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#1 |
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Pro
Trade: contractor
Join Date: May 2006
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How To Pay Piece Meal And Sleep At Night
With work booked as of now ... and expected work to come in ... not to mention the "spring rush" and "summer slam"
I stand a 75% chance at eventually having to hire an employee this year. Maybe soon. I want to pay someone as a sub (which I call piece meal - evidently there's more in-depth definition?), 1099 work - whatever either way ... they're paid by the job/per task they're like an employee, only paid by sub I kinda want my cake and eat it too ... I can give them the freedom of a sub ... however, if they don't want to show up ... well, i won't give em work. I've worked for other builders who did this with me. Thing is ... it crosses into a grey area. If I can do it and still stay in the black and white ... I'm up for it Getting into the grey (and the IRS) ... well, I won't sleep so well at nights. And at that point, the cons outweigh the pros. Advice |
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#2 |
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Member
Trade: Landscaping
Join Date: Feb 2007
Posts: 52
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Re: How To Pay Piece Meal And Sleep At Night
I would talk to a CPA and see what he says or advises. As I remember, you can't have much control over them as far as setting regular work hours, providing company vehicle, benefits, ect. Maybe hire someone through a temp agency. They handle all the paperwork as the person actually works for them. You just kinda sub them out and when you don't need them tell the temp agency you don't need them anymore. Don't know if you will find anyone in your line of work going through a temp agency work though. If you just need grunt work you might find someone.
CB |
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#3 |
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Pro
Trade: Consultant
Join Date: May 2005
Location: Holly Springs, GA
Posts: 1,221
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Re: How To Pay Piece Meal And Sleep At Night
There's a whole list of items that the IRS uses to determine whether someone is an "employee" or a "sub"- you should download that list and check them for yourself.
Basically, if you're telling him when to show up, how to dress, how to do the job, etc (the things you do to an employee), he's not a "sub". You also can't provide him with more than a certain percentage of his work for the year, so unless this is a part-time gig for your guy, he's an "employee". So, if you want the benefits of an employee, and want to sleep at night, just do the right thing and hire the guy as a full-fledged employee. It's likely not going to cost you any more anyway, because if the guy has 1/2 a brain he'll charge you more as a "sub" than he would as an employee because he'll need to cover his tax liability, insurance, etc. If he's not bright enough to realize all that is going to cost him money, do you really want him as an employee anyway??? Bob |
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#4 |
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Business Operations
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Re: How To Pay Piece Meal And Sleep At Night
Dirt here's a rule of thumb to consider...
When you want to "buy" a finished portion of the project- he's a sub When you need help to complete a project- he's an employee Like Bob said, the IRS website has an entire area showing the difference. If you want to be legal, you can not have any control over the sub beyond setting the scope of work he's expected to perform. He sets the price, the hours he will work, the time to completion, the materials used and how he will get it done. It's up to you then to decide if he's offering something you want to pay for. Other than additional paperwork, a sub doesn't save you that much money in the long run IF he's a legitimate sub who provides his own insurance. If he doesn't, you have to pay for it under your policies. You have to provide your insurance company with proof of all sub's insurance or else it's billed to you. In your case, I'd strongly suggest hiring one helper for now. In the pool business, any subcontractor would likely be competition since there aren't many who specialize in just installing one specific part of a pool.
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#5 |
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Pro
Trade: contractor
Join Date: May 2006
Location: east
Posts: 3,309
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Re: How To Pay Piece Meal And Sleep At Night
well ... I guess there's the black and white way ... and there's the grey way.
I plan on living a while, lol ... I like money, but there's a certain point where (we all) reach a "comfort" level. I'd rather do everything the right way, and come out smellin like a rose. or at least a guy with long lasting deoderant. I definitely do not want some hourly slack. For what I do, I could do very well with a right hand man and a strong pool of subs. I've got the subs --- just need the right hand man someone suggested hiring temp/labor agency guys. Believe it or not ... I've got a VERY GOOD local temp agency. These guys are great. I've had maybe ONE problematic worker come from them. And honestly, I think that one problematic guy was just a little overworked and needed a break. thing is, even my "in-house" tasks are pretty specialized. So specialized that there are not subcontractors to even fill those "slots." Not rocket science stuff --- hard to explain though. Heck, some days I just need someone to go clean the truck, organize the storage shed, pick up materials (that can't be delivered for whatever reason), drop by someone's place for punchout/service/warranty work, etc. |
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#6 |
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Pro
Trade: Roofing Contractor
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Location: NW Suburbs of Chicago
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Re: How To Pay Piece Meal And Sleep At Night
The test for common law employment
Employee or independent contractor The list that follows gives 20 factors or "tests" used by the IRS when determining whether a person is an employee or an independent contractor. The question of "who controls the details?" appears to be the primary basis on which the determination is made. No single factor or small group of factors can be taken as conclusive evidence of the presence or absence of control. To determine a workers' status, all the factors must be evaluated. The weight given to the individual factors is not equal, and some factors may not apply to certain occupations. No one factor is sufficient to determine status without consideration of the others. Although many of these factors are open to interpretation as they are written, the language used here is taken exactly from IRS documents. (IRS Publication 937, Employment Taxes and Information Returns, p. 4.) Because final determination is made on a case-by-case basis, often in a court of law, it is very difficult to know in advance how a ruling would be made on any specific employer/contractor. Following these factors is an examination of the four service provider categories: 1) employees 2) independent contractors 3) statutory non-employees 4) statutory employees.
