THE IRS DEFINITION
The Internal Revenue Service uses these criteria to determine whether an individual is an employee or an independent contractor. The worker is an employee if...
§ You or your representative tells the worker where, when, and how to work.
§ You train the worker.
§ The business performance depends on the worker.
§ The worker has a continuing relationship with the company.
§ The worker's services must be personally rendered by him/her.
§ You set the worker's work hours.
§ The worker works on the employer's premises.
§ You are paid by the hour, weeks, or month.
§ You furnish tools and materials.
§ You can fire the worker without violating a contract.
§ The worker has a right to quit without incurring a liability.
§ The worker does not offer the worker's services to the public at large.
§ The worker has no opportunity for profit or loss as a result of the worker's service.
§ The worker has no significant investment in the business.
§ You require the to submit oral or written reports.
§ The worker is a corporate officer.
SECTION 530 SAFE HARBOR RULES
Section 530 provides certain safe-harbor rules. If you could fall under these safe-harbor rules, the IRS could not re-define the worker as an employee. In general if, the
§ company treated in individuals consistently, as a contractor, and the
§ company was in full compliance by filing all required forms such as Form 1099, and if, contractor
§ company could rely on one of three basis for their practice of carrying the worker as a contractor
1. Judicial precedent (A court case in the company's favor)
2. Past IRS Audit (A past IRS audit determine the worker to be a contractor)
3. Industry Practice (There is a long-standing recognized of treating such workers as contract)
§ then, the IRS could not change the status of the worker to employee.
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