How to deal with burn-out

Q: I’ve worked hard for several years to build up my business, but the long hours, missed weekends and pressure-packed deadlines are wearing me down. What can I do?

A: There are a great many rewards in running your own business.  But you must also be aware of the trade-offs and sacrifices that come with being in charge.  Over time, the stress and strain may take their toll on your physical and emotional health, affecting relations with your employees, family and friends as well as impacting your business. Fortunately, there are many good ways to keep business burnout at bay. 

First, identify those responsibilities or activities that are causing the stress. What aspects of running your business regularly cause discomfort or even anxiety? Perhaps you dread mundane tasks like bookkeeping and filing reports, or having to make sales calls. You may have customers who are difficult to work with, or do not pay invoices on time. And, because you are responsible for everything your business does, you may find yourself obsessing about things beyond your control.

One cure for an overburdened mind is to shed some of your responsibilities.  Members of your staff with specific skills or leadership potential may be good candidates to take on certain functions. Consider using a company that specializes in offloading the administrative work of businesses. If you’re a solo entrepreneur, it may be time to hire your first employee or outsource to a part-timer.

Schedule some “me” time and stick with it. You follow a regular maintenance schedule for your equipment, so why not treat yourself the same way? A monthly lunch get-together with colleagues and designated family nights are great ways to get your mind off business issues and reconnect with the people who matter most to you. Even a quick walk around the block will do wonders to refresh your mind and spirit.

Sometimes, problems or challenges aren’t the cause of burnout; it’s the lack of them.  Look for new challenges to stimulate your interest and energy. Recapture the thrill you experienced when starting your business by considering expanding or enhancing your products or services. Make sure you plan staffing and resources to support any new venture, however, so you don’t unnecessarily add to your workload.

Seek advice from experts, mentors or experts. Many sources of burnout are common to entrepreneurs and you can learn much from their experience. SCORE offers many valuable resources to help you resolve your small business dilemmas.

Flat Taxes and Other Urban Legends

The Occupy Wall Street protest has infected areas outside New York City and Washington, DC. I just returned from a two week holiday on the south island of New Zealand. We started out in the port city of Dunedin where my brother lives. Dunedin is a town of one hundred twenty thousand located on the southeastern coast of the south island of New Zealand. The city is framed between a harbor and the Pacific Ocean.

Dunedin has a quaint downtown area consisting of small shops, restaurants, and a city park called the Octagon. The Octagon is maybe fifty yards long and fifteen yards wide. Normally used for city events such as veterans' memorial services, during our vacation, the Octagon was infested by members of the Occupy Wall Street protest.

Every generation of twenty-somethings gets a name. We have generations, X, Y, and Z. Now we have a new generation, Generation N (for narcissist). Despite never having been employed or graduating from college, twenty-one year old Johnny Douche believes recorded history began with his birth. The year is twenty-one A.D. (After Douche).

Johnny D is so convinced that his opinions are correct, given his wealth of life experience and education, that he is justified in seizing public property for his exclusive use. The other seven billion of us have no right to ask Johnny D to limit his use of the property. Our opinions cannot possibly approach the importance of his opinions. While I agree with many of the points raised by the Occupy Wall Street movement, I disagree with their sense of self importance.

Republican presidential candidate, Herman Cain, has suggested a tax policy for our country, called “9-9-9.” His proposed plan features a nine percent sales tax combined with nine percent flat tax rates on personal and corporate income. My wife, a life long democrat, renamed his proposal “Nein – Nein – Nein”) “Nein” means “no” in German. Picture my wife, a five foot two petite blond, imitating Adolf Hitler, shouting “Nein, Nein, Nein.” It is incredibly sexy – to Nazis, maybe.

New Zealand has a tax system similar to Herman Cain's 9-9-9 proposal, They have a sales tax combined with both personal and corporate income taxes. The sales tax rate is 15%, while the top personal and corporate tax rates are 33% and 28% respectively. In theory, the sales tax, known as the “goods and services tax (GST)” is a flat tax. However, the New Zealand party is campaigning on a platform of exempting fresh fruit and vegetables from the GST. As you can see, a flat tax doesn't always end up as a flat tax.