After analyzing a number of court cases, Sumutka concluded that eight of the factors are primary and can provide "very persuasive evidence of employee status" (p. 48). What is important is whether the service provider or the service recipient has the right to control the details of the work to be performed. Evidence of employee status is provided if the service recipient has the right to:
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#7 |
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Pro
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Join Date: Dec 2006
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Re: How To Pay Piece Meal And Sleep At Night
Here is the link to the entire text of the article including workbooks and which criteria are weighed more heavily as the deciding factor.
http://muextension.missouri.edu/expl...ubs/ncr546.htm Ed |
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#8 |
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Pro
Trade: Roofing Contractor
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Re: How To Pay Piece Meal And Sleep At Night
Worksheet 1, Factor evaluation questionnaire, gives the primary and secondary factors sorted and reworded according to Sumutka's determination of impact.
Worksheet 1. Factor evaluation questionnaire Primary factors:YesNo1. Does the service recipient have the right to require compliance with significant instructions? 2. Does the service recipient have the right to set the hours of work? 3. Does the service recipient have the right to set the order or sequence of services to be performed? 4. Does the service recipient have the right to discharge the service provider? 5. Does the service recipient have the right to hire, pay, and supervise assistants as the nature of the work requires? 6. Does the service provider have no ability to realize a profit or loss? 7. Does the service provider have no investment in significant tools, materials, and other equipment when such items are necessary to accomplish the task and are customarily provided by the service provider? 8. Does the service provider have no significant investment in facilities when they are necessary to accomplish the task and they are customarily provided? Secondary factors: YesNo9. Does the service recipient train the service provider? 10. Does the service recipient have the right to require oral or written reports? 11. Does the service recipient pay by the hour, week or month? 12. Does the service recipient pay for business and/or travel expenses? 13. Does the service recipient have the right to require personal service? 14. Does the service provider usually not work for more than one firm at a time? 15. Does the service provider maintain a continuing relationship with the service recipient? 16. Does the service provider maintain a continuing relationship with the service recipient? 17. Does the service provider devote substantially full time to the service recipient? 18. Does the service provider have the right to terminate the relationship at any time without incurring liability? 19. Is the service provider integrated into the service recipient's business? 20. Does the service provider not make his or her services available to the public on a regular and consistent basis? Notes
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#9 |
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Pro
Trade: Roofing Contractor
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Re: How To Pay Piece Meal And Sleep At Night
Service provider categories
1. Employees (officially referred to as Common Law Employees) Under common law rules, every individual who performs services subject to the will and control of an employer, as to both what must be done and how it must be done, is an employee. It does not matter that the employer allows the employee discretion and freedom of action, so long as the employer has the legal right to control both the methods and the result of the services. Two usual characteristics of an employer/employee relationship are that the employer has the right to discharge the employee and the employer supplies tools and a place to work. If you have an employer/employee relationship, it makes no difference how it is described. It does not matter if the employee is called an employee, partner, co-adventurer, agent or independent contractor. It does not matter how the payments are measured, how they are made, or what they are called. Nor does it matter whether the individual is employed full-time or part-time. For employment tax purposes, no distinction is made between classes of employees. Superintendents, managers and other supervisory personnel are all employees. An officer of a corporation is generally an employee, but a director is not. An officer who performs no services or performs only minor services, and neither receives nor is entitled to receive any pay, is not considered an employee. For example, any worker who comes to your apparel manufacturing plant at the times you specify, signs in when he arrives, works at the station you assign, takes a lunch break at a time that you designate, and leaves at a prearranged time, is an employee. Similarly, a person who comes to your place of business, picks up garment pieces and instructions on how to put them together, takes them home to sew, brings them back by a specified time, and is paid only for the acceptable finished products, is either an employee or a statutory employee (see employment category 4 below). 