Publication 5146 Employment Tax Returns - IRS Tax Forms
Publication 5146Employment Tax Returns:Examinations and Appeal RightsThe Internal Revenue Service (IRS) accepts most federal employment taxreturns as filed. However, some employment tax returns are examined todetermine if wages, tips, compensation, credits, and taxes are reported accurately.This publication discusses general rules and procedures that the IRS followswhen examining employment tax returns. It explains what happens before,during, and after an examination, as well as appeal procedures and specialprocedures dealing with tips and worker classification issues.The IRS must follow the tax rules that Congress sets in the Internal RevenueCode. We also follow Treasury Regulations, case law, and other rules andprocedures written to administer the tax laws. In this publication, sectionreferences are to the Internal Revenue Code unless otherwise noted.What’s Inside?The IRS MissionProvide America’s taxpayerstop-quality service by helpingthem understand and meet theirtax responsibilities and enforcethe tax law with integrity andfairness to all.An Overview of Employment Taxes.2How Does the IRS Select Returns to Examine? .2Once Your Return Is Selected for an Examination, What You Can Expect.3What Happens During the Examination?.5What the Results of the Examination May Be.7What Should You Do After You Receive the Examination Results.9If You Agree with the Results of the Examination.9If You Disagree with the Results of the Examination.10How Do You Appeal an IRS Decision.10How the Appeal System Works.10Special Procedures for Worker Classification Issues.12Section 530 of the Revenue Act of 1978 May Provide Relief.12You May Be Eligible for the Classification Settlement Program.12Section 3509 Provides Reduced Rates.12We May Send You a Notice of Determination of Worker Classification.12Tip Examinations.14What Should You Do When You Receive a Bill for Your Balance Due.15Trust Fund Recovery Penalty.15About Trust Fund Taxes.15Correcting Employment Tax Errors Not Covered in an Examination.16Future DevelopmentsFor the latest information about developments related to Publication 5146,Employment Tax Returns: Examinations and Appeal Rights, such aslegislation enacted after it was published, go to www.irs.gov/pub5146.1Publication 5146 (Rev. 3-2017) Catalog Number 66432Y Department of the Treasury Internal Revenue Service www.irs.gov
An Overview of EmploymentTaxesEmployment taxes include the amounts youmust withhold from your employees’ wagesor compensation for income, social security,Medicare, and Railroad Retirement Tax Act(RRTA) taxes. You must pay over theamounts withheld and pay the employershare of social security, Medicare, andRRTA taxes.In addition to withholding Medicare tax, youmust withhold a 0.9% Additional MedicareTax from wages or compensation you pay toan employee in excess of 200,000 in acalendar year. Additional Medicare Tax isonly imposed on the employee. There is noemployer share of Additional Medicare Tax.All wages and compensation that are subjectto Medicare tax are subject to AdditionalMedicare Tax withholding if paid in excess ofthe 200,000 withholding threshold. Allreferences to Medicare tax include AdditionalMedicare Tax unless otherwise noted.Federal unemployment taxes are alsoconsidered employment taxes. Onlyemployers pay federal unemployment taxes;they are not withheld from employees’ wagesor compensation.For purposes of this publication, the termemployment taxes also includes withheldincome tax reported on Form 945, AnnualReturn of Withheld Federal Income Tax.Employment tax returns include the followingreturns and any related Spanish-languagereturns or returns for U.S. possessions:n Form 940, Employer's Annual FederalUnemployment (FUTA) Tax Returnn Form 941, Employer's QUARTERLYFederal Tax Returnn How Does the IRS Select Returns toExamine?The IRS accepts most employment tax returns asfiled. However, we examine some returns todetermine if wages, tips, compensation, credits, andtaxes are reported accurately. Examinations are alsocalled audits.The process of selecting a return to examine usuallybegins in one of two ways:n We use computer programs to identify returns thatmay have incorrect amounts. The programs maybe based on information returns, on studies ofpast examinations, or on certain issues that otherspecial projects have identified.n We use information from compliance projectsthat suggests a return may have incorrectamounts. We may use information from varioussources including news media and public andinternal records. If we determine that theinformation from these sources is accurate andreliable, we may use it to select a return toexamine.If we select your return to examine, it does not meanthat you have made an error. Depending on theresults of the examination we may determine thatyou:n Owe additional tax,n Are entitled to a refund, orn Have no changes to your liability as reported.See the IRS video presentation,Your Guide to an IRS Audit, athttp://www.irsvideos.gov/audit/Form 943, Employer's Annual Federal TaxReturn for Agricultural Employeesn Form 944, Employer's ANNUAL FederalTax Returnn Form 945, Annual Return of WithheldFederal Income Taxn Form CT-1, Employer’s Annual RailroadRetirement Tax Return2Publication 5146, Employment Tax Returns: Examinations and Appeal Rights