Maintaining a sales tax as a truly flat tax isn't the only problem with a national sales tax. While in New Zealand, my brother and I went trout fishing in a mountain stream outside Queenstown. Queenstown is a city in the central part of the south island that is bordered by lake Wakatipu and surrounded by mountains. We hired a fishing guide to take us to a cold, rocky stream filled with rainbow and brown trout. Our guide only accepts cash. So we paid him in Kiwi dollars, each of which is equivalent to about eighty cents U.S.

Why do you think our guide only accepts cash? Maybe he has had problems with bad checks, but I doubt that. He could always accept what New Zealanders (known as Kiwi's) call EFTPOS. That is their national direct debit and credit card payment system. The real reason he only accepts cash is to avoid paying the GST. Electronic payments are tracked by the Inland Revenue Department (IRD) which is the Kiwi equivalent of our I.R.S. As an aside, beginning in 2011, the IRS is requiring the reporting of credit card transactions on 1099 forms.

As sales tax rates rise, the incentive to understate sales rises as well. Our guide only accepts cash, because cash transactions can't be electronically tracked. If you combine Herman Cain's nine percent proposed sales tax with the five percent that we already pay in Virginia, you get a combined sales tax rate of fourteen percent – only one percent less that New Zealand's GST rate. As sales tax rate rise, activity in the underground, cash only, economy also rise.

Cain's Nine-Nine-Nine means most individual taxpayers will be paying eighteen percent in taxes – nine percent in sales taxes on purchases and nine percent in income taxes. That is more than the average tax rate paid by most of my tax clients. Nine – Nine – Nine is a tax increase for most individuals.

Tax rates of nine percent for sales, personal income, and corporate income probably won't raise enough revenue in the United States to even replace our current level of tax revenue let alone make a dent in the budget deficit. The rates will have to be more like fifteen percent for each. If we add a fifteen percent sales tax rate to a fifteen percent personal income tax rate, most U.S. citizens will be paying close to thirty percent of their incomes. I can see my wife goose-stepping and shouting, “Fünfzehn, Fünfzehn, Fünfzehn.” That's “fifteen” in German.

Enter the lobbyists. Do you really believe the second the ink drys on the President's signature on a flat tax plan, congress won't start passing exemptions? We will have oil companies,manufacturers, realtors, and all manner of other lobbyists in line for handouts – all the same people we have now. The reason we have a complex tax system is that a lot of people want it that way and always will.

Joe Paterno

I interrupt my regularly scheduled blog for this rant. I was planning to write “Flat Taxes and Other Urban Legends.” In fact, it is already written. But, I can't in good conscience not spew my feelings about the accusations regarding Joe Paterno. First, here are some personal disclosures. I am not a Penn State graduate. I attended one class in English composition at the Mont Alto Penn State campus when I was a senior in high school. (I got an A, thank you very much.) I have been a Penn State fan my entire life. Two of my siblings are Pitt graduates. To them I write, Dad liked me best. He left me an extra $100K in his will, because he was a Penn State fan too. So you know I am biased. I am unabashedly in the bag for Joe Paterno.

I may regret this blog if some new information comes out other than what has been disclosed through today. If I turn out to be horribly wrong, I promise to write a mea culpa blog, and I will consider appropriate and humiliating punishments readers might suggest – not including my brother Mike.

I am so angry spit is hitting my keyboard as I type. I don't really know where to start this angry spew. So I will start with my favorite Washington Post sportswriter, Mike Wise. A few days ago he wrote a blog placing a lot of blame on Joe Paterno for the actions by that subhuman vermin, Jerry Sandusky. I should write alleged subhuman vermin to be legally correct. Here is where I stand on Sandusky. I won't even let my spell check add his name to the spelling dictionary on my laptop.

Mr. Wise accused Paterno of two specific actions or more correctly omissions of actions. He wrote that Paterno should have done more for the victims of the scumbag, Sandusky, and that Paterno should have been more involved in the investigation.

