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Proven Strategies: No Horsing Around with Independent Contractors

“Proven Strategies” is a new regular series in the TDN, presented by Keeneland. It is written by Len Green of The Green Group and DJ Stables, who won the 2018 GI Breeders’ Cup Juvenile Fillies with Jaywalk (Cross Traffic).

by Len Green, John Wollenberg & Agnieszka Kagan

It is not uncommon for pinhookers or trainers to employ seasonal workers at sales or around the racetrack. Some of these employees may be considered as independent contractors.

The perception that employers are attempting to circumvent paying payroll taxes by classifying workers as independent contractors has caused the Internal Revenue Service (IRS) to step up its efforts in analyzing this controversial topic more closely.

This article provides an overview of the factors examined by the IRS and offers insight into how to better secure independent contractor status.

The Advantages of Employing an Independent Contractor

Traditionally, many employers have classified workers as self-employed or as independent contractors. There are various benefits to this classification:

1) By positioning themselves as “self-employed” or independent contractors, no payroll or income taxes need to be withheld from paychecks.

2) Independent contractors do not have to be covered under pension plans and employers save on insurance and workmen’s compensation costs.

The IRS Perspective

To help determine whether a worker is an employee or an independent contractor, the IRS has developed a 20-factor control test based on common law principles. The 20-factor test is an analytical tool only, there is no “magic number” of relevant points. The factors are merely points for consideration in evaluating the extent to which the employer can “direct and control” the worker.

Below are some of the more relevant factors to consider when evaluating whether an individual is an employee or self-employed/independent contractor.

Employee Factors

Instructions: A worker who is required to comply with another’s set of instructions is ordinarily considered an employee.

Training: Formal or informal training at an employer’s expense is indicative of an employer relationship.

Integration: Integrating the worker’s services into the business operations generally shows that the worker is subject to control.

Services rendered personally: If the services have to be personally rendered, the employer probably controls the means as well as the results.

Hiring, supervising and paying assistants: Unless workers hire, supervise and pay their own assistants, if any, they are likely an employee.

Continuing relationship: The longer the liaison, the more likely an employee.

Full-time required: A full-time position is indicative of an employer-employee relationship, whereas independent workers choose their own hours.

Oral or written reports: Regular accountability of progress is usually a sign of control.

Payment of expenses: Reimbursement tends to support an employer-employee relationship.

Self-Employed or Independent Contractor Factors

Hours of work: Independent contractors control their own time.

Order of sequence set: Only a nonemployee is free to determine his/her own approach, pattern, priority and schedule.

Multiple assignments: Workers who perform more than one job at a time for multiple different businesses are likely an independent contractor. Exercise riders at tracks tend to fall into this category especially if they rotate among barns or farms. Payment by hour, week or month:Independent contractors are typically paid by the job, not in regular pattern.

Tools and materials: Independent contractors provide their own tools and materials.

Economic loss: A worker who is subject to the risk of economic loss due to a liability for expenses is an independent contractor.

Right to discharge: An independent contractor generally cannot be fired if the contractual specifications are met.

Right to terminate: Employees have the right to terminate their job without incurring liability.

Safeguards to Withstand IRS Scrutiny

Since an IRS audit can result in an assessment of penalties and interest, in addition to the employer/employee payroll taxes that will be due, it becomes incumbent to take measures to preserve the intended working relationship.

Suggestions from The Green Group

1) Apply for an advanced ruling, Form SS-8, entitled “Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding.” The advantage to this filing is to get clarity as to whether a worker is an employee. The form focuses on behavioral control, financial control and relationship of the worker.

2) Enter into a written consulting agreement with language coordinated to the 20-factor control test. The contract should specify the nature of the work to be performed, discuss the terms and conditions and state the responsibilities of the independent contractor.

3) Utilize practices that are consistent with recognized practices in the horse industry, specifically with farm owners, pinhookers and trainers.

State Interpretations

Please check as to your state’s specific regulations. Since some states apply their own standards, often stricter than the IRS rules in terms of reclassifying independent contractors into employees. Some use a three-prong “ABC” test with the employer having the burden to prove that the relationship is that of an independent contractor, rather than as an employee. In other states, an independent contractor is someone you hire to work on a task unrelated to the field of business you are associated in and whose work you have no control over. While still other states use a “level of control” test.

Department of Labor Audits (DOL)

As if a trainer’s life isn’t difficult enough, the DOL has started extensive audits at racetracks to make sure workers are being properly paid for their hours. Since many trainers do not traditionally use “time clocks” to keep track of hours worked, this becomes an expensive issue.

Our team has had success in this area.

Summary

You must analyze whether a potential employer-employee relationship exists with people who work for you.

Penalties can be imposed for failure to withhold income and employment taxes, and qualified retirement plans could be jeopardized if employees who should be covered are not due to misclassification as independent contractors.

Bottom Line

You should have an accountant who is familiar with the Thoroughbred Industry review your practices. You might need to change your procedures to satisfy the complicated IRS rules. If the IRS challenges you and wins, you may be subject to interest and penalties.