Your Rights as a TaxpayerAs a taxpayer, you have the right to betreated fairly, professionally, promptly,and courteously by IRS employees.Publication 1, Your Rights as aTaxpayer, explains your rights whendealing with the IRS.Once Your Return Is Selected for anExamination, What You Can ExpectThe length of each examination varies depending onthe type of examination, the complexity of itemsbeing reviewed, the availability of information beingrequested, the availability of both parties forscheduling meetings, and your agreement ordisagreement with IRS findings.Some examinations are handled entirely by mail.Others are conducted in person. The IRS makes thefinal determination of when, where, and how theexamination will take place.How to Contact YourTaxpayer AdvocateThe Taxpayer Advocate Service(TAS) is an independent organizationwithin the IRS whose employeesassist taxpayers who experienceeconomic harm, who seek help inresolving tax problems that have notbeen resolved through normalchannels, or who believe that an IRSsystem or procedure is not working asit should.You can contact TAS by calling theTAS toll-free at 1-877-777-4778 orTTY/TDD 1-800-829-4059 to see ifyou are eligible for assistance.You can also call or write to your localtaxpayer advocate, whose phonenumber and address are listed in yourlocal telephone directory and inPublication 1546, TaxpayerAdvocate Service Your Voice atthe IRS. You can file Form 911,Request for Taxpayer AdvocateService Assistance (And Applicationfor Taxpayer Assistance Order), orask an IRS employee to complete iton your behalf.Examinations by MailWe conduct some examinations entirely by mail. Wesometimes call these correspondence or remoteexaminations. If we are going to conduct anexamination by mail, we will send you a letter askingfor more information about certain items on yourreturn.If you submit information, attach copies of yourdocuments to a copy of the letter and send them tothe address provided.DO NOT send us original documents.We will not return any documents you submit.Note:Put your business name, Employer IdentificationNumber (EIN), and the applicable tax periods oneach page that you send. This helps us ensurethat all pages are associated with your case.If we conduct the examination by mail, you canchoose to:n Act on your own behalf, orn Have someone represent you in correspondencewith us. This person must be an attorney,accountant, enrolled agent, or the person whoprepared the return and signed it as the paidpreparer. If someone represents you, you mustgive us written authorization using Form 2848,Power of Attorney and Declaration ofRepresentative.For more information, go to:http://www.irs.gov/advocateReminder! Be sure to respond by the deadline given inany letters from us.Publication 5146, Employment Tax Returns: Examinations and Appeal Rights3
Examinations in PersonIf we are going to conduct an examination in person,we will send you a letter or call you to tell you that wehave selected your return for an in-personexamination. We will tell you what information youmust provide. Having the information available whenrequested may allow us to complete the examinationmore easily and more quickly.If we plan to conduct the examination in person, wecan do so at your place of business, at an IRS office,or at the office of your attorney, accountant, orenrolled agent. The examiner will try to find a suitabletime and place with you.Recordings You may make an audio recording of theexamination interview. At least 10 daysbefore the interview, write to the examiner toask to record the interview. You must bringyour own recording equipment.The IRS can also record an interview. If weinitiate the recording, you must be notified 10days before the interview. You may get acopy of the recording at your expense.If we conduct the examination in person, you canchoose to:n Act on your own behalf. If you act on your ownbehalf, you may leave the session to consult withyour representative. In that case, we will suspendthe interview and reschedule the examination.However, we cannot suspend the interview if weare conducting it because you received anadministrative summons.n Have someone accompany you, either to supportyour position or to witness the session.n Accompany someone who will represent you. Thisperson must be an attorney, accountant, enrolledagent, or the person who prepared the return andsigned it as the paid preparer.n Have your representative act for you and not bepresent at the examination yourself. If