I sent Mr. Wise a message asking the following question. “What column would you be writing if Joe Paterno had: 1. done more for the victims, 2. been more involved in the investigation?” I suggested that he would then be writing a column about: 1. witness tampering, and 2. obstruction of justice.

I should give you a little background about Mike Wise. Feel free to look this up on the Washington Post web site. Mr. Wise won an award for writing an article that basically stated that Gilbert Arenas was a young, black man misunderstood and exploited by the rich white devils who run the National Basketball Association. Here is how you know physicists are correct about the existence of parallel universes. Only in a fantasy alternative universe, called sports journalism, would someone win an award for article so patently ridiculous. He is a fine writer, but not much of a thinker. I am not writing this to take shots at Mr. Wise. I'll let Gilbert Arenas handle that. Read his article on Arenas, and you'll get that joke.

My experience in the legal arena consists of the following. I have sued, been sued, been deposed, witnessed depositions, been a witness in a criminal case, been an expert witness in civil cases and gotten divorced. I have far more experience in courts than I ever wished. I suspect Mr. Wise's legal experience is limited to paying speeding fines. He doesn't seem too concerned with legal niceties like speed limits. By way of disclosure, I have no speeding tickets. Of course, I probably just jinxed myself for tomorrow's commute. I hereby knock on wood.­

Let's look at the assertion that Joe Paterno should have done more for the victims. When you are involved in a potential criminal case, even if you aren't the target of the investigation, you can't contact potential witnesses. In legal jargon, this is called witness tampering. It's a crime. The idea is that you are attempting to influence the testimony of witnesses, whether that is your intention or not. In our legal system, no good deed goes unpunished. Paterno and the entire evil Penn state football empire would be seen as trying to suppress testimony from the victims. Surely anybody with an IQ above eighty can understand this. Maybe not.

The second assertion is that Paterno should have made more of an effort to push the investigation forward. He should have been more personally involved. There is another legal term for this – obstruction of justice. Paterno and the evil Penn State empire would be seen as trying to influence the police investigation. Oops – they have already been accused of that. This may be a fair accusation in terms of two university administrators.

The problem with evaluating Paterno's actions, as Separate from Sandusky's actions, lies in two areas. First pedophilia is a unspeakably, horrible crime. If Sandusky is guilty, he is truly an evil, defective unit. The world will be better off without his existence. Understandably, we get emotional about pedophilia.

Second, like Notre Dame football and Duke basketball, Penn State football arouses strong emotions. People either love Penn State and what we believe it stands for (remember I am beyond biased), or people hate the program for being sanctimonious schmucks. Ironically, Pitt fans hate Penn State, but Penn State fans don't hate Pitt. That looks to me like an inferiority complex.

To really evaluate Paterno's actions, we need to remove the emotions about pedophilia and Penn State football. We can do that by examining a hypothetical similar situation that doesn't involve all the emotions. To make it really personal, I will make this about me.

Let's assume that I work for a CPA firm, called Stitely & Karstetter. Isn't that crazy? I am going out on a limb on this one. One of the employees I supervise named, Mark David Chapman, comes to me and tells me another of my staff, Jeffrey Dahmer, has killed one of our clients, John Lennon. I haven't heard from John Lennon for a while. So I am suspicious that Mark may be right.

Look at the possibilities. One possibility is that Mark David Chapman had a grudge against Jeffrey Dahmer. Another possibility is that Jeff actually did kill John Lennon. Maybe John Lennon hasn't been killed at all. Another wild possibility, that I can't imagine could possibly happen, is that Mark David Chapman killed John Lennon. What do I really know based on Mark's statements? Am I really a witness to anything? In fact I don't know anything, and I'm not a witness to anything. Should I call the police?

