4.23.18 Coordinating Worker Classification Determinations Between SS-8 Program and Exam.

Manual Transmittal

February 06, 2017

Purpose

(1) This transmits revised IRM 4.23.18, Employment Tax - Coordinating Worker Classification Determinations Between SS-8 Program and Exam.

Background

Updates are made to this chapter for procedural and technical changes.

Material Changes

(1) Editorial and technical changes and updates have been made throughout this section.

(2) IRM 4.23.18.1(2). Added cross-reference to IRM 7.50.1, Form SS-8 Worker Classification Determinations, Form SS-8 Processing Handbook, which provides procedures to SS-8 Technicians responsible for handling determinations of employee-independent contractor status when Form SS-8 is filed with the Service.

(3) IRM 4.23.18.2.1. Formerly IRM 4.23.18.2.2. Moved to put status "10" procedures before status "12" procedures. Paragraph (4) changed to provide updated instructions for cases assigned to an examiner. Paragraph (5) moved to new IRM 4.23.18.6.

(4) IRM 4.23.18.2.2. Formerly IRM 4.23.18.2.1. Title change to, Firm Under Employment Tax Examination (Forms 940, 941, 943, 944, or 945) in Status 12 through 18. Procedures clarified, paragraphs reordered, removed reference to the examiner "granting" 530 relief, and deleted exceptions for field examination to not address worker classification issues.

(5) IRM 4.23.18.2.4. Revised for a more orderly flow. Added information on referring the firm for consideration of an employment tax examination.

(6) IRM 4.23.18.3. New subsection, Protective Claims by Employees Filing for Determination of Worker Status. Former IRM 4.23.13.4 of the same name deleted and moved here.

(7) IRM 4.23.18.4. Formerly IRM 4.23.18.3.

(8) IRM 4.23.18.4.1. Formerly IRM 4.23.18.3.1.

(9) IRM 4.23.18.4.2. Formerly IRM 4.23.18.3.2.

(10) IRM 4.23.18.5. Formerly IRM 4.23.18.4.

(11) IRM 4.23.18.5.1. Formerly IRM 4.23.18.4.1. Title changed to, Examination Procedures to Resolve Disagreements.

(12) IRM 4.23.18.5.2. Formerly IRM 4.23.18.4.2. Title changed to, SS-8 Procedures to Resolve Disagreements.

(13) IRM 4.23.18.6. New subsection, TAS, from deleted IRM 4.23.18.2.2(5).

Effect on Other Documents

This material supersedes IRM 4.23.18, dated October 5, 2012.

Audience

This IRM section contains information on procedures for examiners coordinating worker classification issues between the SS-8 Program and Examination.

Effective Date

(02-06-2017)

Alfredo Valdespino
Director, Examination - Specialty Policy
Small Business/ Self-Employed Division

Overview

  1. The SS-8 Program issues determination letters to workers and firms regarding the proper classification of workers performing services for the firm (i.e. employee or independent contractor). See IRM 4.23.2.5, SS-8 Program. The issue of worker classification is often addressed as part of an employment tax examination of a business. Some employment tax examinations are based on referrals from the SS-8 Program after it issues a determination letter. The following procedures are intended to coordinate worker classification issues between the SS-8 Program and Examination.

  2. For additional information, see IRM 7.50.1, Form SS-8 Worker Classification Determinations, Form SS-8 Processing Handbook, which provides procedures for SS-8 Technicians who are responsible for handling determinations of employee-independent contractor status when Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding, is filed with the Service.

Form SS-8 Received by the SS-8 Program When One of the Parties (Worker or Firm) is Currently Under Examination

  1. Form SS-8 can be filed by either a worker or a firm to request a determination on whether a worker (or a specific class of workers) is an employee or independent contractor. In order to ensure consistency and coordinate the determination with different areas of the IRS, the SS-8 Unit must research the Integrated Data Retrieval System (IDRS) to determine whether the worker or the firm is currently under examination before issuing a determination letter. The appropriate action will depend on which party is under examination, the type of examination, and the status of the examination.

Firm Under Employment Tax Examination (Forms 940, 941, 943, 944, or 945) in Status 10

  1. If a firm is under employment tax examination in Status Code "10" , the case can be either in the Examination group manager’s inventory waiting to be assigned or in an examiner’s inventory waiting to be started.

  2. The SS-8 Technician will contact the Examination group manager to determine the status of the case (whether waiting to be assigned or assigned but not started).

  3. If the case is unassigned, the SS-8 Technician will request permission from the Examination group manager to work the SS-8 and issue a determination.

    1. If the case is to be assigned, the Examination group manager may request that the SS-8 Technician not issue a determination letter until the examination is completed.

    2. If the Examination group manager grants permission to the SS-8 Technician to issue a determination letter, the SS-8 Technician will forward a copy of the determination letter and related case file documents to the Examination group manager upon completion.