someonerepresents you in your absence, you must giveus written authorization using Form 2848, Powerof Attorney and Declaration of Representative.4Do You Outsource Payroll andEmployment Tax Functions to a ThirdParty?If you outsource payroll and employment taxfunctions to a third party, generally you willremain liable for those taxes. Common thirdparty outsourcing arrangements include:n n n n Payroll Service Provider (PSP)Reporting AgentSection 3504 AgentProfessional Employer Organization(PEO)For more information about outsourcingpayroll and third party payers, go towww.irs.gov and enter “third party payers” inthe search box.If you outsource some or all of your payrollresponsibilities, you should consider thefollowing:n You remain responsible for thedeposit and payment of federal taxliabilities. Even though you may forwardthe tax amounts to the third party tomake deposits and payments, you arestill liable for the tax. Employers whoenroll in the Electronic Tax PaymentSystem (EFTPS) can view EFTPSdeposits and payments made on theirbehalf under the employer’s EIN. If thethird party fails to timely make thedeposits and payments, the IRS mayassess penalties and interest on youraccount. You are liable for all taxes,penalties, and interest due. You mayalso be held personally liable for certainunpaid federal taxes.n If your account has any issues, theIRS will send correspondence to youat your address of record. We stronglysuggest that you not change youraddress of record to that of the thirdparty because it may significantly limityour ability to be informed about taxmatters involving your business.Publication 5146, Employment Tax Returns: Examinations and Appeal Rights
What Happens During an Examination?We May Contact a Third Party About Your CaseThe Examiner Will Verify That You HaveComplied with Information ReportingRequirementsTo investigate your case, the law allows us to contactthird parties, such as neighbors, banks, employers,employees, or independent contractors. We will notifyyou before contacting other people about your taxmatters.An examiner will verify information reportingcompliance, as well as employment tax return filingcompliance, during the initial stages of anemployment tax examination. To ensure the timelyand correct filing of information returns, examinersare required to ascertain that the taxpayer filed allrequired information returns and furnished copies tothe payees from the period of the return underexamination to the most recent calendar year. Theexaminer will determine whether penalties for failureto file and failure to furnish apply.Two information returns that taxpayers are commonlyrequired to file are Form W-2, Wage and TaxStatement, and Form 1099-MISC, MiscellaneousIncome.Periodically we will give you a list of the third partieswe contacted. We can also provide this list uponrequest. These third party contact requirements donot apply:n When you authorized the contact,n If providing notice would jeopardize collection ofany tax liability,n If providing notice may result in reprisal againstany person, orn To any pending criminal investigation.We May Ask You to Extend the Period ofLimitation for AssessmentGenerally, you must report wages and compensationyou paid to employees on Form W-2. Whencorrecting an omission or error in a return, you arerequired to file Form W–2c, Corrected Wage and TaxStatement.The Internal Revenue Code requires the IRS toassess taxes within specific time limits. These limitsare known as periods of limitation. When they expire,we can no longer assess additional tax.See the General Instructions for Forms W-2 and W-3for more information.We try to examine tax returns as soon as possibleafter they are filed, but occasionally we may ask thattaxpayers extend the period of limitation forassessing employment taxes.You must file Form 1099-MISC to report payments of 600 or more to persons not treated as employees(for example, independent contractors) for servicesperformed for your trade or business. For moreinformation, see the General Instructions for CertainInformation Returns.Extending the period of limitation will give you moretime to provide documentation to support yourposition or to appeal if you do not agree with ourfindings. Extending the period also allows us to finishthe examination, make any additional assessment, ifnecessary, and provide sufficient time for processing.Generally, the period of limitation for assessment is 3years, measured from the date the return is filed.According to the rule governing early returns, weconsider a tax return that is filed before its due date(determined without regard to any extension of timefor filing) to be filed on the due date.Publication 5146, Employment Tax Returns: Examinations and Appeal Rights5