Here is the unfortunate answer. I should not call the police. I should call our legal counsel. Why? Because I am in a very bad situation. If I file a police report, I could be falsely accusing an innocent man, Jeff Dahmer, based on a rumor. That is a legal problem for me. Of course maybe Jeff isn't so innocent. I don't want him killing someone else. So I need to talk to someone. I certainly don't want to talk to any of the participants. That is messing in a potential police investigation. Mike Wise won't like my answer, but I have a lot more experience in the legal world than he does. There are risks in reporting crimes you didn't witness. Our legal counsel is going to make the determination if the police should be called.

What should I do for the victim and his family? Should I call John Lennon's best friend, Paul McCartney, and express my condolences at the murder of his close buddy? Should I say how sorry I am that Stitely & Karstetter would become involved in such an act? By now, you are justifiably laughing.

When we take the emotions out of the case, put ourselves in Joe Paterno's shoes (Oh God, please not those black shoes, white socks, and high water pants.), and look at just the facts we have available, Joe Paterno did exactly what he should have done given the ugly circumstances. He reported Mike McQueary's allegations to his bosses. Yes, he did have actual bosses in Penn State. They fired him – didn't they? His bosses should have spoken to the University general counsel. I heard a couple days ago on the radio that the general counsel said he was never informed about the allegations. I don't know that for a fact. If the president of the university didn't talk to either the general counsel or the police, HE has a problem. And – I have a problem with him.

Let's now deal with the statements from that testicle-less wonder, Mike McQueary. I have never in my life insulted someone the way I just have. OK, I lied. I have maybe insulted a few IRS employees a little worse.

Let me establish some street cred here. During my marriage V 1.0, an incident happened in my house, where a young person was involved in an improper sexual encounter. My ex was unwilling to reveal the incident to me until years later. She feared what I would do – with good reason. I have a well deserved reputation for confrontations. Unlike Mr. McQueary, I would not have witnessed a sex act with a minor and said, “You guys finish up while I call my dad. I'm very distraught.” If I had called my dad, I know he would have said, “Why aren't you kicking this scumbag's ass? I'll kick yours if you don't go back and stop this.” Dad's threat would have been credible. He could kick my ass until he was seventy.

By implying that having testicles is a good thing, I am not trying to insult my female readers. I would not expect a woman to try to confront a criminal physically. Men have a natural propensity for physical confrontations with other men. We live for confrontations. How else do you explain drunken bar fights and road rage? Every weekday morning at 7:15 AM, I am on route 28 south trying to get to work. I hope someone will cut me off, so I can beat the living crap out of him. By 7:20 AM, I would run over a crippled old lady to get to the left lane. This is my attempt to intimidate you from driving on route 28 south in the morning. I need something to make my commute tolerable. I want all you people off my damn road.

For the ladies, here is how I think you would have properly reacted to the situation Mr McQueary faced. You would have made a comment about the adequacy of Sandusky's equipment. Isn't that what you always do to us? That would have brought down the tent, so to speak.

A few days ago, an e-mail was found where the ball-less wonder, McQueary, claims to have spoken to the police shortly after Sandusky assaulted a young boy in a Penn State shower. There is a little problem with McQueary's claim. Read the grand jury report. McQueary didn't tell the grand jury that he had talked to the police. Apparently, he didn't tell the police he had talked to them either. The police have no record of his report. Of course, if you believe that idiot, Steve Czaban, from the radio station, Sportstalk 980, McQueary was afraid of the Penn State “mafia.” Yes, the useless little prick used the term, mafia. The mafia would have suppressed the police report. I don't think Czaban meant to make an ethnic insult about an Italian, Paterno. That would be someone Polish insulting an Italian. As Larry the Cable Guy said, “That would be like wiping before you poop. It don't make no sense.”

Here is a visualization exercise. Picture me in a short white Penn State cheerleader outfit with blue and white pom poms. I say, “We are.” You say, “The Mafia.”

To give myself a little time to cool down while writing this, I consulted an online thesaurus. I was looking for a synonym for “idiot.” Since I have used that term about four thousand times so far, I thought I would give you a break and find a new word. The first synonym listed was “sports journalist.” The second was “Steve Czaban.” If you ever agree with him, surrender your G.E.D. I'm a little calmer now.