2. Independent contractors (sometimes referred to as Consultants) People such as lawyers, contractors, subcontractors, public stenographers, auctioneers, and others who follow an independent trade, business or profession in which they offer their services to the general public, are generally not employees. However, whether such people are employees or independent contractors depends on the facts in each case. The general rule is that an individual is an independent contractor if the employer has the right to control or direct only the result of the work and not the means and methods of accomplishing that result. Independent contractors are hired to accomplish a particular job. The relationship between the hiring party and the independent contractor is contractual. There is a written, verbal or implied contract between the two parties about what will be done and how much that service is worth. The contractor does the job, is paid and moves on to the next job under the next contract. Independent contractors must give you a correct identification number (an employer identification number or a social security number). If they do not, you may have to withhold, as income tax, 20 percent of the amount you pay the independent contractor. For example, plumbers are usually independent contractors. They are in business for themselves. When a house is being built, the builder specifies the type of plumbing to be installed and the parties agree upon a price. The plumber does the work and submits a bill, which must be paid if the work is up to standard. If the work is not up to standard, the plumber must do it over without additional compensation. If the plumber does not complete the work or the work is inadequate, the builder may sue the plumber for damages. The builder cannot, however, direct the step-by-step or day-to-day progress of the job or decide which days and hours the plumber will work. The builder cannot hire additional people to help the plumber or insist that the plumber do the actual work. The builder cannot fire the plumber in mid-job. The plumber cannot decide one day that he doesn't want to do this job and simply quit. Both are bound by a contract that says the work must be done and the plumber must be paid. The builder does not have to hire that plumber ever again, even if the work was perfectly adequate. If the builder does want to hire the plumber again, they negotiate a new contract for the new job. At the end of the year, the builder files a Form 1099 with the Internal Revenue Service. This form tells the IRS how much the builder paid the plumber during that year for work that was done. Meanwhile, the plumber must file quarterly estimated income reports with the IRS and an end-of-the-year tax return. The plumber must pay self-employment tax on the amount of income earned. The IRS may compare the amount reported by the builder with the amount reported by the plumber. A person who makes or trims garments in a home-based business and brings them to your consignment store to sell is an independent contractor. You do not tell that manufacturer what to make or how many or when. You do not determine who will do the actual work. You do not set the selling price or take the risk of loss if the items do not sell. You may contract with the maker so that you both agree about how long the items will remain in your consignment store, what percentage will go to you (the seller), and whether you may mark down the items if they do not sell by a designated time. 3. Statutory employees Statutory employees are similar to independent contractors, except that they are subject to FICA. The employer must withhold Social Security Tax on these workers and pay the employer's share, but does not withhold federal or state income tax. The employer is not responsible for unemployment taxes, nor does he/she provide benefits to a statutory employee. The statutory employee is responsible for filing quarterly estimated income reports and for paying taxes on income. Workers in the following four categories may be statutory employees: (IRS Publication 937, Employment Taxes and Information Returns.)
According to IRS publication 937, "Individuals within any of the above four (statutory employee) categories are employees subject to social security and Medicare taxes if:" (IRS Publication 937, Employment Taxes and Information Returns.)
The IRS has provided four factors (Internal Revenue Manual, Part IV — Audit and Investigation, Exhibit 4640-2 (May 6, 1986). Cited in Wright, Kenneth K., "Determining Employee Status." 1991. Unpublished manuscript.) to help determine whether the investment is substantial enough to disqualify the worker from the category of statutory employee:
The IRS has also ruled that tools and equipment are not considered a substantial investment "if they may be used for purposes not related to the particular services being performed" on the job. (Wright Kenneth K., "Determining Employee Status." 1991. Unpublished manuscript.) Therefore a typewriter furnished by a contract typist and a sewing machine furnished by a "merchant tailor" are not considered substantial investments in facilities.
4. Statutory non-employees Workers in two categories are defined as statutory non-employees: Direct sellers and licensed real estate agents. The IRS defines direct sellers as follows: (IRS Publication 911, Tax Information for Direct Sellers. 1992.) Direct sellers sell consumer products to others on a person-to-person basis, usually working out of their own homes. The products they sell are intended only for personal use, not for resale. They may sell door-to-door, through the sales party plan, or by appointment in someone else's home. Their customers may be coworkers, friends, relatives or neighbors. They may sell on a regular basis or only occasionally. They may sell as full-time work or as a sideline to a regular job. A direct seller usually signs up with a particular company to sell its product line. The company may use one of many titles for its direct sellers, including: consultant, coordinator, dealer, demonstrator, designer, director, distributor and direct distributor, instructor, manager or supervisor, representative or sales representative. Direct sellers are treated as self-employed for federal income tax and employment tax purposes if they meet the following two criteria: (IRS Publication 937, Employment Taxes and Information Returns.)
