Publication 3953 (4-2012) QUESTIONS AND ANSWERS ABOUT TAX COURT PROCEEDINGS FOR DETERMINATION OF EMPLOYMENT STATUS UNDER I.R.C. SECTION 7436

Introduction

In this publication, the Internal Revenue Service ("Service") provides you with general information that may be helpful when you receive a Notice of Determination of Worker Classification ("notice of determination"). If you wish to discuss your particular situation with someone at the Service, call the person whose name and telephone number appear on the first page of the notice of determination. You may also address questions about all aspects of the Tax Court's proceedings to the court at the following address:

United States Tax Court 400 Second Street, NW Washington, DC 20217

Please note that contacting either the Service or the Tax Court does not extend the deadline by which you must file a Tax Court petition (if you choose to file one). (For more information on this, see Question 5 "When is the deadline for filing a Tax Court petition for determination of employment status?".)

1. What is a notice of determination of worker classification?

The Notice of Determination of Worker Classification is your legal notice that you may begin a proceeding for determination of employment status in the United States Tax Court. The notice of determination provides you with the right to go to Tax Court, but you may choose not to do so. (See question 9, "What happens if you decide not to file a Tax Court petition?")

The date on which the notice of determination is mailed by certified or registered mail also begins the time period during which you may file a petition in Tax Court asking that court to redetermine some or all of the Internal Revenue Service's three determinations described in the next section.

2. What are the three "determinations" made by the Internal Revenue Service before a notice of determination of worker classification is issued?

After an employment tax audit is completed, the Service makes the following three determinations before a notice of determination is issued.

WORKER CLASSIFICATION. The Service has determined that one or more individuals who provide services to you should be legally classified as your employees.

SECTION 530 TREATMENT. Generally, section 530(a) provides your business with relief from federal employment tax obligations if the following three requirements are met: (1) you timely filed all returns that are consistent with how you classified the worker(s); (2) you have not treated the worker(s), or any worker holding a substantially similar position, as an employee at any time after December 31, 1977; and (3) you had a reasonable basis for not classifying the worker(s) as an employee.

The Service has determined that you are not entitled to relief from employment tax under the treatment of section 530(a) of the Revenue Act of 1978.

AMOUNT OF EMPLOYMENT TAX. The Service has determined the amount of additional employment tax, additions to tax, and penalties that results from the other two determinations. "Employment tax" includes tax imposed under Federal Insurance Contributions Act (FICA) (both the Old Age, Survivors, Disability Insurance (OASDI) portion of FICA and the Hospital Insurance (HI) portion of FICA, commonly called the "social security" and the "medicare" portions of FICA), the Federal Unemployment Tax Act (FUTA), the Railroad Retirement Tax Act (RRTA), and federal income tax withholding (ITW).

3. What is the proceeding for determination of employment status?

Once you have received a notice of determination, you may, within a period of time established by law, begin a proceeding for the determination of employment status by filing a petition in the United States Tax Court. In that proceeding, you ask the Tax Court to make its independent determinations whether the Service was correct when it made the three determinations described in question 2. In making its decision, the Tax Court takes a fresh look at the issues, so that you must produce evidence for the court to consider, even if you previously provided it to the Service during the audit.

4. Who may file a petition for determination of employment status?

You may file a petition for determination of employment status only if the Service issued you a notice of determination. The Service issues notices of determination to the person(s) for whom services were performed by the workers the Service is reclassifying as employees.

Generally, separate notices are sent to husbands and wives who file a joint return. If the notice of determination is addressed to both husband and wife, and both want to petition the Tax Court, either (1) both must sign and file one petition or (2) each must file a separate, signed petition.

5. When is the deadline for filing a Tax Court petition for determination of employment status?

The time you have to file a petition with the Tax Court is set by law and cannot be extended or suspended. Thus, contacting the Service or the Tax Court for more information, or receiving other correspondence from the Service, will not change the period for filing a petition with the Tax Court.

