Employee vs. Independent Contractor Exposure

September 22, 2011

IRS Announces 2011 Voluntary Compliance Program Focused on Employee vs. Independent Contractor Exposure

On September 21, 2011, the Internal Revenue Service (IRS) unveiled a Voluntary Compliance Program (VCP) that offers relief for businesses that may have misclassified workers as independent contractors, rather than employees, and so are potentially liable for significant additional taxes, penalties, and interest.


Prior to announcement of the VCP, the IRS and the Department of Labor (DOL) stepped up joint enforcement efforts by signing a new memorandum of understanding to strengthen information sharing on enforcement actions aimed at misclassified workers. Several states are parties to the agreement including New York and Connecticut.

Observation: This enforcement issue has become more urgent as both federal and state authorities seek additional tax revenues to close large current and projected budget deficits.

VCP Summary

The VCP is available for employers that are currently treating (perhaps incorrectly) workers or a class of workers as independent contractors, but want to prospectively reclassify the workers as employees for federal employment tax purposes. The IRS retains discretion over whether to accept an employer into the VCP.

VCP Consequences

Under the VCP, eligible taxpayers will generally be entitled to settle their employment tax liability under a single-year assessment of employment taxes of 10% of the Internal Revenue Code Section 3509 rates applicable to the most recently closed tax year. A 10.68% effective rate applies under the VCP in 2011, since the most recently closed tax year is 2010, and a 10.28% effective rate will apply in 2012. A rate of 3.24% also applies to compensation above the Social Security wage base in both years. These rates include federal income tax withholding and employer/employee social security and Medicare tax.

Observation: Employers in the program will generally pay an amount equal to just over 1% of the wages paid to reclassified workers for the most recent tax year and will eliminate the potential exposure for all prior years. It is unclear how states will react to the VCP program.

VCP Qualifications

The VCP is open to businesses, including exempt organizations, which have treated workers as independent contractors in the past, have filed Forms 1099 for the previous three years, and are not currently under a worker classification audit by the IRS, the DOL, or a state agency. An employer previously audited by the IRS or DOL concerning worker classification is eligible for this Program if it has complied with the results of such an audit.

Under the Program, an employer does not have to reclassify all of its workers who are currently treated as non-employees. However, once an employer chooses to reclassify certain of its workers as employees, all workers in the same class – i.e., workers who perform the same or similar services – must be reclassified as employees.

Employers apply for the program by filing Form 8952, Application for Voluntary Classification Settlement Program. This form must be filed at least 60 days before the taxpayer wants to begin treating the workers as employees.

Observation: The IRS has indicated that an employer that wants to begin treating a class or classes of workers as employees for the fourth quarter of 2011 may do so, but should file the Form 8952 as soon as possible.

Additional VCP Consequences

In addition to filing Form 8952, employers that participate must sign a closing agreement with the IRS extending the statute of limitations from three years to six years for the first three calendar years beginning after the agreement is signed. The agreement also requires the taxpayer to treat the same class of workers as employees in the future.

Observation: Tax professionals can help businesses and exempt organizations evaluate whether the VCP is feasible, appropriate, and cost effective for recipients of services from workers previously treated as independent contractors. Such a review is appropriate in order to make certain that businesses are not entering the VCP when their contractors are already appropriately classified.