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September 23, 2011

Employers will be able to reclassify their workers and come into compliance with the tax system at a low cost under a settlement program launched Sept. 21 by the Internal Revenue Service.

The program is intended to help taxpayers struggling with the complexity of outdated worker classification rules and give them a fair chance to straighten things out, IRS Commissioner Douglas Shulman said in a Sept. 21 news briefing.

Under the new initiative, unveiled in Announcement 2011-64, employers who prospectively treat their workers as employees can make a minimal payment covering past payroll tax obligations rather than waiting for an IRS audit, Shulman said.

Instead of facing back taxes, penalties, and interest for three years of misclassification, taxpayers will be able to pay about 10 percent of the taxes for the most recent of those years, he said.

The Voluntary Classification Settlement Program (VCSP) also provides that taxpayers will not be liable for any interest or penalties and will not be audited on classification issues for prior years.

“For us, this is about doing the right thing,” Shulman said. In answer to questions from reporters, he said that while IRS is targeting small businesses with the new program, it is open to everyone.

Shulman said the program is intended to offer a simpler solution to a complicated problem. IRS has been legally prohibited from writing new rules since a test to determine a worker’s status became law in the late 1970s, he noted.

To be eligible, an applicant must:

• consistently have treated the workers in the past as non-employees;

• have filed all required Forms 1099 for the workers for the previous three years; and

• not currently be under audit by IRS, the Department of Labor, or a state agency concerning the classification of these workers.

IRS said in a news release that interested employers can apply for the program by filing Form 8952, Application for Voluntary Classification Settlement Program, at least 60 days before they want to begin treating the workers as employees.

According to the agency, participating employers will be subject to a special six-year statute of limitations for the first three years under the program. This is in contrast to the usual three-year statute of limitations that applies to payroll taxes, IRS said.

In answer to questions, Shulman said it is unclear how many employers might come into the program or how much money it would generate. He emphasized that IRS would maintain a “robust audit program” for taxpayers who have deliberately skirted the law. 09-23-2011. Bureau of National Affairs.

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