Businesses Performing Income, Payroll Tax Duties For Employers Confirm Compliance With Updated IRS Procedures

Payroll, staffing employee leasing and other businesses that provide workers, staffing, payroll or other related services and the businesses that use these services should review their status to determine if the service provider might be considered to act as the “agent” of their client businesses for purposes of the withholding of income taxes from wages and/or the collection, reporting and payment of income and employment taxes on behalf of another employer business and if so, their responsibilities as agents for these purposes under Revenue Procedure 2013-39

The Internal Revenue Service (IRS) recently released Revenue Procedure 2013-39.  It describes and updates the procedure for requesting the IRS authorize a person to act as agent under section 3504 of the Internal Revenue Code (Code) and §31.3504-1 of the Employment Tax Regulations for purposes of Chapters 21, 22, 24, and 25 of the Code. Special instructions are also set forth for agents authorized to perform acts for purposes of Chapter 23 of the Code.

Chapters 21, 22, 23, 24, and 25 of the Code impose obligations on employers with regard to employment taxes. Specifically, Chapter 21 imposes Federal Insurance Contributions Act (FICA) tax, Chapter 22 imposes Railroad Retirement Tax Act (RRTA) tax, Chapter 23 imposes Federal Unemployment Tax Act (FUTA) tax.  Meanwhile, Chapter 24 imposes Collection of Income Tax at Source on Wages (income tax withholding), and Chapter 25 provides general provisions on employment taxes.

While these Code provisions generally impose these obligations on the common law employer of the employee with respect to whose wages the taxes arise, Section 3504 of the Code authorizes the Secretary to issue regulations to authorize a fiduciary, agent, or other person (“agent”) who has the control of, receives, has custody of, disposes of, or pays the wages of an employee or group of employees, employed by one or more employers, to perform certain specified acts required of employers. Under section 3504, all provisions of law (including penalties) applicable with respect to an employer are applicable to the agent and stay applicable to the common law employer. Accordingly, both the agent and employer are liable for the employment taxes and penalties associated with violations of these requirements.

In addition to updating the procedures generally applicable for parties to act as agents of employers for purposes of income and payroll taxes generally, the Revenue Procedure also sets forth special rules for agents dealing with home health workers as well as certain other special circumstances.

Businesses that could be considered to act as agents of another business should carefully review their status to determine whether their organization could be considered an agent for purposes of these rules either because they openly perform these responsibilities as a declared agent in accordance with current IRS procedures, or because the facts and circumstances under which their business acts as an employee leasing, staffing, professional employment organization (PEO) create a risk that workers treated as employed by the service provider could in fact be recharacterized on audit as common law employees of the customer.

Beyond the employer responsibilities under existing income and employment tax rules, proper classification also may have implications on the parties responsibilities under the employer shared responsibility rules of Code Section 4980H.  In Notice 2013-54, the IRS stated that the IRS might be willing to recognize health coverage provided by a staffing, employee leasing or other firm to a worker where the facts and circumstances reflect that the common law employer of the worker in fact is the customer of the staffing company as coverage provided by the common law employer.  In comments made at an American Bar Association Joint Tax and RPTE Meeting this Fall, however, IRS representatives also commented that they contemplated that this ability would be limited to situations where the staffing entity or other service provider registers as the agent of the customer which was the common law employer of the workers.  Businesses must await further clarifying guidance about whether and how the IRS ultimately implements these rules.

For Assistance or More Information

If you have questions or need help with these or employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer.

A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 25 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters.

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials about regulatory, investigatory or enforcement concerns.

Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News,, Insurance Thought Leadership, Solutions Law Press, Inc. and other publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations. She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications. Her widely respected publications and programs include more than 25 years of publications on health plan contracting, design, administration and risk management including a “Managed Care Contracting Guide” published by the American Health Lawyers Association and numerous other works on vendor contracting.  You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer here.

Other Helpful Resources & Other Information

We hope that this information is useful to you.   If you found these updates of interest, you also be interested in one or more of the following other recent articles published on the Coalition for Responsible Health Care Reform electronic publication available here, our electronic Solutions Law Press Health Care Update publication available here, or our HR & Benefits Update electronic publication available here .  You also can get access to information about how you can arrange for training on “Building Your Family’s Health Care Toolkit,”  using the “PlayForLife” resources to organize low-cost wellness programs in your workplace, school, church or other communities, and other process improvement, compliance and other training and other resources for health care providers, employers, health plans, community leaders and others here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail by creating or updating your profile here. You can reach other recent updates and other informative publications and resources.

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©2013 Cynthia Marcotte Stamer.  Nonexclusive right to republish granted to Solutions Law Press, Inc. All other rights reserved.

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