  4. If the case is assigned to an examiner, the group manager will provide the name of the examiner to the SS-8 Technician to contact for the status of the examination. The examiner may either grant permission to the SS-8 Technician to issue a determination or request that a determination not be made until the examination is completed. If permission is granted to make the determination, the SS-8 Technician will forward a copy of the determination and related case file documents to the examiner upon completion.

Firm Under Employment Tax Examination (Forms 940, 941, 943, 944, or 945) in Status 12 through 18

  1. Upon receipt of a Form SS-8, the technician in that unit will research IDRS for audit indicator(s). If IDRS displays an audit indicator, the SS-8 Technician will contact the Examination group manager and notify the group manager that a Form SS-8 was filed regarding a worker performing services for the firm (taxpayer) under examination.

  2. The SS-8 Technician will notify the taxpayer who submitted Form SS-8 (in most cases this will be the worker) that the Form SS-8 has been received. Until resolution at the field level, the SS-8 request will be placed into suspense.

  3. A copy of the Form SS-8 and any related information will be forwarded to the group manager to be associated with the examination case file.

  4. The field examiner must address the worker classification issue identified on the Form SS-8 as part of the examination. The examiner will follow normal procedures for examining worker classification issues, including first addressing section 530. See IRM 4.23.5.2.1, Section 530 Relief. The examiner should consider contacting the worker, and other workers in the same class, to confirm the facts presented on Form SS-8 and obtain any additional information. Contact made with individual workers constitutes a third-party contact. See IRM 4.23.10.11, Supplemental Procedures When Contacting Workers. In no case should the examiner disclose to the worker(s) that the firm is under examination.

  5. The examiner must provide the SS-8 Technician with a quarterly update on the status of the examination to allow the SS-8 Technician to keep the person that filed the Form SS-8 informed about the status of the SS-8 request.

  6. If the examiner determines that section 530 relief applies to the firm, the examiner will not make the worker classification determination applicable to the firm since examination procedures prohibit the examiner from continuing with the worker classification examination when section 530 relief applies. See IRM 4.23.5.2.2, Establishing Section 530 Relief, paragraph (5). However, the SS-8 Technician is still responsible for making a determination as to whether the worker is an employee or independent contractor at the Form 1040 level and issue the determination letter. To assist the SS-8 Technician, the field examiner will provide any information gathered during the examination of the firm that could assist the SS-8 Technician in making the worker classification determination.

  7. If the examiner determines that the firm is not entitled to relief under section 530 for that class of worker, the examiner will complete the worker classification determination. See IRM 4.23.5.3, Independent Contractor or Employee. Upon completion of the worker classification portion of the examination, the examiner will provide the SS-8 Technician with the results of the worker classification examination, including:

    • A copy of the examination workpapers outlining the facts of the case,

    • The determination of whether the class of worker are employees or independent contractors,

    • The resolution of the issue (i.e., whether the taxpayer agreed to the adjustment), and

    • A copy of the CSP agreement, if applicable.

  8. If the outcome of the worker classification examination adjustment is agreed (either a worker classification adjustment was made or the workers were determined to be independent contractors), the SS-8 Technician will issue a determination letter to the worker based on the field examiner’s findings.

  9. If the outcome of the worker classification examination adjustment is unagreed, no determination letter will be issued until the case is resolved in Appeals or in any subsequent litigation.

Firm Under Income Tax or Other Examination (Form 1040 Schedule C, Form 1120, Form 1120S, Form 1065, or Other Returns)

  1. If the case is in status code "10" or "12" through "18" , the SS-8 Technician will contact the Examination group manager to determine if the examination is being expanded to the employment tax returns or whether a worker classification issue would affect the examination.

  2. If the examination is not being expanded to the employment tax returns and the worker classification issue would not affect the examination, the SS-8 Technician will work the SS-8 case using normal procedures and issue a determination letter. The SS-8 Technician will notify the examiner that the technician that the normal determination procedures will proceed.

  3. If the examination is being expanded to the employment tax returns or the worker classification issue would affect the examination, the SS-8 Technician and examiner will follow IRM 4.23.18.2.3(1) procedures for cases where the firm is under an employment tax examination.

Worker Under Examination (Form 1040)

  1. If the worker’s Form 1040 is under examination, the SS-8 Technician will contact the Examination group manager and notify the group manager that a Form SS-8 was filed by the worker (taxpayer).

  2. The group manager will discuss the potential tax effect on the worker’s Form 1040 with the SS-8 Technician; a determination of the worker’s status as an employee or as an independent contractor may impact the treatment of income and deductions on the Form 1040.

  3. The tax examiner will keep the Form 1040 examination open until the SS-8 Technician completes the worker status determination.

