The IRS offers a settlement option for companies that suspect they have been misclassifying their independent contractors and wish to reclassify them as employees.
The Voluntary Classification Settlement Program (VCSP) requires companies to meet certain eligibility criteria to participate but, in exchange, the IRS rewards participating companies with a steep discount off potential back taxes and penalties.
To participate in VCSP, a company:
- Must declare its intent to reclassify one or more independent contractors as employees;
- Must have consistently treated this class of workers as non-employees;
- Must have filed Forms 1099 for payments made to these employees; and
- Cannot be under a misclassification audit by the IRS, DOL, or a state government.
Benefits for participating companies include:
- Pay only 10 percent of the employment tax liability that would have been due on compensation paid to the workers for the most recent tax year, determined under the reduced rates of section 3509(a) of the Internal Revenue Code. See VCSP FAQ 15, for information on how payment under the VCSP is calculated. Also see Instructions to Form 8952;
- No liability for any interest and penalties on the amount; and
- No IRS employment tax audit with respect to the worker classification of the workers being reclassified under the VCSP for prior years.
The settlement process requires companies to sign a closing agreement with the IRS.
Is this a good deal? It can be, but it depends on the overall circumstances. Some factors to consider before applying include:
- Whether Section 530 Relief is available instead. This may be a better deal, if all criteria are met.
- VCSP provides relief from the IRS only. It does not have any effect on a potential misclassification audit or finding by the DOL or a state government agency. It also does not protect a company against misclassification litigation, including class actions.
VCSP may be a good option for companies already committed to reclassifying contractors, but it is not a panacea. Companies who participate remain exposed to other types of claims. The best course of action for companies considering reclassifying its contractors and participating in VCSP is to consult with legal counsel first.
More on the VCSP program can be found on the IRS’s website here.