Here are some examples of specific employmentforms and their deadlines:n n n n 6Form 940, Employerʼs Annual FederalUnemployment (FUTA) Tax Return, is filed on acalendar year basis and is due January 31 of thenext calendar year. The rule governing earlyreturns applies. For any Form 940 filed beforeJanuary 31 of the next calendar year, the periodof limitation is measured from January 31 of thenext calendar year. If the return is filed on or afterJanuary 31 of the next calendar year, the periodis measured from the date the return is actuallyfiled.Form CT-1, Employerʼs Annual RailroadRetirement Tax Return, is filed on a calendaryear basis and is due the last day of February ofthe next calendar year. The rule governing earlyreturns applies. For any Form CT-1 filed beforeFebruary 28 (or February 29 in a leap year) of thenext calendar year, the period of limitation ismeasured from the last day of February of thenext calendar year. If the return is filed on or afterthe last day of February of the next calendaryear, the period is measured from the date thereturn is actually filed.A special rule applies to a return reporting socialsecurity and Medicare taxes or federal incometax withholding. Any Form 941, EmployerʼsQUARTERLY Federal Tax Return; Form 943,Employerʼs Annual Federal Tax Return forAgricultural Employees; Form 944, EmployerʼsANNUAL Federal Tax Return; or Form 945,Annual Return of Withheld Federal Income Tax,that is filed before April 15 of the next calendaryear is deemed filed on April 15 of the nextcalendar year. For example, if you filed your 2011fourth quarter Form 941 on January 27, 2012, theIRS treats the return as if it were filed on April 15,2012. Thus, the 3-year period of limitation forassessment ends on April 15, 2015. If the returnis filed on or after April 15 of the next calendaryear, we measure the period of limitation from thedate the return is actually filed.Filing an amended Form 940 or an X form (forexample, Form 941-X, Adjusted EmployerʼsQUARTERLY Federal Tax Return or Claim forRefund), does not affect the period of limitationfor assessment. For more information on Xforms, see Correcting Employment Tax ErrorsNot Covered in an Examination, later in thispublication.How to Extend the Period of Limitation forAssessmentA written agreement between you and the IRS toextend the period of limitation for assessment ofemployment taxes is made using Form SS-10,Consent to Extend the Time to Assess EmploymentTaxes. The Form SS-10 sets a specific expirationdate for the extension.If the period of limitation for assessment is about toend, we may ask you to sign Form SS-10. We willsend you Form SS-10 and Publication 1035,Extending the Tax Assessment Period.You may choose to do one of the following:n Agree to extend the period of limitation forassessment.n Agree to an extension restricted to particular issuesor for a particular period of time, or both. Anextension restricted to particular issues allowsthe period of limitation to expire for all items onthe return except those covered by the restrictedlanguage.n Refuse to extend the period of limitation forassessment.Fast Track Settlement Can Help ResolveDisputesDuring the examination process, if you and theexaminer cannot agree on one or more issues, youmay want to consider using Fast Track Settlement. Incertain cases, the IRS offers this process to helpresolve disputes that occur during examinations.Fast Track Settlement involves a trained mediatorfrom the Office of Appeals who is independent of theIRS office conducting the examination. The Process:n Is optional,n May expedite resolution of your case,n Requires no fee to use, andn Is available to most taxpayers and for mostissues, with certain exclusions.Publication 5146, Employment Tax Returns: Examinations and Appeal Rights
Issues should be fully developed before initiating thisprocess.You may ask to use this process, or we may makethe request. The process will only take place if bothyou and the IRS agree. Either party may withdraw atany time.Issues will only be resolved if both you and the IRSreach an agreement; you will not be required toaccept any resolution. If any issues remainunresolved, you will still have all of your traditionalappeal rights.For more information about the process, seePublication 5022, Fast Track Settlement - A Processfor Prompt Resolution of Small Business SelfEmployed Tax Issues.If your tax liability changes as a result of ourexamination, you may ask us to reconsider theresults. Some reasons we may reconsider your caseinclude:n You have more information to submit that couldchange the additional amount we havedetermined that you owe,n You filed an original delinquent return after wehave determined that you owe an additionalamount, orn You identified a math or processing error that wemade.If you want us to further review your case, you shouldfollow the instructions provided in our most recentletter to you.Fast Track SettlementFast Track Settlement may offer you a way to resolveissues during the examination process in 120 days orless. Fast Track Settlement allows the IRS