Generally, you must file the petition with the Tax Court before the 91st day after the date the notice of determination was mailed by certified or registered mail. For special rules governing how a bankruptcy proceeding affects the deadline, see question 11, "What effect do bankruptcy proceedings have on the Tax Court proceedings?"

The petition will be considered timely filed if it is filed by the date indicated on the first page of the notice of determination under the heading, "Last Day to File a Petition With the United States Tax Court." The petition is considered timely filed if the postmark date (either by the U.S. Postal Service or a designated private delivery service) falls within the period described above for filing a petition.

6. How do you file a Tax Court petition for determination of employment status?

You can get a copy of the rules for filing a petition for determination of employment status by writing to the address below.

United States Tax Court 400 Second Street, NW Washington, DC 20217

You should write promptly if you intend to file a petition with the Tax Court.

You may also obtain information about filing the petition and the rules of the Tax Court from the Tax Court's website: http://www.ustaxcourt.gov.

To file the petition, timely send the completed petition, a copy of the notice of determination, and a copy of all statements and/or schedules you received with the notice of determination (but not this publication) to the Tax Court at the above address.

7. Who may represent you in the Tax Court proceedings?

You may be represented by anyone admitted to practice before the Tax Court. In addition, if you are an individual, you may represent yourself before the Tax Court. If you are a corporation or unincorporated association, you may be represented by an authorized officer of the corporation or by an authorized member of the association. If you are an estate or trust, you may be represented by your fiduciary.

8. Is an election to use the Tax Court's simplified "small case procedures" available in a proceeding for determination of employment status?

Yes. The Tax Court has simplified "small case procedures" that you may elect for your case. In a proceeding for determination of employment status, you may elect those simplified procedures when the amount in dispute (including tax, additions to tax, and penalties) is $50,000 or less for each calendar quarter involved. The Service also has the right to oppose the election.

You can get more information about the simplified procedures and how that election affects your appeal rights on the Tax Court's website at http://www.ustaxcourt.gov, or by writing to the Tax Court at:

United States Tax Court 400 Second Street, NW Washington, DC 20217

You should write promptly if you intend to file a petition with the Tax Court.

9. What happens if you decide not to file a Tax Court petition?

If you decide not to file a petition with the Tax Court, you may wish to sign the waiver form (Form 2504-WC) enclosed with the notice of determination and return it to the Service at the IRS address on the top of the first page of the notice of determination. This will permit the Service to assess the proposed assessment quickly and can help limit the accumulation of interest.

If you decide not to sign and return the waiver, and you do not file a petition with the Tax Court within the time limit, the law requires the Service to assess the employment tax, additions to tax, and/or penalties, plus the interest required by law, and bill you for the assessment after 90 days from the date of the notice of determination.

If you do not file a Tax Court petition within the allotted time, you still may seek judicial review of the Service's worker classification and section 530 determinations and the proper amount of employment tax under such determinations by filing a refund suit in district court or in the Court of Federal Claims. Please note that before a refund suit can be filed, you must pay to the IRS the amount of employment tax that relates to one worker for one tax period and file a claim for refund with the IRS. If the claim for refund is denied (or the IRS does not respond to the refund claim for six months), you may file a refund suit in district court or the United States Court of Federal Claims and challenge the employment tax assessment.

10. What is your liability for interest?

By law, interest accrues on any underpayment of tax that is not timely paid. Interest accrues on the underpayment of tax, additions to tax, penalties, and accrued interest.

If you are a C-corporation and you have an underpayment of $10,000 or more, section 6621(c) of the Internal Revenue Code requires that the Service charge you an interest rate two percent higher than the normal rate.

