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Robin D.
Robin D., Senior Tax Advisor 4
Category: Tax
Satisfied Customers: 13328
Experience:  15years with H & R Block. Divisional leader, Instructor
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Construction project in CA made $250K profit under spouse

Customer Question

Construction project in CA made $250K profit under spouse name. Can the spouse pay husband who executed the project as compensation so that he can contribute towards SEP-IRA. Wife is under W-2 income and full time employed.
Submitted: 1 year ago.
Category: Tax
Expert:  Robin D. replied 1 year ago.

Hello,
The wife could pay her spouse if this was business and the husband was an employee. The wages for the services of an individual who works for his or her spouse in a trade or business are subject to income tax withholding and social security and Medicare taxes, but not to FUTA tax.

A spouse is considered an employee if there is an employer/employee type of relationship, i.e., the first spouse substantially controls the business in terms of management decisions and the second spouse is under the direction and control of the first spouse. If such a relationship exists, then the second spouse is an employee subject to income tax and FICA (Social Security and Medicare) withholding. However, if the second spouse has an equal say in the affairs of the business, provides substantially equal services to the business, and contributes capital to the business, then a partnership type of relationship exists and the business's income should be reported as a partnership.