toconsider the hazards of litigation.A specially trained Appeals employee facilitates thediscussion between you and the IRS manager toreach and execute a settlement with which you bothagree.To begin the Fast Track Settlement process, you andthe IRS will complete Form 14017, Application forFast Track Settlement.For more information, see Publication 4539, FastTrack Settlement BrochureWhat the Results of the Examination MayBeIf we accept your return as filed, we will send you aletter stating that the examiner proposed no changesto your return. Keep this letter with your tax records.If we do not accept your return as filed, we willexplain any proposed changes to you and yourauthorized representative. It is important that youunderstand the reasons for any proposed changes.Ask us about anything that is unclear.Procedures for Requesting Relief from PayingIncome Tax Withholding and AdditionalMedicare TaxUnder sections 3402(d) and 3102(f)(3), you may beentitled to relief from paying income tax andAdditional Medicare Tax that was not withheld if youcan show that the employees or payees havereported the income and paid the tax. However, youare still liable for any penalties or interest thatapplies.Use Form 4670, Request for Relief of Payment ofCertain Withholding Taxes, and Form 4669,Statement of Payments Received, to request relieffrom paying income tax or Additional Medicare Tax.Talk to the examiner about how to submit theseforms.Interest, Interest-Free Adjustments ofEmployment Taxes, and How to Stop Interestfrom AccruingIf you underpay your employment tax, interest will beassessed as provided by law. Interest generallyaccrues from the due date of the original return to thedate the tax was paid. Interest on any penalties willaccrue from the return due date, extended return duedate, or assessment date, whichever applies.Publication 5146, Employment Tax Returns: Examinations and Appeal Rights7
However, you may qualify for an interest-freeadjustment. You must report the additional amount oftax due on an adjusted return to qualify. Adjustedreturns include:n n agreement forms used in the context of anexamination or appeals process such as Form2504, Agreement to Assessment and Collectionof Additional Tax and Acceptance ofOverassessment (Excise or Employment Tax), orX forms such as Form 941-X, AdjustedEmployerʼs QUARTERLY Federal Tax Return orClaim for Refund. See Correcting EmploymentTax Errors Not Covered in an Examination, laterin this publication.If you qualify and:n n you pay the full amount due by the time youeither sign the agreement or file the X form, nointerest will be assessed.you pay less than the full amount, interest willaccrue on the balance due from the date yousubmitted the adjusted return until you make yourpayment.Note:The interest-free adjustment rules do not applyto FUTA adjustments that are reportable onForm 940, Employerʼs Annual FederalUnemployment Tax Return.If your examination includes worker classificationissues and you have not yet received a Notice ofDetermination of Worker Classification, you canmake a deposit with the IRS to stop any interest fromaccruing and still preserve your right to go to Tax8Court. See Special Procedures for WorkerClassification Issues later in this publication.You will not be eligible for an interest-free adjustmentif:n The underreported amounts relate to an issuethat was raised in an examination of a prior returnperiod,n You knowingly underreported your employmenttax liability,n You received a Notice of Determination ofWorker Classification, orn You received a Notice and Demand for Paymentbased on an assessment of tax. (This notice isnot the same as the Section 3121(q) Notice andDemand referred to in Tip Examinations later inthis publication.)If you do not qualify for an interest-free adjustmentand you think you will owe additional tax at the end ofthe examination, you can stop interest from accruingby paying all or part of the amount you think you willowe. Interest will stop accruing on the part you paywhen the IRS receives your payment. Interest will becharged only on the tax, penalties, and interest thatremain unpaid.For more information about interest-free adjustments,see Rev. Rul. 2009-39, 2009-52 C.B. 951 at 951, atwww.irs.gov/irb/2009-52 IRB/ar14.html, and theInstructions for Form 941-X, Instructions for Form943-X, Instructions for Form 944-X, Instructions forForm 945-X, and Instructions for Form CT-1 X. Alsosee section 13 of Publication 15 (Circular E),Employerʼs Tax Guide.Publication 5146, Employment Tax Returns: Examinations and Appeal Rights
