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RayAnswers
RayAnswers, Attorney
Category: Business Law
Satisfied Customers: 36989
Experience:  I have 30 years as a business lawyer in Texas
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Customer Question

Must be expert business Attorney/Accountant with in-depth knowledge in Household Employer/Employees vs regular profitable business.. Thank you!
I live in Florida with my wife under the same roof, I have been disabled since a MVA in 1982. Under doctors orders I require LPN care from 40-60 hours a week.
In 1998 I was having trouble with nursing agencies in my area. My PIP coverage is lifetime 100% covered by my insurance company, and they recommended starting our own business to hire LPNs & Aides as employees to work in My Own Home Only For Me. We would become a health care provider and bill them by company invoice weekly for an hourly rate determined by us, and they pay us for the services provided (which they do), and the business is profitable. The Ins Co filed a W-9 when the first bill was submitted and at every year end they send us a 1099 (total yearly payments box [6] Medical & Healthcare payments). The type of business is a Sole Proprietor under my wife's name, with IRS FEIN #, Fictitious Name (DBA), a Payroll processor handles all needed tax compliance and W-3 / W-2s - she is fully compliant. The business taxes are filed with our 1040, all typical business expenses are deducted. Next year we are creating a husband/wife LLC.
The reason for this inquiry came up because one out of many Workers Comp brokers she applied to turned the business down because they said it was a Household Employer with Household employees. This was checked over by an online Business Attorney many, many years ago and they said the company is not considered a Household Employer, but I don't remember the reason. The business has never been audited or questioned by the IRS.
I would appreciate an exact professional answer by a business attorney/accountant who is very knowledgeable in this area of the law. I have checked the Internet over and over without finding a clear answer, all answers I've found don't take into account Household Employers pay their employees out of their own pocket without charging someone who looks at them as a medical provider for the services they provide.
The one workers comp company brought this up and it is not mandatory we acquire WC in Florida because the company only has 2 employees and 1 Independent Contractor - you need 4 or more employees for WC to be mandatory.
Submitted: 4 months ago.
Category: Business Law
Expert:  RayAnswers replied 4 months ago.

Hi and welcome to JA. Ray here to help you today.

Here you appear to have legitimate business.You can change to an LLC, thats a great idea to limit liability here.Your problem is going to be that if employee gets injured without comp they may sue you personally and the LLC.Your homeowners likely will not cover this because you are operating a business in a residential setting.

You may want to check into business coverage for the property or consider wc.Otherwise you are at risk in that area.I am assuming you are paying the employer portion of social security here and operating it ias a legitimate business.It appears you are here.

Reference

https://www.irs.gov/taxtopics/tc756.html

You may be able to procure business liability insurance here if you cannot get wc coverage.You may also protect yourself if you cannot do this to the extent you can by an LLC being the employer in such a situation.Operating a business as you do in your home entails some risks to go along with the obvious advantages of controlling who cares for you and you employ.

Expert:  RayAnswers replied 4 months ago.

Some wc options..

  • Florida Association of Insurance Agents at www.trustedchoice.com
  • Latin American Association of Insurance Agents at(###) ###-####/li>
  • Professional Insurance Agents of Florida at www.piafl.org
  • If you cannot obtain coverage through the standard workers' compensation market, your insurance agent may contact the Florida Workers’ Compensation Joint Underwriting Association (FWCJUA) at(###) ###-####or visit their website at www.fwcjua.com. The workers' compensation rates in the FWCJUA will be higher than the rates in the standard market.
  • By joining a commercial self-insurance fund where the members pool resources and spread liabilities for any commercial and/or casualty insurance; for additional information please contact the Florida Office of Insurance Regulation.

I appreciate the chance to help you today.Thanks again.

Expert:  RayAnswers replied 4 months ago.

I am also wondering once you set up the LLC and grow the business and take one clients outside your home.That might help with comp coverage.It might also raise your income for the LLC here.It also eliminates any claim that you are a home only business.

Customer: replied 4 months ago.
Ray, you said "Here you appear to have legitimate business."I believe I asked 'what makes it a business' and not a Household Employer business? The link you attached was all about Household Employees.The nurses/aides are our employees and we tell them what time to start and end a shift, plus as employees we instruct them what to do (usually their first shift - then they are on their own), we also have company handbook with rules and job description, Safety Manual and Drug testing... Of course the Independent Contractor is different, she is not told when or what to do.The fact is they only work for me in my home...Thanks for the other info but we know all the facts you left..I may need to log off till tomorrow!
Expert:  RayAnswers replied 4 months ago.

