How do I avoid becoming the "employer" of an independent contractor caring for my Mom in her home?


Caregiver completed and signed the W9. Does the W9 relieve me from the responsibility of all withholding taxes on her account ? Am I at risk here for taxes, penalties, and interest? Caregiver says she received 1099's in the past without ever having to file a W9. Please help me understand the "employer" relationship (or lack thereof). She signed the W9 but only after I agreed to pay her 30% more than initially negotiated. Does this sound right?

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Thanks for all the great information. I am hoping the independent contractor who work(ed) for my Mom will now pursue employment by a Home Care Agency, as we mutually enjoyed our working relationship. Once she is employed by an established Agency, I can hire her and legally deduct the direct caregiving expense, which is substantial. Does that sound right? If she remains an IC, I believe I would have to sacrifice the deduction to avoid IRS attention. It's not worth it. She must be employed by the Agency to keep it all above board.
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Also the I-9 is relatively new for most folks. It's a Homeland Security form to establish identity & eligibility to work in the US. You get them to fill out and you have to check the actual supporting documents (passport is best) to verify and then you or your business keeps the I-9. You don't mail it in but just keep in case there's an audit.

It's different than the E-verify too. E verify has to be done on workers if the biz is a government contractor or other large employers.
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Iggy, thanks for the detail on qualification for independent contractors. As I read this, I now remember that when I was treated as such by law firms, there was some question whether or not that really was the appropriate category. Guess I was (and maybe still am?) some type of weird hybrid??
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In home help is not going to meet the standards to be an Independent contractor. The IRS has a page long checklist to determine IC status as well as info on Household workers. Go to the link GardenArtist posted & carefully read it and the associated topics. Essentially IRS views working at someone's home in which you set their hours, provide what they need to work, provide the work space, tell them what their work is to be, etc means they are your employee and not an IC.
You are going to have to do taxes, FICA, etc.

There are a whole host of firms that do this for at home help (caregivers, nannies, maids) as so much of this must be reported quarterly. It is one reason why often it is just simpler to hire from an agency as they take care of this plus usually also take care of insurance & bonding issues.

Through my biz (an S corp), I use IC and do between 6 -15 1099's annually. Everbody is an IC as we all work dependent on what the client dictates on a specific project for a set & limited timeframe at a location determined by client. Each year I mail or hand out a w-9, an I - 9, an IC questionnaire & a Determination of residency form (for tax credit states) to everybody that my biz will be paying & I expect everbody to fill them out & return with supporting documentation too; everybody who makes $600 + gets a 1099 in January the following year. If someone won't get the paperwork back to me, my tax gal does a attachment to the 1099 copy sent to the IRS with a noncompliance of SS # requested notification. To me, it's really really important to be on the correct & complete side of anything IRS.

I agree with GA that using an agency for at home workers is best.
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I went through something like this recently when considering hiring someone directly to clean for my father. I've also worked and been paid as an independent contractor by law firms.

If someone works as an independent contractor, that person is equired to report compensation that exceed $600 annually, which I believe is the minimum threshhold for reporting. That individual may also be responsible for making other payments such as Federal and State estimated taxes, directly, on her own, but it's not an issue which I can address intelligently or knowledgably. It should be verified by contacting the IRS, your state treasurer's office and/or a tax accountant or similar specialist.

As an employer of an independent contractor, it's my understanding that all you do is pay that person directly, then send an annual 1099-MISC (generally) if the annual payment reaches and exceed $600. This is a good synopsis of independent contractor obligations.

My understanding is that it's incumbent on the individual acting as independent contractor to do the reporting and take any deductions; all you do is provide the 1099-MISC. That was how it worked when I worked as an independent contractor at law firms.

Alternately, if the caregiver wants to be treated as an employee, you would take deductions and be responsible for the withheld amounts being filed with all of the entities for which deductions are held - federal, state, Medicare, etc. This can be a burden for one employee, which was one of my concerns.

Another was that my insurance agent told me I would need to get a workers' comp policy, which is not available as any kind of add-on or rider to a homeowners insurance policy. It's a separate business policy, and in Michigan would have cost between $750 to $1000 a year.

Without workers comp insurance, anyone working for you who became injured could sue you or your parent or both, and since this person was an employee, not an invitee (a significant legal distinction), your homeowners' policy would not provide coverage.

That was enough to make my decision easy: no independent contractors and no individual employees; agencies only.

Hope this helps.
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Yes, by all means do as FreqFlyer recommends. That will be your definitive answer.

In my lay opinion, unless this caregiver has a business? The caregiver is an employee, and you must not only withhold Social Security and state/federal taxes, but must pay the employer's portion of the SS and Medicare taxes as well.

Please be aware that, either way, if this caregiver is injured in your home, your homeowner's insurance will not cover her. Worker's Compensation would, however. But that is only available to you if the caregiver is your employer.

Many people don't know/don't care about this distinction. However, if mom has "something to lose," you will want to make sure you handle this the exact right way.
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I would contact an accountant or CPA to see what would be the best way to handle this.
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