Notify IRS If Your Address or Responsible Party Has ChangedIf your address has changed, notify the IRS to ensure that you receive any correspondence.To change your address with the IRS, you may complete a Form 8822, Change of Address, or aForm 8822-B, Change of Address or Responsible Party — Business.For more information, see Rev. Proc. 2010-16, available at www.irs.gov/pub/irs-drop/rp-10-16.pdf.Make sure to tell the examiner or Appeals Officer that your address or responsible party has changed.Any entity with an EIN must file Form 8822-B, to report the latest change to its responsible party within 60days of the change.A responsible party is the individual or entity that controls, manages, or directs the disposition of funds andassets of the entity with the EIN.The purpose of this requirement is for the IRS to have updated information about who owns and controls an entitywith an EIN. This will ensure that the IRS knows who to contact when there is a tax problem and does not contactresponsible parties that are no longer affiliated with the entity.What Should You Do After You Receivethe Examination Results?If You Agree with the Results of theExaminationIf you agree with the results of the examination, youshould:n Sign the agreement form that the examinerprepared, andn Pay any amount you owe.The agreement form gives us permission to assessthe proposed amounts quickly. Signing theagreement form will not prevent you from filing aclaim for refund if you later believe that you areentitled to a refund. It will not prevent us from laterdetermining, if necessary, that you owe additionaltax. It will also not extend the time provided by law foreither action.Note:If you are entitled to a refund, you will receive itsooner if you sign the agreement form at theend of the examination.Sign the Agreement FormAgreement forms include:n Form 2504, Agreement to Assessment andCollection of Additional Tax and Acceptance ofOverassessment (Excise or Employment Tax);n Form 2504-WC, Agreement to Assessment andCollection of Additional Tax and Acceptance ofOverassessment in Worker Classification Cases(Employment Tax); andn Form 2504-S, Agreement to Assessment andCollection of Additional Tax and Acceptance ofOverassessment (including section 530Statement).Pay Any Amount You Owe by the Time YouSubmit the Agreement FormBy signing the agreement form, you may qualify foran interest-free adjustment. If you qualify, theadjustment will be interest-free if you pay the fullamount due by the time you submit the signedagreement form.If you do not pay the full amount by the time yousubmit the signed agreement form, we will send youa bill. Interest will generally accrue on the balancedue from the date you submit the signed agreementform until the date you pay. (See Interest, Interestfree Adjustments and How to Stop Interest fromAccruing earlier in this publication.)Publication 5146, Employment Tax Returns: Examinations and Appeal Rights9
If you do not qualify for an interest-free adjustment,pay the amount you owe, including any interest andpenalties. If you do not pay the entire amount, we willsend you a bill.If you cannot pay the full amount due, you should payas much as you can as soon as you can to limit theamount of interest that accrues.For more information about payment options, seePublication 594, The IRS Collection Process.If You Disagree with the Results of theExaminationIf you disagree with the results of the examination,the examiner will explain your appeal rights. You maythen ask for a meeting or a call with the examiner’smanager to explain your position. If an agreement isreached, sign the agreement form and pay anyamount due.If you cannot reach an agreement with the managerat this meeting, the examiner will prepare anexamination report explaining your position and ours.Within a few weeks after the examination ends, wewill send you a package.We will send you these documentsA letter (called the30-day letter)To tell you of your right to appealthe proposed changes within 30days. Examples of 30-day letters:n Letter 950-C for unagreedemployment tax casesinvolving worker classificationissuesn Letter 950-D for unagreedemployment tax casesinvolving issues other thanworker classificationA copy of theexamination reportTo explain the examiner’sproposed changes to your taxliabilityAn agreement formTo sign and return if you nowagree with the adjustments10Publication 5, YourAppeal Rights andHow to Prepare aProtest If You DonʼtAgreeTo reviewHow Do You Appeal an IRS Decision?How the Appeal System WorksBecause taxpayers sometimes disagree with the IRSon tax matters, the IRS has an appeal system. Youmay appeal our tax decision to a local Appeals office.Local Appeals offices are independent of the IRSoffice that proposed the adjustment.An Appeals office is the only level of appeal withinthe IRS. Most differences are settled at the appealslev
The Internal Revenue Service (IRS) accepts most federal employment tax returns as filed. However, some employment tax returns are examined to determine if wages, tips, compensation, credits, and taxes are reported accurately. This publication discusses general rules and procedures that the IRS follows when examining employment tax returns.
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