You must file quarterly estimated income reports and pay estimated tax (IRS Form 1040-ES); and annual income tax (IRS Form 1040, Schedule C). Self-employment tax is the social security and Medicare tax for those who work for themselves. If you have employees, you will probably be required to pay employment taxes. These taxes include federal income tax, social security and medicare (FICA) taxes, and federal unemployment tax (FUTA). For more information about these taxes, see IRS Publication 911 on Tax Information for Direct Sellers, IRS Publication 533 on self-employment tax, and IRS Publications 937 and 15 on employment taxes. Industrial homeworkers Many people use the term "homeworker" to describe where they do their work. They may actually fall under any of the four categories of service providers described above. However, the IRS defines homeworker or Industrial Homeworker as "any employee employed or suffered or permitted to perform industrial homework for an employer." Therefore, for tax purposes, the term homeworker applies only to people who work at home for someone else. The Fair Labor Standards Act of 1938, as amended, places many restrictions on the type of work that may be done as homework, who may be hired as a homeworker, and requires strict record keeping, including certification, by both the homeworker and the employer. For more information about restrictions on industrial homeworkers, see IRS Publication 1026. By definition, industrial homeworkers are automatically either 1) employees or 2) statutory employees (see definitions above). For both employees and statutory employees, the employer hires an individual and assumes that they personally will be doing the work. However, if two or more individuals form a partnership, and that partnership is hired to perform a service or make a product, the partners are independent contractors because there can be no presumption that the work will be done solely by one or another member of the partnership. It is important, however, that the partners do work together as a business. It is not sufficient to say that several people are partners if they contract separately, and work individually. Reclassification protection The hiring company faces severe penalties if the IRS and/or the courts determine that service providers being treated as independent contractors should be reclassified as employees. However, a part of the tax law called the "safe haven" provision of Section 520 of the Revenue Act of 1978 provides some protection against liability for employment taxes, penalties and interest. To qualify for this protection, three conditions must be met:
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#10 |
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Pro
Trade: Roofing Contractor
Join Date: Dec 2006
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Re: How To Pay Piece Meal And Sleep At Night
Final determination
Whether these provisions are met will be determined, of course, by the IRS and/or the courts, which means that no individual company is guaranteed safe even if it appears that they have satisfied the requirements. Further explanations of the three provisions follow. 1. Reasonable basis for classification Tax law (Section 530 (2)) Section 530 (2) provides several standards that constitute safe havens in determining reasonable basis. These are: (Oden, Debra Hall. "Independent Contractor: A Legitimate Classification with Reclassification Protection." Taxes. May 1991. pp. 319-325.)
Tax law (Section 530 (a)(1)(A).) requires that the employer not treat the service provider as an employee for any time period after December 31, 1977. If, while the company is under investigation, it anticipates a negative ruling from the IRS and withholds employment taxes or files current employment tax returns, by doing so it has treated the Service Provider as an employee and has violated this "consistent treatment" requirement. In addition, "If all substantially similar workers are treated as independent contractors, then all the workers are covered under the safe-haven protection. If, however, some workers holding substantially similar positions are treated as employees, then none of the workers is covered under the safe-haven provisions." (Oden, Debra Hall. "Independent Contractor: A Legitimate Classification with Reclassification Protection." Taxes. May 1991. pp. 319-325.) 3. Return filing requirement The third requirement for safe haven protection is that the taxpayer must have filed all required federal tax returns and that the employee status used on those returns must have been independent contractor. If the worker has failed to file self-employment tax returns, that failure may disqualify the company from protection under these safe haven provisions of the federal tax law. In addition, the employer must have filed Form 1099-Misc. to report fees, commissions or other payments made to independent contractors who are either sole proprietors or partnerships, on payment totalling $600 or more in a calendar year. If the employer has filed a W-2, Wage and Tax Statement for any individual, then that individual has been treated as an employee and the employer would not be able to rely on the safe haven provisions of this section. Summary The courts and the IRS have held that "what you call it" does not affect what it really is. Giving a worker the title "independent contractor" makes no difference in the ruling if the worker is in a situation that fits the definition of employee or statutory employee. The same is true for written contracts. If the worker appears to be dependent upon the company, a contract stating that he or she is an independent contractor will not deter the IRS from ruling that that worker is really an employee. It is important that each service recipient and service provider study the guidelines carefully and/or consult a qualified accountant or tax attorney before deciding