The district attorney in the Sandusky case has filed perjury charges against two Penn State administrators based on McQueary's testimony that he fully and completely informed the two about the incident in the Penn State shower. The grand jury report called the ball-less wonder a credible witness. How credible is he after the e-mail he sent? Not very. He is now a proven liar.

Here is a prediction for you. The two Penn State administrators will plead guilty to a lesser charge of making false statements or something like that. They won't accept a plea agreement, because they consider themselves guilty. They will accept a plea, because the prosecutor is playing with house money – tax money. She has an unlimited budget. The accused do not. If you don't believe a prosecutor will spend ridiculous amounts of tax money on a case rather than lose face, see Ken Starr versus Bill Clinton. More than $50 million was spent on a political witch hunt (I'm a Republican). We have a lovely legal system don't we?

This is what I want you to take away from this blog. First check your emotions before you jump to conclusions. That means I would like Mike Wise to take a Midol before writing the next column about this subject. Based on what we know today, Joe Paterno did exactly what was required and prudent based on what he knew.

You might reasonably ask, “Frank,since you are in the bag for Joe Paterno, what would convince you that he did something wrong?” I'm glad you asked. If we find out that Paterno knew about several earlier instances where Sandusky was accused of similar conduct and had good reason to be suspicious, I will accept a suitable punishment suggested from one of my readers. Please feel free to e-mail me about punishments you feel would be appropriate for writing this blog, fstitely@skcpas.com. I promise to take pictures.

If you agree with me at this point, please read Mike Wise's column at http://www.washingtonpost.com/sports/if-jerry-sandusky-allegations-are-true-penn-state-and-joe-paterno-deserve/2011/11/05/gIQAYIucqM_story.html. Please also read the grand jury report http://www.freep.com/assets/freep/pdf/C4181508116.PDF. Hopefully you will understand it on a deeper level than Mr. Wise. Then, whether you agree with me or disagree, send a message to Mr. Wise at wisem@washpost.com. This is still a free country - at least until you are targeted by a district attorney.

Since I hate to ever end a blog on a down note, if you are a football fan, please take a look at this web site, http://occupyherbstreit.tumblr.com/. It is a great parody of the Occupy Wall Street movement. My brother, Mike, showed me this site when we visited him in New Zealand. Pitt fans are good for something.

Next time, I promise to get back to business. Thanks for reading! Frank

Anticipate Trends to Capture New Business

Q: My small business has been relatively successful so far. What’s the key to remaining successful?

A: Owners of new and growing small businesses today know one thing for sure: conditions on the business playing field can change rapidly. The technology that seemed cutting edge last year is now outdated; or worse, obsolete. Buyer moods can swing dramatically, and marketing strategies are in constant flux.

Anticipating trends can be extremely valuable in keeping you current on everything from sales strategies and customer desires to technology tools and the general economy. As your business grows, change will be inevitable and small business owners should constantly look ahead and seek out ways to shake things up.  You need the attitude that whatever is done today can always be done better.

But how can you tell the difference between a fleeting fad and a true trend? Louis Patler, a market research guru for companies such as American Express and Dell, has spent decades tracking emerging trends and studying their impact on business. He says the key to successfully piloting a business in the years ahead will be embracing new ways of thinking.

For example, Patler says that truisms like “stick to what your business does best” are outmoded. If you want your business to grow, consider that past business traditions and processes might only hold you back. Trying new approaches is vital.

Not all customers are created equal. Some are more valuable and loyal than others, and those are the ones you should lavish the most attention on with special savings and service offers.

Advances in technology will continue to radically change how small companies do business. You will need to keep up. Small business owners who know how to acquire and manage information will achieve the most success. Capturing and analyzing data about customer needs, wants, behavior and how they use your product or service will become increasingly critical.

And just as your customers will put pressure on you, you should challenge your suppliers to find ways to reduce their prices, improve their delivery times, or evolve their materials or services to better meet your changing requirements.

