U.S. Sen. John Thune (R-S.D.), a member of the tax-writing Senate Finance Committee, today introduced the New Economy Works to Guarantee Independence and Growth (NEW GIG) Act of 2017 (S. 1549), legislation that addresses the classification of workers – independent contractors versus employees – and creates a safe harbor for those who meet a set of objective tests that would qualify them as an independent contractor, both for income and employment tax purposes. This legislation is important for traditional independent contractor arrangements, like computer consultants, freelance writers, and delivery drivers, as well as all of those individuals who participate in the gig economy and provide a rapidly growing range of services.
“Today’s fast-growing ‘gig economy’ has made it easier for people to offer unique services, like home repair and cleaning, child care, food delivery, or ride sharing, through easy-to-use mobile applications that can be opened with a simple swipe of a finger,” said Thune. “While these gig economy companies have created thousands of new jobs, they’ve also faced new challenges when it comes to how the service providers are classified by the IRS. My legislation would provide clear rules so these freelance-style workers can work as independent contractors with the peace of mind that their tax status will be respected by the IRS.”
Summary of the NEW GIG Act of 2017:
The bill would create a safe harbor based on objective tests, which if satisfied, would ensure that the service provider (worker) would be treated as an independent contractor, not an employee, and the service recipient (customer) would not be treated as the employer. In the context of the gig economy where an internet platform or app facilitates the transactions and payments, that third party would also not be treated as the employer.
The safe harbor focuses on three areas that are intended to demonstrate the independence of the service provider from the service recipient and/or the payer based on objective criteria, rather than a subjective facts-and-circumstances analysis:
(1) The relationship between the parties (e.g., job-by-job arrangement, the service provider incurs his own business expenses, the service provider is not tied to a single service recipient);
(2) The location of the services or the means by which the services are provided (e.g., the service provider has his own place of business, does not work exclusively at the service provider’s location, provides his own tools and supplies); and
(3) A written contract (e.g., stating the independent-contractor relationship, acknowledging that the service provider is responsible for his own taxes, providing the service recipient’s reporting and withholding obligations).
Safe Harbor Only
Given that the safe harbor is based on objective criteria, it may not apply in every case. However, the bill would preserve the common law rules for worker classification as well as the special rules under current law that permit real estate agents and direct sellers to qualify as independent contractors.
The amount paid to the service recipient under the safe-harbor would be reported to the IRS. For gig economy arrangements – three party transactions – the payer would report payments over $1,000 on IRS Form 1099-K (with the option of reporting amounts below that level). For traditional independent-contractor relationships, the service recipient would follow the existing reporting rules and file a Form 1099-MISC showing the amount paid to the service provider. The bill would update the reporting rules to require reporting of payments totaling $1,000 or more in a year, up from $600 under current law. To qualify for safe harbor, the bill would require the service recipient (or payer in the gig-economy model) to withhold a limited amount of the payments made, which would be deposited with the IRS and treated like an estimated tax payment by the service provider.
The bill addresses cases where service providers or service recipients (or payers) mistakenly believe they qualify for the safe harbor but fail to meet one or more of the requirements. As long as there is a good faith effort to comply with the requirements of the safe harbor, the bill would provide relief and only allow the IRS to reclassify the service provider as an employee and the service recipient (or payer) as the employer on a prospective basis.
Tax Court Jurisdiction
Under current law, only the service recipient may petition the tax court regarding misclassification of workers. The bill would expand current law to allow the service provider to bring such a case as well.Click here for a full topline summary of the NEW GIG Act and here for legislative text.