The classification decision — W-2 employee or 1099 independent contractor — is one of the highest-stakes payroll decisions a business owner makes. Get it wrong and you face retroactive FICA taxes, federal and state penalties, back unemployment contributions, and potential criminal liability for willful misclassification.
FJ & Associates, PLLC helps Utah businesses make classification decisions correctly — and represent clients in audits when prior misclassification is discovered.
📞 (801) 927-1337 | Schedule a consultation →
The Three-Part IRS Test
The IRS evaluates three categories of evidence to determine whether a worker is an employee or independent contractor:
1. Behavioral Control
Does the business control or have the right to control how the worker performs the work?
- Employee indicators: Business sets the work schedule; provides training; dictates how, when, and where work is done
- Contractor indicators: Worker sets their own hours; uses their own methods; works without supervision of day-to-day activities
2. Financial Control
Does the business control the business aspects of the worker’s job?
- Employee indicators: Business provides tools and supplies; worker is paid a regular salary or hourly rate; worker works exclusively for one company
- Contractor indicators: Worker invests in their own equipment; can profit or lose on the engagement; works for multiple clients; sets their own rates
3. Type of Relationship
What is the nature of the relationship between the business and the worker?
- Employee indicators: Written employment contract; employee benefits (health insurance, retirement plan); relationship is indefinite; work is a key aspect of the regular business
- Contractor indicators: Written contractor agreement; no employee benefits; relationship is project-based or for a defined period; worker provides services to the general public
No single factor is determinative. The IRS looks at the totality of the relationship.
Tax Consequences of Each Classification
| Factor | W-2 Employee | 1099 Contractor |
|---|---|---|
| Payroll taxes | Employer pays 7.65% FICA + FUTA; withholds employee share | No employer payroll taxes |
| Income tax withholding | Employer withholds | Contractor handles quarterly estimates |
| Workers’ compensation | Employer provides coverage | Contractor’s responsibility |
| Unemployment insurance | Employer pays UI | Not required |
| Benefits | Optional (health, retirement) | Not provided |
| Tax form | W-2 | 1099-NEC (if $600+ in year) |
The Cost of Misclassification
If the IRS determines a contractor should have been classified as an employee, the employer faces:
- Back payroll taxes — employer’s share of FICA for all periods of misclassification
- Penalties — 25% of unpaid taxes for failure to withhold; additional failure-to-deposit penalties
- Interest — on all unpaid amounts from the original due dates
- State exposure — Utah DWS and other state agencies conduct their own audits independently
The IRS has Section 530 relief available for employers who meet certain consistency and reporting requirements — but it requires proactive engagement. We assess eligibility and manage the process.
Classification FAQs
Can a worker be a contractor if they work full-time for my business?
Technically yes, but it’s a significant red flag. Full-time, indefinite-term workers who work exclusively for one business and follow the business’s direction are almost always employees under the IRS test, regardless of what you call them or what contract they sign.
What if the worker prefers to be classified as a contractor?
Worker preference doesn’t determine classification. Classification is based on the actual nature of the working relationship, not on what the worker or business prefers. A worker who agrees to be a contractor doesn’t eliminate the employer’s liability for payroll taxes if the worker is legally an employee.
Is the ABC Test different from the IRS test?
Yes. Some states — most notably California — use the ABC Test for state unemployment and labor law purposes, which is stricter than the IRS test and requires the worker to be free from control, perform work outside the usual course of the hiring entity’s business, and be customarily engaged in an independently established trade. We assess classification under both federal and applicable state standards.
Classify Workers Correctly Before the IRS Does It For You
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Schedule a Classification Review →
See also: Payroll Tax Regulations | Utah Payroll Services | Payroll Best Practices
About the Author: Missy Dennis, CPA — Partner, FJ & Associates, PLLC
Missy holds a Master of Accounting degree from the University of Utah and is a licensed Certified Public Accountant. She is committed to providing clear, accurate, and actionable guidance so clients can navigate complex financial decisions with confidence. With more than twenty years of public accounting experience, Missy Dennis specializes in: tax preparation and tax advisory; bookkeeping strategy alignment; estate and trust taxation; audit and consulting services; low-income housing tax credits; non-profit accounting; and small- and mid-sized business advisory.
