Whether a person who is performing services ends up characterized as an employee or as an independent contractor affects a variety of tax issues. For example, the payor’s withholding responsibilities differ, employees being subject to withholding but most independent contractors not being subject to withholding. As another example, if the person is an independent contractor, the person is subject to self-employment taxes barring the application of an exception, whereas the person’s status as an employee means that the social security and Medicare tax responsibility is split between the employee and the employer. A very recent case indicates yet another significance, namely, whether deductible expenses incurred in the performance of the services are deductible in computing adjusted gross income, on Schedule C, or are deductible as employee business expenses, on Schedule A, subject to the 2-percent-of-adjusted-gross-income floor. This recent case caught my eye because the taxpayer was performing services as an adjunct professor.
In
Schramm v. Comr., T.C. Memo 2011-212 (30 August 2011), the Tax Court held that the taxpayer was an employee and not an independent contractor. The court analyzed eight factors in reaching its conclusion. The facts supporting employee classification overwhelmed those supporting independent contractor classification.
Degree of Control: Supporting employee classification: university specified textbook taxpayer was required to use, university determined the topics to be covered, university set the length of the course, university managed enrollment of students, university provided web site used for online portion of courses, university imposed employment policies, such as sexual harassment, drug use, and conflicts of interest, on taxpayer, university treated taxpayer as employee. Supporting independent contractor classification: taxpayer followed independent approach in teaching classes.
Investment in Facilities: Supporting employee classification: university financed staff for recruiting, registering, and keeping records with respect to students. Supporting independent contractor classification: taxpayer maintained home office for teaching purposes, purchased office supplies, paid for an internet connection and computer.
Opportunity for Profit or Loss: Supporting employee classification: taxpayer’s pay based on number of classes taught, with no opportunity to change it. Supporting independent contractor classification: none.
Right to Discharge: Supporting employee classification: despite lack of evidence, it appeared university could terminate taxpayer’s services at any time, university could decline to pay taxpayer to teach additional courses. Supporting independent contractor classification: none.
Work is Part of Principal’s Regular Business: Supporting employee classification: university’s regular business is education of students and evaluation of their work, for which taxpayer was hired to do. Supporting independent contractor classification: none.
Permanency of Relationship: Supporting employee classification: taxpayer had long-term, consistent contractual relationship with university. Supporting independent contractor classification: none.
Relationship the Parties Thought They Created: Supporting employee classification: university and taxpayer acted as though relationship was employment, university withheld taxes, issued a Form W-2 to taxpayer, and did not check the statutory employee box on that form, university informed taxpayer it had classified taxpayer as employee. Supporting independent contractor classification: none.
Provision of Employee Benefits: Supporting employee classification: none. Supporting independent contractor classification: despite lack of evidence, university did not offer taxpayer or other adjunct faculty the types of benefits offered to other categories of workers.
The taxpayer’s situation in
Schramm is very similar to that of adjunct faculty generally. It certainly is very similar to the manner in which my Law School treats adjuncts. The major difference is that adjuncts are permitted to select textbooks rather than being told what textbook to use, though they do receive advice and recommendations on that point. It is possible that some of our adjunct faculty do not maintain home offices for their teaching activities, but I’ve never asked and I don’t think anyone has ever asked. Newly-hired adjunct faculty, of course, lack the permanency of relationship that existed in
Schramm, though that factor alone will not change the outcome. Next time I speak with one of our adjuncts, I need to remember to ask if they receive a Form W-2 or a Form 1099. Strange that I’ve never had this conversation, but I’ve never been involved in the payroll side of things. Perhaps I’ll also ask if they have any deductible expenses related to their teaching, because the school does make available to adjuncts computers and similar equipment. My guess is that, like me, they do have computers used for teaching and other business purposes, and pay for an internet connection through which they connect to the on-line classrooms and exchange emails with students, other faculty, and law school administration.
I know I will get a response even before I see any of our adjuncts. Why? Because some of them read MauledAgain.
Addendum: As expected, I've heard from our adjuncts. They are treated as employees and receive Forms W-2. It has been this way for about five years. Previously, they had been the recipients of Forms 1099.