The “New” IRS Independent Contractor Test – The More Things Change The More They Stay The Same

irs pub 15 a

You may be able to figure your liability using special section 3509 rates for the employee share of social security and Medicare taxes and federal income tax withholding. The applicable rates depend on whether you filed required Forms 1099. You can’t recover the employee share of social security tax, Medicare tax, or income tax withholding from the employee if the tax is paid under section 3509. You’re liable for the income tax withholding regardless of whether the employee paid income tax on the wages.

Withholding of tax on wages includes income tax, social security and medicare, and a few taxes in some states. Certain minimum amounts of wage income are not subject to income tax withholding. Wage withholding is based on wages actually paid and employee declarations on federal and state Forms W-4. Social Security tax withholding terminates when payments from one employer exceed the maximum wage base during the year. The higher withholding rate tables are designed to work for employees with two employers (including married employees filing jointly if both spouses are employed by employers who pay wages subject to income tax withholding).

Under Step 2, employees either enter an additional amount to withhold per payroll period in Step 4(c) or check the box in Step 2(c) for higher withholding rate tables to apply to their wages. In Step 3, employees decrease their withholding by reporting the annual amount of any credits they will claim on their income tax return. Employers will continue to figure withholding based on the information from the employee’s most recently submitted Form W-4. 15-T allow employers to figure withholding based on a Form W-4 for an earlier year as well as the redesigned 2020 Form W-4.

irs pub 15 a

Publication 15-A – Main Contents

However, with respect to certain employees covered by a CPEO contract, you may also be treated as an employer of the employees and, consequently, may also be liable for federal employment taxes imposed or wages and other compensation paid by the CPEO to such employees. Section 3402(i) provides that the Secretary may by regulations provide for increases in the amount of withholding in cases in which an employee requests such changes. The current regulations express this rule as an agreement to withhold “an additional amount” from the employee’s wages.

Generally, as an employer, you’re responsible to ensure that tax returns are filed and deposits and payments are made, even if you contract with a third party to perform these acts. You remain responsible if the third party fails to perform any required action. Before you choose to outsource any of your payroll and related tax duties (that is, withholding, reporting, and paying over social security, Medicare, FUTA, and income taxes) to a third-party payer, such as a payroll service provider or reporting agent, go to for helpful information on this topic. If a CPEO pays wages and other compensation to an individual performing services for you, and the services are covered by a contract described in section 7705(e) between you and the CPEO (CPEO contract), then the CPEO is generally treated as the employer, but only for wages and other compensation paid to the individual by the CPEO.

In addition, wages, with certain exceptions, are subject to social security and Medicare taxes. See section 15 for more information on the exceptions.

However, with respect to certain employees covered by a CPEO contract, you may also be treated as an employer of the employees and, consequently, may also be liable for federal employment taxes imposed on wages and other compensation paid by the CPEO to such employees. For more information on the different types of third-party payer arrangements, see section 16. Sick pay paid by you or your agent is subject to mandatory federal income tax withholding. An employer or agent paying sick pay generally determines the federal income tax to be withheld based on the employee’s Form W-4.

Employees who have a Form W-4 on file with their employer from years prior to 2020 generally will continue to have their withholding determined based on that form. Any economic impact on small entities that have an income tax withholding obligation is generally a result of the change in underlying substantive tax rules which led to revisions in the method of computing withholding, not these proposed regulations. Because the proposed regulations preserve the option of continuing to use old Forms W-4 for existing employees who have not had significantly changed circumstances, the proposed regulations minimize impact of the statutory changes on employers, including small entities.

Thus, retirement systems should continue to use the withholding tables under Section 5 of IRS Publication 15-T, Federal Income Tax Withholding Methods, with any new 2020 Form W-4P submitted. In Step 4, employees may increase or decrease their withholding based on the annual amount of other income or deductions they will report on their income tax return and they may also request any additional federal income tax they want withheld each pay period. Employees hired and paid wages on or before December 31, 2019, who failed to furnish Forms W-4 have historically been treated as single and claiming zero withholding allowances. This default rate will continue to apply to these employees hired and paid wages on or before December 31, 2019, who fail to furnish a valid Form W-4.