If you have any specific questions, please call us for a free one-hour consultation.

The Green Group

Phone: (732) 634-5100

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Modernized IRS Rules Keep Millions in Bettors’ Hands

NTRA looks back at first year since update on tax rules on withholding and reporting.

 

In the first year of operations under newly modernized U.S. Treasury and Intenal Revenue Service (IRS) regulations, there was a $307 million reduction in the amount  of winning pari-mutuel wagers reported to the IRS using form W-2G, according to  statistics released today by the National Thoroughbred Racing Association (NTRA).

This reduction in the amount of winning wagers reported was the result of a dramatic 89% decline in the number of winning tickets flagged for IRS reporting. The declines also led to a $35 million reduction in the amount withheld from bettors’ winnings. The new regulations, which took effect Sept. 28, 2017, recast the Treasury’s definition of the “amount of the wager” to include the entire amount wagered into a specific pari-mutuel pool by an individual rather than the prior IRS standard of using only the base amount of the winning wager.

Based on data provided by CHRIMS, which conducts settlements and other services for many of the nation’s pari-mutuel operators, individual racetracks, and the two largest U.S. totalizator companies–AmTote and United Tote–the NTRA estimates the following nationwide impacts over the first 12 months of operation under the new regulations (10/1/2017 – 9/30/2018 vs. 10/1/2016 – 9/30/2017):

•         The gross amount of winning wagers reported to the IRS on Form W-2G declined $307,700,000 (82%), from approximately $374,500,000 to about $66,800,000;
•         Federal taxes withheld from winning wagers and sent to the IRS declined $35,400,000 (82%), from $43,200,000 to $7,800,000; and
•         The actual number of IRS tickets flagged for W-2G reporting by the IRS declined nearly 89%, from approximately 235,100 tickets to only about 26,350 winning tickets.
From a percentage standpoint, the impacts were equally positive for horseplayers, pari-mutuel operators and horsemen across the country–regardless of the size of the racetrack market. The new regulations also provided positive impacts to advance deposit wagering (ADW) operators and their customers.

“The drastic reduction in the number of winning tickets requiring reporting and withholding is consequential in several ways,” said NTRA President and Chief Executive Officer, Alex Waldrop. “Under the old regulations, it was not uncommon for horseplayers to feel the thrill of ‘winning’ only to have their proceeds reported and/or withheld by the IRS. The old regulations were both unfair and a burden to all involved. A significant overreach by the IRS has been corrected thanks to fair-minded officials at the U.S. Treasury.”

There are numerous specific examples of events where the industry benefited from the new regulations.
On-track at the host venues of the Triple Crown races–Derby Day, Preakness Day and Belmont Stakes Day–the combined number of winning tickets required by the IRS to be reported on Form W-2G fell 96%, with the gross amount of winning wagers required to be reported falling by 87% and the amount of money withheld from pari-mutuel winnings falling 71%. It is likely that similar results were realized nationwide.

On-track impacts were most pronounced at Pimlico on Preakness Day, where the number of tickets requiring reporting fell 99% and the number of tickets requiring Federal withholding fell 100% because there were no winning tickets at Pimlico on Preakness Day that triggered Federal withholding.

On-track at the 40-day 2018 Saratoga Meeting, the number of winning tickets flagged for processing by the IRS fell 96%, the gross amount of winnings required to be reported fell 94% and the amount of money withheld from winning bettors fell 91%.

“The new regulations have been enormously beneficial to every sector of our business,” Waldrop continued. “They would never have transpired without the bipartisan support we received on Capitol Hill and the unwavering support of every segment of the horse racing industry, including thousands of customers who answered our call to action.  Best of all, we will continue to realize the positive impacts from these regulations for many years to come.”

For more than a decade, the NTRA and others promoted legislation to modernize pari-mutuel withholding and reporting. The industry argued that as pari-mutuel wagering increasingly shifts toward exotic bet types like Exactas, Trifectas and Pick 4s, more winning wagers are being reported and more winnings withheld, creating an unfair burden on bettors, pari-mutuel operators and state and federal governments.

Then in 2014, the NTRA developed a new strategy that relied on regulatory, not statutory relief from outdated regulations. Following the new strategy, the NTRA was able to convince the Treasury Department and the IRS to expand the definition of the phrase “amount of the wager” to include the total amount bet on a single ticket (or through an ADW) by an individual into a specific pari-mutuel pool. This one simple change in the Treasury regulations that took effect on September 28, 2017 has led to the significant benefits reported today.

Through September of this year, U.S. wagering has increased 3.95% ($336,724,709) overall while average wagering per race day has increased 7.67% ($180,231), according to statistics provided by Equibase.