To get ideas about new products, services or markets talk to your customers and suppliers, attend trade association meetings, and read trade journals and other materials. Anticipating trends in the business environment is not easy but is essential in remaining successful over the long term.

A hard-working online ad that knows what it's doing

Here's a first: I actually found an online ad I like that targets SMEs.

Below are three screen caps from PROFITguide.com for an animated ad from global business bank HSBC.

It's a simple ad, eye-catching and innovative, that incorporates strong words and great graphics. Here's what I like about it:

* The colorful images of the nesting matryoshka dolls stand out nicely against a generous white background. Once you notice them, you can't help but see that they represent a number of cultures - not just the Russian folk costumes you'd expect to see. A very creative concept, well executed.

* As you admire the dolls, the bank tosses us a strong headline: "In the future, there will be no markets left waiting to emerge." It's a great example of thought leadership, getting you thinking about the successful growth of so many markets once called "developing countries." But the cleverness of the line makes you ponder - perhaps for the first time - that there is a limited number of fast-growth emerging nations. So perhaps it's time your business explored those markets.

* The final sell line "HSBC's on-the-ground experience can support your emerging trade needs" does many things. It points to the bank's competitive advantage (its worldwide branch network), and offers a specific benefit (personalizing the message with the all-important word "your"). Finally, it ties the message together by repeating the word "emerging." You rarely see such hard-working copy on the Net.

* Finally, there's a direct appeal to click on the ad "to find out more." Many online marketers fail to include that call to action, although research shows that requesting people to take action significantly increases the chance that they'll actually do so.

Good to see an advertiser that takes their work so seriously.

Misclassify Your Workers II

Monday and Tuesday this week, I attended a corporate tax update class in Ocean City, Maryland. While I was out of the office, my beloved Jen Aniston stopped by. On Facebook, I posted a picture that proves she was actually there. She signed her picture and even wrote “I miss you, XOXO.” For those of you, who only understand English, “XOXO” means hugs and kisses. We are a really affectionate couple. Silly me – I forgot to tell her I would be in Ocean City. She could have joined me there. Paul would have had to give up the back bedroom in his condo, where we slept during the conference. Paul slept in the back bedroom and I got the pull out sofa. We didn't sleep together in the back bedroom to be perfectly clear. More correctly, I should say we slept AT the conference.

If someone invites you to a corporate tax update conference, punch him in the face. Sitting through a corporate tax update class is like learning about new methods of waterboarding – minus the celebrity appearance by Dick Cheney.

In my first installment of “Misclassify Your Workers” I covered the basics of determining whether your workers are truly independent contractors or employees. I also showed an example of a clearly misclassified worker and wrote about an IRS program administered in cooperation with state unemployment tax offices. If you missed part I, please read it first. In this installment, I will write about one of our clients, who did everything perfectly and had a great audit outcome. I will also explain exactly what they did correctly and why it worked so well. Finally, I will tell you about an IRS amnesty program if you have been misclassifying your workers.

In part I, I wrote about how I found out about the joint IRS / unemployment tax office audit program. The client, who was audited, requested that I attend the audit, and it was my pleasure. They were as absolutely well prepared as they could possibly be. Before the audit, I told them they were probably not being audited by the state unemployment tax office to see if they had incorrectly completed their quarterly unemployment tax forms. They were being audited to determine if they were misclassifying employees as independent contractors. Instead of spending a lot of time reviewing their payroll records, I asked them to prepare a file for each independent contractor for whom they had issued 1099-MISC forms. They used a payroll service. So I was certain the unemployment tax forms were in order.

In the file, I asked them to assemble a number of documents for each independent contractor. First, they retrieved copies of the W-9 forms they had required of each contractor. A W-9 form is given by a company to its independent contractors. The contractor completes the form, giving his / her federal tax ID number, business name, and type of entity.