Employees may use the Tax Withholding Estimator, may enter an amount computed on the Multiple Jobs Worksheet, or may select higher withholding rate tables by checking the box in Step 2(c) of the form. If the box in Step 2(c) is checked, Publication 15-T instructs employers to prorate and apply one-half of the standard deduction and marginal rates that account for equal wages for employment held concurrently. Thus, in the case of married taxpayers filing jointly, Publication 15-T applies the parenthetical in section 3402(f)(E), which allows one-half of the standard deduction to an employee who is married and whose spouse is receiving wages subject to withholding. (Publication 15-B uses the term “employment taxes” to refer to federal income tax withholding as well as Social Security and Medicare (FICA) and federal unemployment (FUTA) taxes.) Publication 15-B is a supplement to Publication 15 (circular E) and IRS Publication 15-A (Employer’s Supplemental Tax Guide). The discussion on the alternative methods for figuring Federal Income Tax Withholding and the Tables for Withholding on Distributions of Indian Gaming Profits to Tribal Members are no longer included in Pub.15-A.

Information For…

For the latest information about developments related to Form W-4, go to These proposed regulations are generally compatible with the income tax withholding system in effect for 2019, as well as the system in effect for 2020, and as discussed in the Proposed Applicability Date section of this preamble, may be relied upon by employers for withholding until final regulations are published. These proposed regulations do not independently impact employers or employees because these regulations support both the 2019 and 2020 Form W-4 and related withholding procedures, and employees are not required to furnish a new Form W-4 solely because of the redesign of the Form W-4.

You continue to owe the full employer share of social security and Medicare taxes. The employee remains liable for the employee share of social security and Medicare taxes. Also see the Instructions for Form 941-X or the Instructions for Form 944-X. The amount of tax withheld is based on the amount of payment subject to tax.

The employee can’t choose how much federal income tax will be withheld by giving you or your agent a Form W-4S. Sick pay paid by an agent is treated as supplemental wages. If the agent doesn’t pay regular wages to the employee, the agent may choose to withhold federal income tax at a flat 22% rate, rather than at the wage withholding rate. 15 for guidance on withholding employment taxes from supplemental wages, including the rules for withholding federal income tax when wages to an individual exceed $1 million during the year.

  • In the past, the value of a withholding allowance was tied to the amount of the personal exemption.

More In Forms and Instructions

The 2020 Form W-4 takes into account estimated tax credits for dependents allowable under proposed § 31.3402(m)-1(b) in Step 3. The instructions to the 2020 Form W-4 clarify that employees may also claim other credits such as the education tax credit or the foreign tax credit in Step 3 of the 2020 Form W-4.

January 11, 2018, the Treasury Department and the IRS released Notice 1036, “Early Release Copies of the 2018 Percentage Method Tables for Income Tax Withholding,” which implemented TCJA’s tax rate changes, standard deduction, and suspension of the deduction under section 151. The Treasury Department and the IRS designed the 2018 withholding tables to work with the Forms W-4 that employees had already furnished their employers. On February 28, 2018, the Treasury Department and the IRS updated Form W-4, “Employee’s Withholding Allowance Certificate,” incorporating TCJA’s changes in the 2018 Form W-4’s worksheets and updated the online withholding calculator to reflect TCJA changes. Notice , I.R.B. 353, published February 12, 2018, allowed continued use of the 2017 Form W-4 temporarily in 2018 and included a relief provision stating that employees who experienced changes in their tax circumstances solely attributable to TCJA were not required to furnish a new Form W-4 to their employers in 2018. Notice also provided that, for 2018, the rules for withholding from periodic payments under section 3405(a) when no withholding allowance certificate has been furnished would parallel the rules for prior years and would be based on treating the payee as a married individual claiming three withholding allowances.

Finally, under proposed § 31.3402(m)-1, certain employees may take into account the credit for income tax withholding under chapter 24 and may take into account estimated tax payments paid provided they take into account nonwage income and follow the instructions to the Tax Withholding Estimator. As stated previously in this preamble, the IRS will continue to update the Tax Withholding Estimator.

The 2020 Form W-4 takes into account estimated tax deductions allowable under proposed § 31.3402(m)-1(c) in Step 4(b), which allows employees to claim deductions such as itemized deductions, student loan interest deductions, and deductible Individual Retirement Arrangement (IRA) contributions. Employees who wish to claim these and other deductions should complete the Deductions Worksheet on page 3 of Form W-4.