  4. The SS-8 Technician will follow normal procedures for gathering information necessary to make the determination and for issuing a determination letter, however a determination affecting a return open in the field will be worked on an expedited basis. At the end of the determination, a copy of the determination letter will be provided to the examiner.

  5. Upon receipt of the determination letter, the examiner will continue the examination and make the appropriate adjustments based on the determination of whether the worker is an employee or independent contractor:

    • If the worker is determined to be an independent contractor, then the worker may deduct properly substantiated business expenses on Schedule C against the income. The worker is generally subject to self-employment tax on the net income on Schedule C. The worker may deduct the deductible part of the self-employment tax from gross income in determining adjusted gross income.

    • If the worker is determined to be an employee, then the income is properly reported as wages on Form 1040, line 7. The worker is subject to employee FICA on Form 8919, Uncollected Social Security and Medicare Tax on Wages. The worker is not entitled to deduct expenses on Schedule C. Any substantiated business expenses are employee business expenses deductible on Schedule A subject to the 2% AGI limitation. The worker is not entitled to a deduction for contributions to a KEOGH.

    • In addition, if the worker is determined to be an employee, the examiner will make a referral to employment tax for consideration of an employment tax examination of the employer through the electronic Specialist Referral System, at https://srs.web.irs.gov/.

Protective Claims by Employees Filing for Determination of Worker Status

  1. Upon receipt of a Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding, the SS-8 Program submits an acknowledgement letter to the requester (usually the worker). If there is concern that the SS-8 case will not be completed before the statute for amending the return expires, this letter points the taxpayer to the section of the Form SS-8 instructions which contains information on how to file a protective claim using Form 1040-X, Amended U.S. Individual Income Tax Return.

  2. Upon receipt of a Form 1040-X filed to prevent the statute of limitations from expiring, the campuses that handle protective claims perfect the document and route it to Exam Classification. Exam selects protective claims for Planning and Special Programs (PSP) and opens it on AIMS. PSP then forwards it to Technical Services to hold in suspense status until such time a perfected amended return is filed by the taxpayer to address the results of the determination case. If an amended return is not received within an allotted time-frame after receipt of the protective claim, Technical Services will contact the SS-8 unit that was assigned the determination request to ascertain the results of the case, and subsequently to contact the taxpayer to request a final claim.

  3. If a protective claim is received by a field examiner who is auditing the firm involved in the SS-8 case, the examiner will send the Form 1040-X to the campus that handles SS-8 related protective claims.

Employment Tax Exams Based on SS-8 Referral

  1. Many employment tax cases are selected for examination based on referrals from the SS-8 Unit where determinations were made that workers should be classified as employees. In cases where the examination is not based on a referral from the SS-8 Unit, the examiner may still find that a determination letter was issued to the firm for which a particular class of workers was determined to be employees. In either case, the examiner should determine if the firm is in compliance with the determination letter by treating the workers as employees and if so, the date the firm converted the workers from independent contractors to employees.

Procedures Where the Firm (Taxpayer) is Currently in Compliance with the Determination Letter

  1. If the examiner determines that the taxpayer has properly converted the workers from independent contractors to employees and is currently treating the workers as employees, the examiner may discontinue the examination of the worker classification issue even if the taxpayer treated the workers as independent contractors in the year under examination.

  2. The examiner will continue the examination of any other employment tax issues determined to be worthy of examination. If no other employment tax issues are present, the case may be closed "no change" .

Procedures Where the Firm (Taxpayer) is Not in Compliance with the Determination Letter

  1. Even if a determination letter was issued to the taxpayer, the examiner must make an independent determination whether the taxpayer qualifies for section 530 relief and, if not, whether the workers are employees or independent contractors. The determination letter by itself cannot be used as the basis for denying section 530 relief or proposing additional tax based on a worker classification adjustment.

  2. The examiner will request the information submitted by the taxpayer and worker that was used by the SS-8 Unit to make the determination from the SS-8 Unit.

  3. When using an SS-8 determination as the basis for an examination, the examiner must ascertain whether:

    1. The conclusions stated in the letter ruling are properly reflected in the return,

    2. The representations upon which the letter ruling was based reflect an accurate statement of the controlling facts,

    3. The transaction was carried out substantially as proposed, and

    4. There has been any change in the law that applies to the period during which the transaction or continuing series of transactions were consummated.


    See Rev. Proc. 2016-1.

  4. If the examiner makes the same determination as in the determination letter, the examiner will follow normal procedures for proposing a worker classification adjustment. Classification Settlement Program (CSP) procedures must be followed if the requirements for a CSP are applicable. See IRM 4.23.6, Classification Settlement Program. Failure to comply with a determination letter does not exclude the taxpayer from qualifying for a CSP offer.

  5. The examiner may determine additional or different facts during the examination that lead the examiner to reach a conclusion that differs from the SS-8 determination. If the examiner disagrees with the SS-8 determination, the examiner will follow the procedures below for resolving the discrepancy and possible revocation of the determination letter.

