From PR Newsire, the Customized Logisitics and Delivery Association issued a press release announcing the introduction of a bill that modifies the Internal Revenue Code to provide standards for determining employment status. The press release states:
“A bill introduced yesterday by Representative Erik Paulsen (R-Minnesota) will have a positive impact on American businesses that rely on independent contractor partnerships to meet customer needs. The bill (H.R.2483) is one to amend the Internal Revenue Code of 1986 to provide standards for determining employment status, and for other purposes. It puts forth a two-part test that establishes a formal definition of who is an independent contractor. In addition, it will clarify Safe Harbor provisions of the Tax Code which also helps to define an independent contractor. The measure was referred to the House Committee on Ways & Means.
“Some in Washington want to make it more difficult for businesses to use independent contractors, it’s time to tell the employer side of the story,” said Paulsen. “That’s why I introduced this legislation, which provides clarity and guidance for employers so they know they are properly classifying independent contractors. This certainty will allow businesses in Minnesota and across the country to grow and create a healthier economy.”
Members of the customized logistics and delivery industry, which relies heavily on the partnership with independent contractors to respond to fluctuating customer demands, praised Representative Paulsen for his leadership in introducing the bill.
“This bill provides much-needed clarity and guidance for businesses that partner with independent contractors to provide the flexibility of their workforce they need to meet customer needs,” says Kirk Godby, president of the Customized Logistics and Delivery Association (CLDA). Over 89 percent of CLDA’s members said that their ability to utilize independent contractors was important to their business success, in a recent survey conducted by the association.
“Independent contractors are the backbone of our industry, allowing us to be responsive and flexible enough to meet changing customer demands,” says Godby. “They are a key part of this nation’s supply chain and our country’s ability to remain competitive in today’s economy. As the industry that provides on-demand deliveries that respond to time-sensitive needs, we rely on independent contractor partnerships to help us fulfill those customer needs. This bill brings clarity to the definition of an independent contractor, enabling all industries that depend on them to remain in compliance and to properly classify them.”
The bill provides a new section to the Internal Revenue Code (Section 3511) which will assist businesses in making the proper classification. By adding this section, the goal of H.R.2483 is to assist business with compliance and proper classification of individuals as independent contractors. In 1978, Congress enacted Section 530 of the Revenue Act of 1978 to provide a safe-harbor for businesses with respect to the employment classification of individuals. This came as a result of inconsistent employment tax audits where the definition of “employee” was unclear. Congress affirmatively acted to make the Section 530 Safe Harbor permanent in 1982. However, this issue wasn’t included in tax reform in 1986 and therefore was not codified as part of the Internal Revenue Code.
H.R.2483 has two basic goals. First, it puts Safe Harbor provisions on a firmer ground by placing it in the Internal Revenue Code. Second, it provides additional clarity to businesses about what constitutes an independent contractor with two new sections in the Internal Revenue Code – 3511 and 3512. Section 3511 includes the Safe Harbor. Section 3512 establishes a two-part test to determine whether a service provider and service recipient are not employee and employer respectively. The two criteria used to determine employment status are: 1. the individual either has investment in equipment or is subject to income fluctuation; and 2. the individual has control of time worked and performance of services.
“We applaud Congressman Paulsen for his introduction of this bill,” adds Godby. “It provides the kind of pro-business, pro-growth effort that helps all of us in the private sector continue contributing to the nation’s economy.”…”
The full text of H.R. 2483 follows:
114th CONGRESS, 1st Session
United States Library of Congress
Introduced in House
May 20, 2015
H. R. 2483
To amend the Internal Revenue Code of 1986 to provide standards for determining employment status, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
May 20, 2015
Mr. Paulsen introduced the following bill; which was referred to the Committee on Ways and Means
To amend the Internal Revenue Code of 1986 to provide standards for determining employment status, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘Independent Contractor Tax Fairness and Simplification Act of 2015’.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) Independent contractors play a vital role in our economy.
(2) Independent contractors embrace the entrepreneurial spirit of our country and are free to seek economic opportunities that best fit their needs.
(3) Many small businesses start as an independent contractor and grow creating jobs for other individuals.
(4) The proper classification of individuals as employees and independent contractors is a significant responsibility for businesses.
(5) The rules and guidelines for determining whether an individual is an independent contractor or an employee lack clarity and consistency.
(6) It is in the best interests of taxpayers, the Federal Government and the business community to have fair and objective rules for determining who is an independent contractor and who is an employee.
