Monday, July 15, 2013

Business Payroll is No Place to Pay a Nanny

This article comes from our friends at Breedlove and Associates . . .

Business Payroll is no Place to Pay a Nanny
by Breedlove July 10, 2013

We often speak to families who think that adding a household employee to their business payroll provides an easy, one-stop solution. However, doing this is illegal in almost all instances and there are several snags that can come up when household and business payroll are not maintained separately. The following case illustrates one of them.

The Mistake
A family in Colorado hired their first nanny to care for their two children. The family owned a small business with 10 employees and had been told it would be okay to add the nanny to their company’s payroll. They wanted to “make things easy” as well as provide the nanny with access to their company’s healthcare plan. The placement agency the family worked with thought this seemed out of place and advised the family to call Breedlove & Associates for a second opinion. Unfortunately, the family never called and set their nanny up as an employee of their business.

The Law
Business owners are allowed to take a business tax break on their company’s payroll expense because the employees are direct contributors to the success of the business. The IRS has ruled that household employees are not direct contributors to a business and, therefore, their wages – as well as the accompanying care-related tax breaks – must be handled through the personal tax process. In addition, household employees cannot be filed with a business’ employment tax returns (unless it is a sole proprietorship or for-profit farm).

Furthermore, company group health insurance policies may not include non-employees. If a household employee is interested in health insurance, the nanny must obtain an individual policy. However, just like a commercial employer, a household employer can contribute up to 100% of the employee’s health insurance premiums and have it be considered non-taxable compensation. This means that neither the family nor the nanny would pay any taxes on that portion of her compensation. As an added bonus, as long as the family covers at least 50% of their household employee’s health insurance premiums and their nanny makes less than $50,000 a year, they can take a tax credit of up to 35% of their total yearly contribution.

The Mess
Approximately six months into the relationship, the nanny broke her ankle while skiing one weekend. She required surgery and an overnight hospital stay which resulted in around $20,000 in medical expenses.  The insurance company ultimately discovered she was a nanny and refused payment on the grounds that she was not an employee of the company and, therefore, not covered by the group health plan. The nanny was distraught with the thought of having to cover these medical bills and contacted the family.

Having remembered the conversation they had with their placement agency, the family contacted Breedlove & Associates to try to find a solution. A consultant informed them that their nanny needed to have an individual health insurance policy in order to be covered for the majority of her medical expenses. Additionally, the family needed to establish themselves as household employer with the IRS and Colorado state tax agencies to accurately report their nanny’s wages and take the correct tax deductions.

The Outcome
The family felt horrible that their payroll mistake caused their nanny so much stress. Because they were so happy with the work she was performing and because it was their mistake, they paid their nanny’s medical expenses. The family also had to pay their CPA to amend their business tax returns for the previous two quarters in order to reverse their illegal payroll deductions.

Because their CPA was not familiar with household employment taxes, the family signed up with Breedlove & Associates to process their nanny’s payroll going forward. We filed two quarters of late Colorado state income and state unemployment tax returns to catch the family up on their tax obligations. The family had to pay interest on their late tax payments, but we were able to get the state penalties waived for them once we explained why the tax returns were late.

The family continues to employ the nanny and even pays for 75% of her health insurance premiums.

How the Whole Thing Could Have Been Avoided
Had the family taken their placement agency’s warning about adding the nanny to their business payroll, they would have avoided this extremely expensive experience.  As the husband said to the Breedlove & Associates consultant who helped him, “My gut told me to call you months ago, but I convinced myself that it was not a big deal. I wish I had it to do over again!” Many well-intended families have made this mistake based on advice they received from a trusted source. This case serves as a reminder that tax and employment law for households is unique and outside of the core competencies of most tax professionals.

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