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Lev
Lev, Tax Advisor
Category: Tax
Satisfied Customers: 29558
Experience:  Taxes, Immigration, Labor Relations
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This is for Lev , who helped me on Sunday the 28th. L

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This is for "Lev", who helped me on Sunday the 28th. Lev, you mentioned to me that I should have my employer amend my W2 to "statutory employee". I looked it up in the publication but it mentioned for certain types of industries such as; insurance sales, traveling sales, commissioned drivers, etc. Were these just samples or am I held to just these categories.    The verbage was, "to include the following." If you remember I was 1099 in Washington and Colorado and because of State law in Virginia I had to be W2 even though I operated the business like a franchise and paid everything.

Generally - if the IRS provides a list of examples and do not specifically mention that the list is not limited - it is understood a complete and final list. The same would be the answer from most accountants or tax persons and - that is more important - from the IRS agent in case of audit.

 

However - in this specific situation the IRS mentioned that officers of charitable organization are deemed to be employees by statute. - http://www.irs.gov/charities/article/0,,id=131138,00.html

I would just use this fact to proof that the IRS doesn't limit the list by four categories that they provided.

 

In California - in the motion picture, radio, or television industry, an artist or author may be treated as a statutory employee under certain circumstances -

- http://wwwedd.cahwnet.gov/pdf_pub_ctr/de231se.pdf

The document also mentioned that statutory employees may be in construction industry.

That are additional examples outside "the list of four" provided by the IRS.

 

A statutory employee is defined as an employee by law under a specific statute. In Virginia - that may be Workers' Compensation Act, that requires to treat certain workers (like you) as employees - anyone employing three or more people must secure their liability either by insurance or other means acceptable under the Act - http://www.vwc.state.va.us/employers_guide.htm

 

While I do not see any direct source that may be used to support the employment status in your situation - as you are not clear fall into any of these four categories - we are in a gray area - I do not see any limitation based on your information that would prohibit such treatment. However you may do such determination on your own - the determination if you are indeed a statutory employee (and the responsibility for such determination) - should be done by your employer.

If your employer decide that you may not be classifies as a statutory employee - there is nothing you may do to force such decision.

Lev and other Tax Specialists are ready to help you

Sorry - there is a typo in the last paragraph that may affect the meaning...sorry for that..

 

However you may NOT do such determination on your own - the determination if you are indeed a statutory employee (and the responsibility for such determination) - should be done by your employer.