that the independent contractor classification is appropriate for your use. The IRS suggests that service recipients and service providers use Form SS-8: Determination of Employee Work Status for Purposes of Federal Employment Taxes and Income Tax Withholding (included in this publication). You may wish to complete this form for your own purposes and/or you may wish to submit it to the IRS for an official ruling. Note that it is not anonymous and becomes a part of IRS records. Precautions and other considerations For service recipients Several suggestions have been offered by various tax accountants and certified public accountants for steps companies can take to strengthen their claims that service providers are independent contractors. These suggestions are not guaranteed to protect you against an IRS claim that the worker is actually an employee. The suggestions that follow were adapted from an article by Roth and Biebl. (Roth, Randall W. and Biebl, Andrew R. "How to Avoid Getting Caught in the IRS Crackdown." Journal of Accountancy. May 1991. pp. 35-36, 39.) |
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#11 |
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Celtic's #1 Fan
Trade: electrical
Join Date: Aug 2006
Posts: 2,581
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Re: How To Pay Piece Meal And Sleep At Night
the link would have worked fine
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#12 |
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Pro
Trade: contractor
Join Date: May 2006
Location: east
Posts: 3,309
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Re: How To Pay Piece Meal And Sleep At Night
Good God Ed!!!
Please DO NOT send me an invoice for all of that
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#13 |
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Pro
Trade: Roofing Contractor
Join Date: Dec 2006
Location: NW Suburbs of Chicago
Posts: 7,135
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Re: How To Pay Piece Meal And Sleep At Night
It didn't seem quite as long when I was pasting it.
The reason I did though, is because I have seen many members not follow the links posted at times and continue to pursue the same questions, and this was very relevant information. Enough said, it was way too long. Ed |
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#14 |
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Class A Contractor "BLD"
Trade: Remodeling and home improvements
Join Date: Feb 2006
Location: Virginia Beach, Va.
Posts: 1,286
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Re: How To Pay Piece Meal And Sleep At Night
Dirt,
It sounds like you will want a statutory employee.....according to the novel posted by Ed.
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Looks like some pros were here. |
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#15 |
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Pro
Trade: contractor
Join Date: May 2006
Location: east
Posts: 3,309
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Re: How To Pay Piece Meal And Sleep At Night
doesn't matter ... my employee would be retiring by the time i got done reading that
ed, just knockin on you - that was funny (and I've written longer statements) - thanks for the info!!! |
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#16 |
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Class A Contractor "BLD"
Trade: Remodeling and home improvements
Join Date: Feb 2006
Location: Virginia Beach, Va.
Posts: 1,286
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Re: How To Pay Piece Meal And Sleep At Night
That is good info, Ed. Thanks for researching it.
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Looks like some pros were here. |
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#17 |
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Thom
Trade: General Contractor/Homebuilder
Join Date: Nov 2006
Location: Albuquerque NM
Posts: 3,197
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Re: How To Pay Piece Meal And Sleep At Night
One more thing,
If your state requires a license, anyone you put on a 1099 must be properly licensed. |
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#18 |
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Chief Toilet Mover
Trade: Bathroom Remodeling
Join Date: Apr 2004
Location: Littleton, Colorado
Posts: 14,078
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Re: How To Pay Piece Meal And Sleep At Night |
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#19 |
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Insert title
Trade: Doors-Windows-Decks
Join Date: Apr 2006
Location: MA&RI
Posts: 4,677
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Re: How To Pay Piece Meal And Sleep At Night
Dirt, I pay 99% of my subs a by the piece price. Here is the job, this is what it pays, so you want it and can you complete it within 10-14 days. They can take the job or decline it. As far as the IRS goes, you can fill out a form and send it to them and they can decide if you are describing a sub or employee. I spent a ton of time on this issue last year, for some reason most of the impute I got here was wrong. "My friends brother in laws sister uncles dentist said" type of stuff.
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#20 |
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Pro
Trade: Swimming Pool Contractor
Join Date: Oct 2006
Posts: 2,165
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Re: How To Pay Piece Meal And Sleep At Night
dirt
if your on the fence about hiring a man, go to a temp agency they take care or taxes insurance comp etc. its is a straight labor expense for you. be warned they are usually degenarates & you must stay on site w/ them. though ive had some good in the past. but when you just need extra hands & feet it works out |
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