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1099-NEC for spouse of the S-Corp owner

HOPE2
Level 9

"Hi all,
Wishing you all prosperity and success this tax season!

A new client mentioned that his wife only occasionally does work for the business on a truly independent contractor basis (for example, doing work on her own schedule with minimal supervision).

I have several S-Corp clients who issue W-2s for their wives, but this new client has asked me to issue a 1099-NEC for hers.

 

Also, one of my old client asked me issue 1099-NEC for his wife for next year,2025, instead of W-2 which his S-Corp already issued for 2024.

What is your opinion?
Any help would be appreciated!"

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1 Best Answer

Accepted Solutions
TaxGuyBill
Level 15

Look under "Common Law Rules" in the link below to help make a determination if the worker is an employee or a contractor.

https://www.irs.gov/businesses/small-businesses-self-employed/independent-contractor-self-employed-o...

 

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7 Comments 7
IRonMaN
Level 15

Unless the spouses have an independent business that they are providing the same type of services to other clients, I'm going to put my money on that they really are employees.  Lots of businesses have part time employees that come in when needed now and then, that doesn't make them independent contractors.


Slava Ukraini!
TaxGuyBill
Level 15

Look under "Common Law Rules" in the link below to help make a determination if the worker is an employee or a contractor.

https://www.irs.gov/businesses/small-businesses-self-employed/independent-contractor-self-employed-o...

 

qbteachmt
Level 15

"instead of W-2 which his S-Corp already issued for 2024."

Essentially, he's trying to outsource her job. Geez. Did anyone ask the wife how she feels about the change in worker (mis)classification, the loss of benefits (changes eligibility or potential coverage available for retirement, health insurance, the loss of worker comp coverage if she qualified), the increase in her tax load, the tracking for filing of a Sched C?

"on a truly independent contractor basis"

Truly?

"(for example, doing work on her own schedule with minimal supervision)."

That's not what "independent" means. That's what "self-starter" means. What does she do? Does she do it for other companies, too, as her own company and being a provider to others in addition to his company?

*******************************
Don't yell at us; we're volunteers
HOPE2
Level 9

Thanks for reply: first I should say she is working as W-2 in other company, and when she gets home, works for S-Corp. All her W-2 from S-Corp will be $12000 in 2024.

don’t have experience with this matter, so I’m not sure if the IRS will react to the change in the type of tax document received—W-2 for 2024 and 1099 next year.

It’s genuinely the case that upon returning home from her W-2 job, she takes care of the company’s tasks, even though the nature of the W-2 work is different from this work. ( like a Uber diver can get 1099 but could have a W-2 though)

 

::: the loss of benefits (changes eligibility or potential coverage available for retirement, health insurance, the loss of worker comp coverage if she qualified), the increase in her tax load, the tracking for filing of a Sched C?

Health insurance is deductible on Sch C as you know, or S-Corp, I believe that she does not insurance at her W-2 job.

She can contribute on retirement account as self-employed too.

Worker Comps is a decoration in our country, not very useful, specially if an accident happens in a home office so should bring a proof not happened in the kitchen !! for paying $350 it took 3 months and a lot of paper work, horrible.

She can pay voluntarily on EDD for unemployment. 

Taxload are same:  since he (S-Corp owner)  has to pay 1/2 FICA for her and ADP fee and FUTA and .... may more than SE on her Sch C if the amount would be around $12000

Happy Holidays!

 

 

 

 

 

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BobKamman
Level 15

"don’t have experience with this matter, so I’m not sure if the IRS will react to the change in the type of tax document received—W-2 for 2024 and 1099 next year."

Yes, there is a little man with a green eyeshade who sits at a special desk reviewing each and every 1120-S from small employers for such changes.  However, his job is threatened by a car dealer from South Africa and a Hindu vegetarian (with a biology degree from Harvard).  

Seriously, what IRS computers may be able to compare is the ratio of officer compensation to shareholder distributions on Schedule K-1 not paying FICA tax.  Watching those amounts is the best way to prevent an audit.  But even in an audit, I doubt a revenue agent would propose an adjustment just to change a 1099-NEC to a W-2.  I would worry more about the worker's compensation auditors.

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qbteachmt
Level 15

"It’s genuinely the case that upon returning home from her W-2 job, she takes care of the company’s tasks, even though the nature of the W-2 work is different from this work. ( like a Uber diver can get 1099 but could have a W-2 though)"

I think you're still missing the point of how Worker Misclassification is determined.

Let's use that as an example:

Your neighbor drives for an appliance shop as a delivery and installer. He uses their trucks, drives their route, and has to meet their schedule for arrivals/deliveries, pickups. That's three tests: under whose control, using whose supplies, equipment and at risk issues for insurance on that equipment, traffic, vehicles, what is in the truck (in the case of a truck fire or rollover, for example) and his own medical and worker comp if that truck were involved in a traffic accident. These are ways to understand the regulations that prove this person is not an independent contractor, but an employee in this scenario.

On the weekend, this same person hauls junk and cleans out garages as a side gig, using his own 3/4 ton pickup. This is independent contractor work. He can decide to work or not to work that Saturday, this is his own truck, he carries the insurance, if he damages something he is moving for you, his is the one carrying the risk of that event to make you whole.

See how it doesn't matter if that is the same work or not? When looking at it for that evaluation, notice how he can drive on the weekends for lots of people? But during the weekdays his job is as a regular employee. Even if he also drove evenings for a parcel delivery, such as the local beverage distributor has him driving a route a few nights a week, that's still a W2 job if it's in their truck, delivering to their customers, on their schedule, and it's not a product he bought wholesale to sell as his own business.

The question of "does she do this work for others" is like Your work. You have lots of clients, and if you supply and use your own resources, your own internet, your own software, etc, you are "in business as an independent consultant."

You might also have a client with a place where you go in month end to do their reconciliations and reporting, using their computers, their software, their workspace, their copiers. That would be a W2 job for you or you are misclassified. For it to be Contract Customer instead of Employee, you should be doing all that work at your own schedule, using your own software, your own equipment, your own risks, and incurring your own costs.

In other words, every relationship stands alone. If she is not in the business of what she is doing for his S Corp, and not doing it for other clients, and not personally incurring the risks and costs of this work, it's not independent of the S Corp and she should stay on W2. Of course it's messy when it's a Home Office. Are they writing off the home office on the taxes? On the 1120S or 1040/Sched C?

Her health insurance was only an example of the benefit coverage afforded employees, and the group policy under an S Corp (if the employer offers this) is nearly always better, and cheaper, than the Sole Proprietor can find on the market.

"She can contribute on retirement account as self-employed too."

Not under the S Corp.

"Worker Comps is a decoration in our country"

Oh, nonsense. Maybe you're just lucky enough to not see a co-worker get burned on the job, or get in a wreck while driving a company car to a meeting or on an errand, or lose limbs while working on the railroad.

No, you don't qualify for FUTA as a sole proprietor. Again, these were simply a listing of considerations that will affect her.

Everything about this smells wrong, across the internet. But no one here is an enforcer.

*******************************
Don't yell at us; we're volunteers
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HOPE2
Level 9

I really like and admire your response, especially the part about the workers' compensation auditors.

 

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