Next, in each file they placed a copy of the contractor's proof of liability insurance. Yes, my client requires contractors to have liability insurance policies. Why? A contractors liability insurance is a level of assurance that my client won't suffer losses if the contractor destroys a customer's property. But that isn't the reason for the purposes of our audit. A liability insurance policy supports the concept that the contractor is really in business – not an employee. Do your employees have liability insurance? Of course not. A workers compensation policy is even better. However, in most states, very small companies aren't required to have them.

Third, my client put copies of invoices submitted by each contractor in the files. Yes, the contractors invoice them to get paid. Do employees submit invoices to get paid? Of course not. As you can see, we are building a strong case that each contractor is a separate business.

When the auditor visited, all of the files were in order and presented to him. The audit result was perfect. No contractors were reclassified as employees. My client had prepared perfectly. This audit was won before the auditor set foot in the office. There are some other items I think would be great to further convince an auditor that your contractors are properly classified.

First, to be separate legitimate businesses, your contractors should really have business licenses. In Virginia, business licenses are issued by the counties. If I were an auditor, I would place great weight on this. In my experience, however, they place next to no emphasis on business licenses. They place far more emphasis on another factor, probably unintentionally.

Independent contractors should have fictional names. In my bedpan cleaning example from part I, the employer might have entirely escaped scrutiny if the 1099 form had been issued in a name like “Bedpan Technologies, LLC” instead of “Frank Stitely.” The 1099 issued to the LLC would have a federal employer identification number on it. One issued directly to a person normally has a Social Security number on it. Auditors look at Social Security numbers on 1099 forms the way the Army's predator drones look at terrorists. Find and destroy.

I would suggest going one step further with your contractors. Help them organize their limited liability companies. I don't mean paying the $100 fee (in Virginia). Just forcefully suggest it as a requirement for having you as a customer.

As you can see, surviving an independent contractor audit can be easy if you gather the proper documentation. However, what can you do if you suspect there is no way you could survive an audit? The IRS is offering an amnesty program. There are a number of requirements to participate. In short, you can't already be in the process of an audit. That's too late. If you agree to fess up and become a fine upstanding employer in the future, you can get away with paying just 10% of the payroll taxes for which you would be liable on audit. And you only have to pay for one year. You also have to agree to treat all of the workers in question, and similar workers in the future, as employees. This is a great deal. If your business is grossly non-compliant with the independent contractor classification rules, run to your nearest IRS office and confess. Confession is not only good for the soul, it might save you a lot of money in an audit.

As always, if you want non-snarky tax and accounting advice, please visit www.skcpas.com. Thanks for reading!!

Frank

Misclassify Your Workers

This past weekend Laura and I visited my oldest daughter at James Madison University. We went to watch a football game on Saturday afternoon and just catch up with Meg. Early on Saturday afternoon, Meg and her roommates held a pregame cookout. At the cookout, I met Meg's BFFRN. For those of you not fluent in text speak, that means boyfriend for right now. I liked him a lot. He is a Capitals fan, so liking him was easy. After a couple of beers and a little sports conversation, I unloaded my pistol and put it away.

The next morning I called Meg from our hotel to tell her we were leaving to pick her up for a late breakfast. We weren't out the door yet. So that gave her about half an hour to get ready. When we pulled up to her apartment, we saw her BFFRN walking out of the apartment. In my younger days, half an hour was plenty of warning to vacate my girlfriend's apartment when her parents were on the way. Fifteen minutes warning was even enough for me to get a shower first. He had a sheepish look on his face when we greeted him. We told him that we were young once. We weren't going to hassle him. I did reload the pistol, however. I hope his life insurance is paid.

I apologize in advance for this being a two part piece, but this is an urgent topic for business owners. Please indulge me this time. In this first part, I will tell you about a new audit program the IRS is using to catch employers, who are misclassifying employees as independent contractors. I will talk a little about rules for classifying workers as employees or independent contractors. Then I will show where a company has gone horribly wrong in their policy. In the second installment, I will show you how to avoid problems in an independent contractor audit and talk about a client who survived an audit by doing everything right.

