Retirement Plan Blog

04 | 6 | 2011 Posted By Jerry Kalish

 A "T", or technical foul, is part of the game of basketball. If you're a fan of the game, you know it's any infraction of the rules which doesn't involve physical contact such as unsportsmanlike conduct. 

The retirement plan equivalent of a "T" is when an employer misclassifies a worker in situations regarding whether:

• The worker is an independent contractor or an employee, or
•  An employee hired through a staffing agency/Professional Employer Organization (PEO) must participate in the client company's  retirement plan covering other employees.

The referee equivalent in these situations could be the Internal Revenue Service, the Department of Labor, State agencies, or all of them who have stepped up enforcement.

The financial consequences of misclassification could be costly in terms of income tax withholding; other employment related payments such as FICA, FUTA, state unemployment, and workers compensation; and retroactive inclusion in the retirement program. 

Staying with the basketball metaphor, I cover the issue of independent contractor vs. employee in my recent blog post,  Benefits Fouls, for BenefitsPro.com.  

The other side of the court involves leased employees and whether they are actually employees solely of the client company or the client company as a  co-employer with the PEO. It's a complicated topic that attorney Charles C. Shulman covers throughly in his article, Leased Employees and Employee Classification, on his Employee Benefits and Executive Compensation Blog.

So if you have any concerns about how you are classifying workers, then take a time-out and consult with your tax advisor. And even if you don't have any concerns, a periodic review of the status of each "non-employee" might  be helpful to avoid a "technical foul".

06 | 23 | 2009 Posted By Jerry Kalish

It's the age-old story: worker classification, or rather misclassification. I wrote about it this past February, Independent Contractor or Employee? Employee Classification Still A High Priority Enforcement Matter.That was about the IRS auditing employers to determine whether those "independent contractors" were actually employees with required tax withholdings and possible inclusion in benefit plans.

I cover the same issue today in my other blog home, Slate's BizBox Blog, but this time it's about stepped up enforcement by the states for income tax withholdings and employment taxes. No doubt because of the economy. You can read about it here.

02 | 8 | 2009 Posted By Jerry Kalish

Remember that kids' game, Animal, Vegetable, or Mineral? You had to guess into what category the object fell. Well, today in business, there is a similar question. Independent contractor or employee?

But it's not a game. The misclassification of a worker can have serious financial consequences. Penalties and interest involving payroll taxes can pile up if someone is incorrectly treated as an independent contractor. And in the case of a retirement plan, the employer would have to make up the benefits the individual would have received.

It's an issue that we are particularly sensitive to with our clients at this time of year as we start to receive employee census data for 401(k) discrimination testing. One of the questions we ask is "Do you have any independent contractors?" A "yes" response initiates a discussion that the employer have a process in place that the independent contractor classification will hold up in the event of an audit.

Rush Nigut, a West Des Moines, Iowa-based attorney also has an on-going concern about the classification issue and has written about the subject. His recent post on his blog, Rush on Business, State of Iowa to Step Up Contractor Misclassification Efforts, also include links to other information on the matter. It is anticipated, Rush said, that these enforcement efforts could bring in millions in additional revenues to the state.

But it's not just the State of Iowa or other states for that matter, the Internal Revenue Service, of course, also has a keen interest in proper classification of workers. Just last month, the IRS updated their on-line resource page, Independent Contractor (Self-Employed) or Employee? The page includes links to how to get a determination from the IRS on a worker’s status and how to get tax relief.

And for any complicated tax matter like this one that can be a potentially costly tax miscue, consult a qualified tax advisor. This is another one of those "kids, don't try this at home" matters.

Picture credit: Animal, Vegetable, or Mineral?, by Michael Cook. Installation: each unit 4ft., x 4ft., overall dimensions 8ft. 6in. x 8ft. 6in. for each group of four, Museum of Fine Arts, Santa Fe, 1990. 

08 | 24 | 2007 Posted By Jerry Kalish

Employee or independent contractor? Attorney Rush Nigot warns us about making the mistake of treating employees as independent contractors. It's an issue about which the IRS has sacked the NFL and caused Microsoft to reboot. Penalties and interest can pile up if someone is incorrectly treated as an independent contractor. And in the case of a retirement plan, the employer would have to make up the benefits the individual would have received as an employee. And it can be expensive.

But what if you do make a mistake, and that independent contractor is really an employee. How do you fix it? Here's how. There's two aspects to the fix. From the payroll tax standpoint, Accounting Web provides valuable tips for reporting misclassified employees (registration required). And from a retirement plan standpoint, you can use one of the correction programs offered by the Internal Revenue Service as part of their Employee Plans Compliance Resolution System (EPCRS). Better to get to them before they get to you.
 

04 | 24 | 2007 Posted By Jerry Kalish

Here is another example about the importance of properly classifying your employees. Frank Steinberg in his New Jersey Law Blog tells us that the NFL Loses to IRS regarding how the League had been treating their 70-plus Drug Program Agents [DPA's], who collect urine samples for the drug testing program. The IRS recently ruled that the DPA's are league employees, not independent contractors as previously treated by the NFL. Mr. Steinberg also links us to the story as reported by the New York Daily News. The ruling could cost the NFL millions in employment taxes and benefits.

Here are links to two posts I did on this topic:

Who's your employee: inquiring minds and the IRS want to know

What to do when an independent contractor is really an employee
 

02 | 19 | 2007 Posted By Jerry Kalish

Recently I wrote about being careful to properly classify your workers: independent contractor or employee. But what if you make a mistake, and that independent contractor is really an employee. How do you fix it? Here's how. There's two aspects to the fix. From the retirement plan standpoint, you can use one of the correction programs offered by the Internal Revenue Service as part of their Employee Plans Compliance Resolution System (EPCRS). From the payroll tax standpoint, Accounting Web provides valuable Tips For Reporting Misclassified Employees. Not fixing it can be extremely expensive.