Worker Classification Still Troublesome

Tax Court ruled that a worker was an employee because he was paid a daily rate during the four years he worked for an energy company and supervised other employees.

March 2009
by Tina Quinn / Journal of Accountancy

The worker classification issue has been a headache for taxpayers and the IRS for decades. Generally, under common-law rules, a worker is an employee if the person for whom the service is performed has the right to control and direct the worker performing the services, not just as to the result but also as to how it is accomplished. Control does not have to be exercised; the existence of the right to control is sufficient. But control is a vague and often litigated criterion.

Michael Neil McWhorter was employed from 2001 into 2004 by Boyle Energy Services and Technology Inc., which hired him because of his specialized knowledge and expertise in the industry. He worked on a project-by-project basis and was paid a flat rate per day. He provided no timesheets to the company. He had authority to supervise the company's employees but not to hire or fire them. He had a credit card with the company name on it and a business card with the company logo on it.

He received Forms 1099 for 2001, 2002, 2003 and 2004. He never received a Form W-2 from the company. No income tax was withheld, and he paid no estimated tax.

McWhorter failed to file a return for the tax year 2002 (also for 2001). His only explanation was that he did not want to sign a return filed as an independent contractor. The IRS prepared a substitute return under IRC § 6020(b) that included the $126,760 in compensation from Boyle. A notice of deficiency included the taxpayer's liability for self-employment tax as well as penalties for failure to file, failure to pay and failure to pay estimated tax.

McWhorter challenged the deficiency in Tax Court, where the issues were whether he was an employee or independent contractor and whether he was liable for the penalties.

This article has been excerpted from the Journal of Accountancy.
Read the full article here.