SEC. 3. STANDARDS FOR DETERMINING EMPLOYMENT STATUS.
(a) In General. Chapter 25 of the Internal Revenue Code of 1986 (general provisions relating to employment taxes) is amended by adding after section 3511 the following new sections:
‘SEC. 3512. CONTROVERSIES INVOLVING WHETHER INDIVIDUALS ARE EMPLOYEES FOR PURPOSES OF THE EMPLOYMENT TAXES.
‘(a) Termination of Certain Employment Tax Liability.-
‘(1) In general. If-
‘(A) for purposes of employment taxes, the taxpayer did not treat an individual as an employee for any period, and
‘(B) in the case of periods after December 31, 1978, all returns (including information returns) required to be filed by the taxpayer with respect to such individual for such period are filed on a basis consistent with the taxpayer’s treatment of such individual as not being an employee,
then, for purposes of applying such taxes for such period with respect to the taxpayer, the individual shall be deemed not to be an employee unless the taxpayer had no reasonable basis for not treating such individual as an employee.
‘(2) Statutory standards providing one method of satisfying the requirements of paragraph (1). For purposes of paragraph (1), a taxpayer shall in any case be treated as having a reasonable basis for not treating an individual as an employee for a period if the taxpayer’s treatment of such individual for such period was in reasonable reliance on any of the following-
‘(A) judicial precedent, published rulings, technical advice with respect to the taxpayer, or a letter ruling to the taxpayer,
‘(B) a past Internal Revenue Service audit of the taxpayer in which there was no assessment attributable to the treatment (for employment tax purposes) of the individuals holding positions substantially similar to the position held by this individual, or
‘(C) long-standing recognized practice of a significant segment of the industry in which such individual was engaged.
‘(3) Consistency required in the case of prior tax treatment. Paragraph (1) shall not apply with respect to the treatment of any individual for employment tax purposes for any period ending after December 31, 2015, if the taxpayer (or a predecessor) has treated any individual holding a substantially similar position as an employee for purposes of the employment taxes for any period beginning after December 31, 2014.
‘(4) Refund or credit of overpayment. If refund or credit of any overpayment of an employment tax resulting from the application of paragraph (1) is not barred on the date of the enactment of this section by any law or rule of law, the period for filing a claim for refund or credit of such overpayment (to the extent attributable to the application of paragraph (1)) shall not expire before the date 1 year after the date of the enactment of this section.
‘(b) Prohibition Against Regulations and Rulings on Employment Status. Except for purposes of providing Revenue Rulings with respect to section 3513, no regulation or Revenue Ruling shall be published on or after the date of the enactment of this section by the Department of the Treasury (including the Internal Revenue Service) with respect to the employment status of any individual for purposes of the employment taxes.
‘(c) Definitions. For purposes of this section-
‘(1) Employment tax. The term ’employment tax’ means any tax imposed by this subtitle.
‘(2) Employment status. The term ’employment status’ means the status of an individual, under the usual common law rules applicable in determining the employer-employee relationship, as an employee or as an independent contractor (or other individual who is not an employee).
‘(d) Exception. This section shall not apply in the case of an individual who, pursuant to an arrangement between the taxpayer and another person, provides services for such other person as an engineer, designer, drafter, computer programmer, systems analyst, or other similarly skilled worker engaged in a similar line of work.
‘(e) Special Rules for Application of Section.-
‘(1) Notice of availability of section. An officer or employee of the Internal Revenue Service shall, before or at the commencement of any audit inquiry relating to the employment status of one or more individuals who perform services for the taxpayer, provide the taxpayer with a written notice of the provisions of this section.
‘(2) Rules relating to statutory standards. For purposes of subsection (a)(2)-
‘(A) a taxpayer may not rely on an audit commenced after December 31, 1996, for purposes of subparagraph (B) thereof unless such audit included an examination for employment tax purposes of whether the individual involved (or any individual holding a position substantially similar to the position held by the individual involved) should be treated as an employee of the taxpayer,
‘(B) in no event shall the significant segment requirement of subparagraph (C) thereof be construed to require a reasonable showing of the practice of more than 25 percent of the industry (determined by not taking into account the taxpayer), and
‘(C) in applying the long-standing recognized practice requirement of subparagraph (C) thereof-
‘(i) such requirement shall not be construed as requiring the practice to have continued for more than 10 years, and
‘(ii) a practice shall not fail to be treated as long-standing merely because such practice began after 1978.
‘(3) Availability of safe harbors. Nothing in this section shall be construed to provide that subsection (a) only applies where the individual involved is otherwise an employee of the taxpayer.