Two months ago, I got a message from a client telling me that the state unemployment tax people had scheduled an audit of their payroll. This type of audit is usually to determine if you have paid all of the unemployment tax payments that you owe. I have helped clients through a lot of these over the years. The client wanted me to attend the audit and I agreed.

During the course of the audit, I struck up a conversation with the auditor. I usually try to develop a friendly relationship with auditors. If I can get an auditor to view my client and me as good people, we may be able to get the benefit of the doubt if an issue arises. During the course of the conversation, he told me that this audit was part of a IRS program to identify employees misclassified as independent contractors. To make this clear, this was a state unemployment tax audit that was part of a joint program sponsored by the IRS. At this point, I knew the auditor didn't really care about auditing payroll. He was interested in auditing my client's 1099 forms. He was looking to reclassify independent contractors as employees. Since that first audit, I have had a couple more clients audited under this program. The first audit was in Maryland, but the subsequent ones were in Virginia. This is a national program.

To determine if you have misclassified an worker as an independent contractor, the IRS considers three factors: degree of behavioral control, degree of financial control, and relationship. In short, if you exercise significant control over a worker, that worker will likely be considered an employee by the IRS. If you have classified that worker as an independent contractor, the IRS will assess the taxes that you should have paid if you had treated the worker as an employee – plus interest and penalties. Rather than go into a long discussion of the three factors, I will show an example of a misclassified worker.

Let's say you own a nursing home, and you need to hire someone to clean bedpans. You hire some miscreant, named Frank Stitely, just to throw out a name. You don't really want to pay the employer share of Social Security, Medicare, and unemployment taxes for him. So you give Frank a contract that explicitly states that he will be treated as an independent contractor, not an employee. In addition, you hand him a W-9 form to complete. Frank dutifully signs the contract and completes the W-9 form using his Social Security number as his taxpayer identification number. Some days cleaning bedpans seems preferable to preparing tax returns.

In the contract, you agree to pay Frank twenty dollars per hour. You tell him that the going rate for bedpan duty is $15 per hour, but you are paying him more since he is an independent contractor to cover his taxes. To perform his duties, Frank has to come to your facility from 8:30 A.M. To 5 P.M. just like your other employees. He will use your bedpans, and you agree to pay him every two weeks just like everybody else. He also has to submit the same timesheet everyone else uses.

Frank is happy processing poo until he goes to S&K to get his income tax returns prepared. There, a very knowledgeable tax preparer tells him that he is paying way more in taxes than he would if you had treated him as an employee. The tax preparer goes further and has Frank complete an SS-8 form. An SS-8 form is a form that can be submitted to the IRS to ask them to determine if a worker should be classified as an employee or an independent contractor. Frank is no longer a happy little bedpan jockey. He mails the form to the IRS, and a few months later you get a cryptic letter from the IRS telling you that a nice man in a boring blue suit will be visiting your facility to determine if you are misclassifying employees as independent contractors.

How do you think you will fare in this audit? Let's evaluate Frank's situation against the three factors the IRS uses to determine the correct status. First, what is the degree of behavioral control you exercise over Frank? He works in your facility, using your tools (bedpans), and is required to follow all of the procedures your employees follow. Strike one.

What is the degree of financial control you exercise over Frank? He gets paid by the hour just like your other employees. He has no risk of financial loss. In other words, he incurs no business expenses. You pay for all of those. Strike two.

What is your relationship with Frank? You had him sign a contract that stated that he understood that he would be treated as an independent contractor. You also had him complete a W-9 form and issued a 1099-MISC form to him after end of the year. All of that is in your favor. However, Frank does not have a business license and does not carry a liability insurance policy. He only works for you and isn't really in business for himself. Strike three and you are out. Taxes,penalties, and interest are in your future.

Unfortunately, I see a lot of situations like Frank's. The more a worker looks like an employee, the more likely he is to be reclassified as one by the IRS. In the next installment, I will show you some ways to make certain you can survive an independent contractor audit.

For more informative tax and accounting information, please visit the main S&K web site, www.skcpas.com. Thanks for reading and go Redskins! Beat those dog hating Eagles.