Volume 20 Issue 6 -- November/December 2008
In the last
issue ("Immigrant Workers: An Overview") we mentioned that
both the Internal Revenue Service (IRS) and the Social Security Administration (SSA)
may send out “no-match” letters and we briefly looked at the potential
implications of the SSA no-match letters. In
this issue we will look at the IRS counterpart.
Most commonly, the IRS will send
its “no-match” letter to a business with independent contractors (IKs) who
have received payments reported on 1099s.
We have been using the term
“payor” rather than “employer” because many of these workers are treated
as independent contractors and receive 1099s rather than W-2s.
To illustrate the problems that a business can face, we have been
referring to Kon Fused, or “Kon,” as the payor, and its worker and payee,
IRS no-match letters take the
form of a CP2100 or CP2100A notice to a payor that a payment recipient, usually
on a 1099, has an SSN or ITIN that does not match IRS records. The notice
instructs the business to take certain required steps to verify the payee’s
SSN or ITIN, or to begin collecting “backup withholding.”
For example, if Kon receives a
CP2100 he is required to send out a notification to the listed recipients of the
payments telling each recipient that unless a valid SSN or ITIN is provided to
Kon within 30 days, mandatory backup withholding will begin.
If Kon Fused cannot obtain a
valid SSN from Jose, then Kon must begin withholding 28% of all payments to
Jose. The backup withholding must begin on all payments after 30 days from the
receipt of the IRS form CP2100 letter for all those workers with questioned SSNs.
If Kon Fused is required to
withhold 28% of the payments to Jose what will Jose do?
Jose will not receive the same gross amount for the same number of hours
or work, but an amount which is reduced by 28%.
If Jose obtains a valid SSN or
ITIN after Kon receives a CP2100 and notifies Kon of that number, then the
payments to Jose are not subject to backup withholding.
This clarifies the situation of
the status of Jose, but it does not prevent Jose from being reclassified as an
employee by the IRS in a standard employment tax audit, should one occur.
Businesses sending out five or
more 1099s to IKs in the amount of $20,000 or more each, where the recipients
receive no other 1099s, may face an increased risk of an employment tax audit,
where the IRS would seek to establish whether a business’s workers are
properly classified as IKs or as employees.
Traditionally, the IRS addressed
the status of a worker by doing an “employment tax audit” to review the
status of all of the workers of Kon and make a determination as to whether Jose
and other workers are employees or IKs. It appears in recent times, at least
The effect of either backup
withholding (28%) or an employment tax audit making Jose an employee is, for
many purposes, the same. Jose will no longer receive a gross amount of
compensation, but as an employee or as an IK, he will received payments reduced
by either regular wage withholding or 28% backup withholding.
In either situation, Jose may
leave. The problems many small employers, such as Kon, have will be amplified if
other businesses in the area have chosen to ignore or do not comply with IRS
rules. This does not mean that small employers should flaunt the law; nor is
this newsletter encouraging them to do so. Even if there are only a few workers,
there could be criminal prosecution against Kon Fused if he continues to use
workers with invalid SSNs.
Another potential consequence of
receiving a CP2100 type notice from the IRS is the potential for adverse income
tax audits. In
In some of these audits, IRS
agents and their supervisors have taken the position that no contract labor
expenses can be deducted unless the worker has a valid SSN. Although the stated
justifications have varied somewhat, the IRS auditors have sometimes cited a
CP2100 notice as a basis for totally disallowing deductions for all
worker-related expenses and payments.
In some of these audits the IRS
has relented and acknowledged that worker payments are deductible even if Jose
has an invalid SSN, but some of these cases are still pending.
If you or your clients have
further questions about this subject, please call The Tax and Business
information about this topic is available elsewhere on
By Tax and Business Professionals, Inc.
9837 Business Way
Manassas, VA 20110
While designed to be accurate, this publication is not intended to constitute the rendering of legal, accounting, or other professional services or to serve as a substitute for such services.
Redistribution or other commercial use of the material contained in Tax & Business Insights is expressly prohibited without the written permission of Tax and Business Professionals, Inc.