Employment Tax Examination Determinations that Differ from SS-8 Determination Letters

  1. Before completing the examination and closing the case, the examiner must follow the procedures below to resolve the discrepancy between the examiner’s determination and the determination letter issued by the SS-8 Unit. The following procedures are not applicable if the examiner determines that the taxpayer is entitled to relief under section 530. In cases where the examiner determines that section 530 does not apply, the examiner will not make a determination whether the workers are employees or independent contractors. See paragraph (6) in IRM 4.23.5.2.2, Establishing Section 530 Relief. Therefore, the SS-8 determination will stand with respect to the class of workers for which the determination letter was issued.

Examination Procedures to Resolve Disagreements

  1. In some cases, the examiner and the SS-8 Technician may not agree on the proper worker classification. In these situations, the examiner will prepare a memorandum to the SS-8 Unit that issued the determination letter explaining that the examiner conducted an audit of the firm (taxpayer) and made a different determination than the SS-8 determination letter. The memorandum should include the following information:

    1. Taxpayer name, address, and employer identification number (EIN),

    2. The reasons for the determination that the workers should be classified differently than the conclusion reached in the SS-8 determination case. The examiner will explain the differences in facts determined during the examination that were not considered in the SS-8 determination, and

    3. A request that the determination letter be revoked.

    Note:

    If the differences described in "b" above are not explained, the SS-8 unit will reject the memorandum/information and return it to the examiner.

  2. The examiner will attach a copy of the examination workpapers explaining the issue, facts, conclusion, and a copy of the original determination letter.

  3. The SS-8 Unit will review the memorandum and additional information to determine whether it agrees with the examiner’s determination that the SS-8 determination letter should be revoked.

  4. If the SS-8 Unit agrees with the examiner’s determination, the SS-8 Technician will notify the examiner of the concurrence and that the determination letter will be revoked. The examiner may then proceed with the case based on the examination results.

  5. If the SS-8 Technician disagrees with the examiner’s determination, the SS-8 Technician will elevate the case to the SS-8 Program Coordinator for consideration. The SS-8 Program Coordinator will review the file, prepare a memorandum outlining the reasons for disagreement, and provide the examiner with the memorandum via email. If, after consideration of the memo, the examiner and his/her group manager still disagree with SS-8 Unit's result, the examiner, the examiner's group manager and the SS-8 Program Coordinator will hold a conference call and attempt to resolve the disagreement.

  6. If the disagreement cannot be resolved, the examiner’s group manager will elevate the issue to the Employment Tax Policy Analyst responsible for worker classification issues.

  7. The Employment Tax Policy Analyst will work with the SS-8 Program Coordinator to resolve the issue and will notify the examiner of the final determination. The examiner will then proceed with the case based on the resolution between the Policy Analyst and the SS-8 Program Coordinator.

SS-8 Procedures to Resolve Disagreements

  1. Upon receipt of a request from an examiner for a revocation of an SS-8 determination, the SS-8 Technician will review the recommendation to determine if the technician agrees with the examiner and will record in the SS-8 case file the basis for a recommendation to revoke or uphold the SS-8 determination.

  2. The SS-8 Technician will discuss the recommendation with the team manager or lead.

  3. If the SS-8 Technician’s manager or lead agrees that the SS-8 determination should be revoked, the technician will notify the examiner of the concurrence with the recommendation and will provide the examiner with a copy of the revocation letter.

  4. If the SS-8 Technician and manager or lead disagrees with the examiner’s recommendation, the file will be elevated to the SS-8 Program Coordinator for review. The SS-8 Program Coordinator will consider the matter, and if he/she concurs that the SS-8 determination should be upheld, will prepare a memorandum outlining the areas of disagreement, and submit the memorandum to the examiner’s group manager for consideration.

  5. If the examiner’s group manager and examiner still disagree with the SS-8 determination result after consideration of the memorandum, the examiner, the examiner's group manager, and the SS-8 Program Coordinator will hold a conference call and attempt to resolve the disagreement.

  6. If the disagreement cannot be resolved, the group manager and examiner will elevate the matter to the Employment Tax Policy Analyst responsible for worker classification issues for final resolution.

TAS

  1. The Taxpayer Advocate Service (TAS) is an independent organization within the IRS whose employees assist taxpayers who are experiencing economic harm, who are seeking help in resolving tax problems that have not been resolved through normal procedures, or who believe that an IRS system or procedure is not working as it should. Pub 1546, Taxpayer Advocate Service - Your Voice at the IRS, provides contact and additional information. The program is designed to alleviate taxpayer hardships that arise from systemic problems or the application of the Internal Revenue Code. In addition, see the TAS website at: http://tas.web.irs.gov.