‘(4) Burden of proof.-
‘(A) In general. If-
‘(i) a taxpayer establishes a prima facie case that it was reasonable not to treat an individual as an employee for purposes of this section, and
‘(ii) the taxpayer has fully cooperated with reasonable requests from the Secretary of the Treasury or his delegate,
then the burden of proof with respect to such treatment shall be on the Secretary.
‘(B) Exception for other reasonable basis. In the case of any issue involving whether the taxpayer had a reasonable basis not to treat an individual as an employee for purposes of this section, subparagraph (A) shall only apply for purposes of determining whether the taxpayer meets the requirements of subparagraph (A), (B), or (C) of subsection (a)(2).
‘(5) Preservation of prior period safe harbor. If-
‘(A) an individual would (but for the treatment referred to in subparagraph (B)) be deemed not to be an employee of the taxpayer under subsection (a) for any prior period, and
‘(B) such individual is treated by the taxpayer as an employee for employment tax purposes for any subsequent period,
then, for purposes of applying such taxes for such prior period with respect to the taxpayer, the individual shall be deemed not to be an employee.
‘(6) Substantially similar position. For purposes of this section, the determination as to whether an individual holds a position substantially similar to a position held by another individual shall include consideration of the relationship between the taxpayer and such individuals.
‘SEC. 3513. SAFE HARBOR STANDARDS FOR DETERMINING EMPLOYMENT STATUS.
‘(a) General Rule. For purposes of this title, if the requirements of subsection (c) are met with respect to any service performed by any service provider, then with respect to such service-
‘(1) the service provider shall not be treated as an employee,
‘(2) the service recipient shall not be treated as an employer,
‘(3) the payor shall not be treated as an employer, and
‘(4) compensation paid or received for such service shall not be treated as paid or received with respect to employment.
‘(b) Statutory Employees. Nothing in this section shall supersede the categories of employees described in section 3121(d)(3).
‘(1) In general. The requirements of this subsection are met if the requirements of paragraphs (2) and (3) are met.
‘(2) Investment or income fluctuation. A service provider meets the requirements of this paragraph if the service provider-
‘(A) incurs significant financial responsibility for providing and maintaining the necessary equipment and facilities to perform the work outlined in their qualified agreement, and
‘(i) incurs unreimbursed expenses, or
‘(ii) risks income fluctuations because the remuneration with respect to such service is directly related to sales or other output rather than solely to the number of hours actually worked or expenses incurred.
‘(3) Control of time worked and performance of services. A service provider meets the requirements of this paragraph if the service provider-
‘(A) is compensated upon factors related to the work performed, such as a percentage of revenue or scheduled rates, and not solely on the basis of hours or time expended, and
‘(B) substantially controls the means and manner of performing the services, in conformance with regulatory requirements, the specifications of the service recipient or payor and any additional requirements specified in the qualified agreement.
‘(d) Definitions. For the purposes of this section-
‘(1) Service provider. The term ‘service provider’ means any individual or entity that performs service for another company under a qualified agreement.
‘(2) Service recipient. The term ‘service recipient’ means the person or entity for whom the service provider performs such service.
‘(3) Payor. The term ‘payor’ means the person or entity that pays the service provider for the performance of such service in the event that the service recipients do not pay the service provider.
‘(4) Exceptions. The terms ‘service recipient’ and ‘payor’ do not include any entity which is owned in whole or in part by the service provider.
‘(5) Qualified agreement. The term ‘qualified agreement’ means a written contract between a service provider and the service recipient for whom the services are performed or the payor that provides that the service provider-
‘(A) will not be treated as an employee with respect to such services for the purpose of this title, and
‘(B) has been informed of the Federal tax obligations resulting from such treatment.’.
(b) Conforming Amendments.-
(1) Section 530 of the Revenue Act of 1978 is hereby repealed.
(2) The table of sections for chapter 25 of such Code is amended by adding at the end the following new items:
‘Sec 3512 Controversies involving whether individuals are employees for purposes of the employment taxes.
‘Sec 3513 Safe harbor standards for determining employment status.’.
(c) Effective Dates.-
(1) In general. Except as provided in paragraph (2), the amendments made by this Act shall take effect beginning on the first day of the first calendar year beginning after the date of enactment of this Act.
(2) Repeal of section 530. The amendment made by subsection (b)(1) shall apply to periods in calendar years beginning after the date of enactment of this Act.
2015 CONG US HR 2483