helper is an independent contractor or employee. Please refer to your specific state’s workers’ comp laws and other publications besides IRS Publication 15A.
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