Vision Payroll

This week’s question comes from Carl, a partner in a partnership. I am an investor in a partnership and own a 25% interest as a partner. I also work for the business that the partnership owns. Can I be paid through payroll, have tax withheld, and receive a Form W-2? Answer: It is long established in tax law that partners in a partnership are not employees of the partnership. In Rev. Rul. 69-184, 1969-1 CB 256, the Internal Revenue Service confirmed this, stating:

Remuneration received by a partner from the partnership is not “wages” with respect to “employment” and therefore is not subject to the taxes imposed by the Federal Insurance Contributions Act and the Federal Unemployment Tax Act. Such remuneration also is not subject to Federal income tax withholding.

Partners cannot receive a Form W-2 from the partnership. They may receive a draw from the partnership and must pay quarterly federal estimated tax payments to cover the amount of federal income tax and self-employment tax liability they will have, unless covered by withholding on other income. Vision Payroll can work with you and your CPA to determine an appropriate draw and estimated tax payment schedule. You can then receive the draw as a check or direct deposit with each payroll and schedule appropriate deductions such as retirement plan contributions. Contact Vision Payroll today to get started.

The Internal Revenue Service (IRS) recently issued Fact Sheet FS-2008-25, which discusses S corporation officer compensation. Corporate officers, whether in S corporations or C corporations, are generally considered employees of the corporation. Officers who perform only minor services or no services and are not entitled to and do not receive compensation are not considered employees.

As an employee, officers who are also shareholders must receive a reasonable salary to the extent that distributions or other payments are made to the officer-shareholder. Factors considered when determining when compensation was reasonable have included the following:

• Training and experience
• Duties and responsibilities
• Time and effort devoted to the business
• Dividend history
• Payments to non-shareholder employees
• Timing and manner of paying bonuses to key people
• What comparable businesses pay for similar services
• Compensation agreements
• The use of a formula to determine compensation

The S corporation should deduct as fringe benefits any health and accident insurance premiums paid for so-called “2% shareholders”. The amount of the premiums is taxable to these shareholders for income tax purposes, but not for FICA or FUTA.

Pursuant to IRS Notice 2008-1, a medical plan is “established by the S corporation” even if the plan is in the name of the shareholder as long as the S corporation pays the premium or reimburses the shareholder for the premium payment.

Box 14 on the Form W-2 may be used to provide the shareholder with the amount of the premiums paid, but the income should only be reported on Form W-2 and not on either Form 1099 or Schedule K-1. Contact Vision Payroll if you have any questions on Fact Sheet FS-2008-25.

The Federal Unemployment Tax Act (FUTA) is imposed by §3301 of the Internal Revenue Code of 1986 (IRC). The statutory rate of 6.2% was set to revert at the end of 2008 to the original rate of 6.0%. Under §404 of the Emergency Economic Stabilization Act (Public Law 110-343 or the “bailout bill”), the 0.2% surtax has now been extended to the end of 2009. The surtax was originally enacted in 1976 to fund additional payments made through a program that extended unemployment benefits. The loans used to fund the program were retired in 1987, but the surtax continues.

Since IRC §3302 allows most employers a credit against 90% of the tax (not including the surtax) for payments into state unemployment funds, the effective FUTA rate is generally 0.8%. This is calculated by taking the statutory rate of 6.2% and reducing it by the credit of 5.4% (6.0% rate without the surtax times 90%). Employers are not allowed a credit against the surtax. For employees who earn at least the 2009 wage base of $7,000, the FUTA tax liability should be $56. Without the surtax, the tax would have been $42. Contact Vision Payroll if you have any question on FUTA taxes and rates.

In TD 9356, the Internal Revenue Service made final the regulations on disregarded entities effective August 16, 2007. In order to allow taxpayers sufficient time to make the changes required by the regulations, the IRS delayed the effective date for the payroll tax changes until January 1, 2009. Under the new regulations, qualified subchapter S subsidiaries (QSubs) (under §1361(b)(3)(B) of the Internal Revenue Code of 1986) and single-owner eligible entities (under §301.7701-1, §301.7701-2, and §301.7701-3 of the Procedure and Administrative Regulations) that are treated as disregarded entities for most federal tax purposes will be treated as corporations for employment tax purposes. Therefore, owners of single-member LLCs who are treated as sole proprietors for income tax purposes must treat their LLCs as separate entities for employment tax and related reporting purposes. The final regulations clarify that an owner of a disregarded entity will continue to be treated as self-employed and not as an employee of the entity. The regulations also clarify that disregarded entities that are owned solely by a §501(c)(3) organization will maintain the organization’s exemption from federal unemployment tax or FUTA. Contact Vision Payroll if you have questions on changes to the payroll tax reporting procedures for single-owner eligible entities and QSubs.

This week’s question comes from Denise, a sole proprietor. I just hired my husband to work for me in my business. I’m a sole proprietor. Can I pay my husband through payroll? Answer: If your husband (or wife) is a bona fide employee of you in your trade or business, you can pay him though payroll. He would be subject to all regular taxes except federal unemployment and, in most cases, state unemployment. He should also be eligible for most benefits that any other employee would receive, including health insurance, if he works enough hours. Spouses employed in non trade or business situations, e.g., domestic care of a child, follow different rules for taxation. Contact Vision Payroll for your state’s rules or further information on employing your spouse.

In Rev. Proc. 2008-25, the IRS provided a safe harbor method of accounting for accrual-basis taxpayers to use to account for FICA and FUTA taxes. It also established procedures for taxpayers to use to change their method of accounting to this safe harbor method. Under Rev. Proc. 2008-25, taxpayers who use the safe harbor method may deduct FUTA and the employer’s portion of FICA in the same year in which the all-events test has been met for the related compensation and the IRS will not challenge such use. This is true even if the amount of the tax liability is not fixed at the time of accrual of the compensation because, for example, the taxpayer does not know if a particular employee will have reached an applicable payroll tax ceiling when the liability is paid. Examples are provided in Rev. Proc. 2008-25 to further clarify the IRS position. Because the change in accounting method requires the filing of Form 3115, taxpayers are advised to consult their tax advisors for further information.