 

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Horseracing Wins As Treasury/IRS Issue Updated Tax Rules

The U.S. Treasury Department and the Internal Revenue Service (IRS) today announced that they will formally adopt modernized regulations regarding the withholding and reporting of pari-mutuel proceeds. The National Thoroughbred Racing Association (NTRA) has long pressed for these updated regulations that will allow horseplayers to keep more of their winnings, thereby increasing the amount wagered on U.S. pari-mutuel racing by as much as 10 percent annually, or upwards of $1 billion, according to independent estimates. The new rules were posted late Monday afternoon as a Public Inspection Document. They are scheduled to be officially published in Wednesday’s edition of the Federal Register and will go into full effect by no later than Nov. 14, giving racing associations, totalisator companies, and advance deposit wagering (ADW) operators up to 45 days to implement these important changes; however, some may elect to start as soon as Thursday.

“These landmark U.S. Treasury regulations will have an enormously positive impact on horseplayers, the racing industry, and the federal government,” said NTRA President & CEO Alex Waldrop. “I am extremely proud of the NTRA’s legislative team for spearheading this effort, which will prove to be among the most meaningful regulatory advances made by our industry in decades. The results of this much-needed measure will be horseplayers keeping more of their winnings, racetracks generating more pari-mutuel handle, and government collecting additional tax revenue. This is a sure bet where everyone wins!”

Added Waldrop: “This day would never have come without the persistence of Thoroughbred racing’s friends in Congress, especially Rep. John Yarmuth of Kentucky, Rep. Pat Meehan of Pennsylvania, Senate Majority Leader Mitch McConnell and our many bipartisan supporters on Capitol Hill. We also are indebted to the industry stakeholders and thousands of customers of Thoroughbred racing who signed our petition or submitted public comments in favor of these changes.”

Under the new regulations, the IRS will consider the inclusion of a bettor’s entire investment in a single pari-mutuel pool when determining the amount reported or withheld for tax purposes, as opposed to only the amount wagered on the correct result.

For example, the amount wagered by a Pick Six player who hits with one of 140 combinations on a $1-minimum wager now will be $140, which is the total amount bet into the Pick Six pool. This more accurate calculation will remove the significant reporting and withholding obligations on horseplayers and the unnecessary paperwork for the IRS that was a result of the prior rule that used only the $1 bet on the single winning combination as the amount wagered.

“This is a major victory for all pari-mutuel wagering customers,” said Judy Wagner, the Horseplayers’ Representative on the NTRA Board of Directors and winner of the 2001 National Horseplayers Championship (NHC). “It would not have occurred without the leadership of the NTRA and the support of thousands of horseplayers who actively participated in the process to modernize these regulations.”

The amended regulations, advocated by the NTRA and its legislative team, define the “amount of the wager” to include the entire amount wagered into a specific pari-mutuel pool by an individual – not just the winning base unit as is the case today – so long as all wagers made into a specific pool by an individual are made on a single totalisator ticket if the wager is placed onsite. The modernized regulations will have the same positive results for ADW customers and will not impact how those wagers are currently made.

View the full text of the new rule under section 3402(q) of the Internal Revenue Code here: https://s3.amazonaws.com/public-inspection.federalregister.gov/2017-20720.pdf.

The NTRA has pushed for the modernization of pari-mutuel withholding and reporting rules for several years. As more and more pari-mutuel wagering was directed toward exotic wagering pools it become clear that the tax rules were becoming an increasing and unfair burden on horseplayers as those outdated rules significantly increased the incidence of winning tickets subject to withholding and reporting. These new rules are the product of all the work the NTRA, and other industry stakeholders, undertook with Congressional representatives and Treasury and IRS officials.

“This represents a great triumph by the entire NTRA legislative team, including the bipartisan Horse PAC, which played an instrumental role in the passage of these regulations that will benefit all segments of the industry,” said Horse PAC chairman William S. (Bill) Farish. “We thank the hundreds of individual stakeholders who contribute to Horse PAC; they played a major role in today’s victory.”

Waldrop noted that the NTRA has been working behind the scenes since January with industry groups – including totalisator companies, ADWs, and racing organizations – to ensure a smooth implementation for customers.

“For the industry to fully realize the benefits of modernized regulations for pari-mutuel withholding and reporting it is essential that we deliver a seamless transition to our customers,” he said. “We are optimistic that the industry will be fully prepared to institute these landmark changes by no later than November 14.”

About the NTRA
The NTRA, based in Lexington, Ky., is a broad-based coalition of more than 100 horse racing interests and thousands of individual stakeholders consisting of horseplayers, racetrack operators, owners, breeders, trainers and affiliated horse racing associations, charged with increasing the popularity, welfare and integrity of Thoroughbred racing through consensus-based leadership, legislative advocacy, safety and integrity initiatives, fan engagement and corporate partner development. The NTRA owns and manages the NTRA Safety and Integrity Alliance; NTRA.com; the Eclipse Awards; the National Handicapping Championship; NTRA Advantage, a corporate partner sales and sponsorship program; and Horse PAC®, a federal political action committee. NTRA press releases appear on NTRA.com, Twitter (@ntra) and Facebook (facebook.com/1NTRA).

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