So again have you thuoght about growing the business having a few more nurses and serving someone else.It would show that it is a legitimate business beyond your house and that you are trying to grow it here.Just a thought long term.

Expert:  RayAnswers replied 4 months ago.

I don't see anything wrong with what you are doing. I hope the names I gave you might help you get wc coverage.

Customer: replied 4 months ago.
Ray, you have typed a lot of information which I already knew, my main inquiry was to find out what differentiates a regular business from a household employer business. I'd like to believe your word at hand that it appears to be a legitimate business! The links you left to find a Workers Comp carrier I have tried in the past and the brokers could not secure a WC policy for the business because it's too small - approx annual gross $60,000.The fact you've mentioned growing the business outside the household is not why this business was set up - my insurance company allowed and assisted us in setting the business up for "My Nursing Needs", they didn't want the liability to fall on them by paying the nurses directly from the ins co, nor would they even reimbursing us for paying them out of pocket. Besides all that opening the company to the public isn't as easy as you make it sound - it would have to be classified as a Nursing Agency, it is a daunting task that a 64 year old husband nor wife would want to start, as noted online below in starting a nursing agency in Florida:Starting a Home Health Business in Florida is a demanding task, the owner at the least should be a qualified Licensed Practical Nurse. Legal registration and permits for running the Home Health Business are required by the State. Apply for a private duty nursing license at the appropriate city or state department. You will also need to apply for separate license from your state to supply skilled nursing or CNA staff. The business also requires local permits, which can include a health permit from the county’s health department and an occupational permit from the county’s building and planning department. And there is much more!I was almost hoping you were going to say we are a Household Employer, Household Employers do not have to obtain Workers Comp in Florida. The only problem (besides liability) with this is the change in business classifications would set off a red flag with the IRS and also Household Employers cannot write off all the Home Business expenses we presently are allowed to do! And then there is the fact we bill an insurance company for services my wife's home business provides, Household Employers pay from their own pocket..I was going to call you Ray, but I honestly don't think you would have much more to contribute. Thanks for trying but I need a clear decisive answer on what makes us a Home Business and not a Household Employee.
Expert:  RayAnswers replied 4 months ago.

Here the main differentiation is you only serve yourself.This gives it appearance of a household employer instead of a regular business.You are assuming the wc risk here since you don't have coverage.That was why the LLC is a good fall back idea, also growing the business outside your home is another as it shows you are operating it as a real business.The wc folks are more likely to give you wc coverage if you got the income and clients up even a bit.

Thats what I was trying to convey about your unique arrangement.Maybe becoming an LLC is the best you can do , that way any employee has to sue the LLC.Keep your assets in your names personally there really wouldn't be anything they can collect against if there are LLC assets here.

Thanks for the follow up.

Customer: replied 4 months ago.
I'm totally lost for words Ray, if you look at my first Inquiry/post it states we are starting an LLC next year. In fact it's already in the works to be completed and take over on 01/01/2017. I know the sole proprietorship gives us a liability risk and I know all our assets have been at risk, but in 18 years we haven't had one even close incident and the employees work here for over 13-18 years - so lets close that subject please.And as far as growing the business outside the home as I said above requires to much work, and would be illegal. Did you read section 5 from the AHCA website? copy/pasted below:5.1 Can I operate a home health agency out of my home?No, a home health agency cannot be operated from a private residence. A home health agency is not a home-based business due to the traffic with staff coming in and out of the office and the unannounced inspections by AHCA. There are no square footage requirements for your office location. You need room for administrative staff and space for file cabinets to hold confidential files. When you submit your application you must provide the following information:** Evidence of zoning which can be a report or letter from the local government zoning office indicating that the office location is zoned appropriately for use as a home health agency
** and evidence of legal right to occupy the office such as a lease, deed, rental agreement or contractI'd ask you to opt-out but I'm just going to try and get my money back.
Expert:  RayAnswers replied 4 months ago.

I will opt out here no need to reply good luck to you others will pick this up.

Expert:  RayAnswers replied 4 months ago.

Hi and welcome to JA. Ray here to help you today.

If this house was purchased during your marriage I am afraid your husband has an equitable marital interest in the property.As such the title company under NJ law will require him to pay off his lien as well or they will not allow it to close.Please don't shoot the messenger here.I want to be honest with you even if it is bad news.As a former title company lawyer there is no way around it both liens here will have to be paid so that you can convey clear title from both of you.They will require him to sign here too as equitable owner and your spouse.

I appreciate the chance to help you today.Iw ish you the best with the closing.

Expert:  RayAnswers replied 4 months ago.

Please ignore this the site is still having issues.

Expert:  RayAnswers replied 4 months ago.

Please don't rate others will respond.

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