While you may ask your employees first paid wages before 2020 to submit new Forms W-4 using the redesigned version of the form, you should explain to them that they’re not required to do this and if they don’t submit a new Form W-4, withholding will continue based on a valid Form W-4 previously submitted. All newly hired employees first paid wages after 2019 must use the redesigned form. Similarly, any other employees who wish to adjust their withholding must use the redesigned form. A new employee who is first paid wages in 2020, including an employee who previously worked for you and was rehired in 2020, and who fails to furnish a Form W-4 will be treated as if they had checked the box for Single or Married filing separately in Step 1(c) and made no entries in Step 2, Step 3, or Step 4 of the 2020 Form W-4. However, an employee who was paid wages in 2019 and who failed to furnish a Form W-4 should continue to be treated as single and claiming zero allowances on a 2019 Form W-4.

Accordingly, Treasury and the IRS certify that this proposed rule will not have a significant economic impact on a substantial number of small entities pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6). Notwithstanding this certification, the Treasury Department and the IRS invite comments on any impact this rule would have on small entities. The Treasury Department and the IRS anticipate that this change of status rule will promote accuracy in withholding without imposing unnecessary burden in requiring new Forms W-4 for smaller changes in regular wages. After stakeholder feedback, Publication 15-T was revised and rereleased on August 13, 2019 and was rereleased on November 4, 2019. The income tax withholding tables reflecting 2020 cost-of-living adjustments were made available on November 28, 2019, for use with automated payroll systems.

Publication 15 ( , (Circular E), Employer’s Tax Guide

In the past, the value of a withholding allowance was tied to the amount of the personal exemption. Due to changes in the law, taxpayers can no longer claim personal exemptions or dependency exemptions; therefore, the 2020 Form W-4 no longer asks an employee to report the number of withholding allowances that they are claiming. In Step 1, employees enter personal information like their name and filing status. Employees who complete only Step 1 and Step 5 will have their withholding figured based on their filing status’s standard deduction and tax rates with no other adjustments. If applicable, in Step 2, employees increase their withholding to account for higher tax rates due to income from other jobs in their household.

Forms & Instructions

This rule was consistent with the format of Form W-4 for years prior to 2020 with respect to the line requesting an additional amount to be withheld from each payment of regular wages. In addition, these proposed regulations provide that an employee may request an additional amount, not otherwise required, to be withheld from the employee’s wages by selecting higher withholding rate tables.

Section 31.3402(m)-1(b)(i) of the current regulations does not allow an employee to take the credit for tax withheld on wages under section 31(a) into account in determining the employee’s additional withholding allowance or other reductions in withholding under section 3402(m). The Tax Withholding Estimator currently takes into account the amount of income tax withheld to date to estimate the amount of withholding required for the remaining payroll periods during the calendar year. The 2020 Form W-4 provides employees three options with respect to multiple Forms W-4.

This document sets forth proposed regulations that provide guidance for employers concerning the amount of Federal income tax to withhold from employee’s wages, implementing recent changes in the Internal Revenue Code made by the Tax Cuts and Jobs Act (TCJA), and reflecting the redesigned 2020 Form W-4 and related IRS publications. These proposed regulations affect employers that pay wages subject to Federal income tax withholding and employees who receive wages subject to Federal income tax withholding. Payments to employees for services in the employ of state and local government employers are generally subject to federal income tax withholding but not FUTA tax. Most elected and appointed public officials of state or local governments are employees under common law rules.

Publication 15-T was finalized and released on December 24, 2019. You’ll generally be liable for social security and Medicare taxes and withheld income tax if you don’t deduct and withhold these taxes because you treated an employee as a nonemployee.

Employees with two Forms W-4 in effect who select higher withholding rate tables on one Form W-4 without selecting higher withholding rate tables on the second Form W-4 have a significant risk of having less than the amount necessary to satisfy their tax liability withheld from their wages. continue to compute the amount of tax to be withheld from an employee’s wages based on a valid Form W-4 furnished by the employee regardless of when the employee furnished the Form W-4 on which such computation is based. The 2020 Publication 15-T provides guidance on how employers will withhold income tax, under the tables and computational procedures set forth therein, using Forms W-4 furnished and in effect on or before December 31, 2019.