11. What effect do bankruptcy proceedings have on the Tax Court proceedings?

BANKRUPTCY PROCEEDINGS BEGUN BEFORE NOTICE OF DETERMINATION IS ISSUED. If you are in bankruptcy and the automatic stay under Bankruptcy Code section 362(a) is in effect as of the date of the notice of determination, you are prohibited from filing a petition with the Tax Court while the automatic stay is in effect. If you nevertheless file a Tax Court petition while the automatic stay is in effect, the Tax Court petition will be completely void. You may ask the Bankruptcy Court to lift the stay so you can file a petition with the Tax Court, or, once the automatic stay is no longer in effect by operation of law, you may then file a Tax Court petition. Once the automatic stay is lifted by the Bankruptcy Court or terminated by operation of law, you must calculate the deadline for filing the Tax Court petition as follows: the petition must be filed before the 151st day after the date the automatic stay is terminated. We suggest that you file your Tax Court petition as soon as possible after the Bankruptcy Court lifts the automatic stay or the automatic stay is no longer in effect by operation of law.

BANKRUPTCY PROCEEDINGS BEGUN AFTER NOTICE OF DETERMINATION IS ISSUED BUT BEFORE TAX COURT PETITION IS FILED. If you file a bankruptcy petition after the date of the notice of determination but before filing a Tax Court petition, you are precluded from filing a Tax Court petition while the automatic stay under Bankruptcy Code section 362(a) is in place. If you nevertheless file a Tax Court petition while the automatic stay is in effect, the Tax Court petition will be completely void. Once the automatic stay is lifted by the Bankruptcy Court or terminated by operation of law, you must calculate the deadline for filing a Tax Court petition as follows:

the period for filing a Tax Court petition (before the 151st day) after the date the automatic stay is terminated

is reduced by

the number of days between the date of the notice of determination and the date the bankruptcy petition was filed.

Example. The notice of determination is sent to you by certified mail on May 1, 2001. You file a bankruptcy petition in the Bankruptcy Court on June 1, 2001. You ask the Bankruptcy Court to lift the automatic stay. On June 18, 2001, the Bankruptcy Court lifts the automatic stay so that you can file a petition. When would be the last day by which you could timely file your petition for redetermination of employment status?

First, you must calculate the 151st day after the date the automatic stay is lifted. The 151st day after June 18, 2001, is November 16, 2001.

Then, from that date, you must reduce the number of days that elapsed from the date of the notice of determination to the date you filed your bankruptcy petition. Thirty-one days elapsed between May 1, 2001 and June 1, 2001. Thus, the deadline for filing the Tax Court petition would be thirty-one days before November 16, 2001. That date would be October 16, 2001. So, the Tax Court petition would have to be filed before October 16, 2001, which means that the petition must be filed no later than October 15, 2001.

We suggest that you file your Tax Court petition as soon as possible after the Bankruptcy Court lifts the automatic stay or the automatic stay is no longer in effect by operation of law.

12. How do you contact a Taxpayer Advocate?

If you have questions/concerns about the Notice of Determination of Worker Classification, first contact the person whose name and telephone number appear at the top of the first page of the notice. This person can directly access your tax information and help you get answers.

Do you want assistance by a Taxpayer Advocate? This assistance is not a substitute for established IRS procedures, formal Appeals processes, etc. The Taxpayer Advocate cannot reverse legal or technically correct tax determinations, nor extend the time allowed by law to file a petition in the United States Tax Court. However, the Taxpayer Advocate can give your tax matter proper and prompt handling when unresolved through normal channels. You can call toll-free 1-877-777-4778 and ask for Taxpayer Advocate assistance, or call the telephone number of the Taxpayer Advocate for the IRS office listed below that issued the Notice of Determination of Worker Classification.

Taxpayer Advocate Offices:

ALABAMA Birmingham Office Taxpayer Advocate 801 Tom Martin Dr. Birmingham, AL 35211 (205) 912-5631

ALASKA Anchorage Office Taxpayer Advocate 949 East 36th Ave., Stop A-405 Anchorage, AK 99508 (907) 271-6877

ARIZONA Phoenix Office Taxpayer Advocate 210 E. Earll Dr., Stop 1005-PHX Phoenix, AZ 85012 (602) 207-8240

ARKANSAS Little Rock Office Taxpayer Advocate 700 West Capitol St., Stop 1005-LIT Little Rock, AR 72201 (501) 324-6269

CALIFORNIA Laguna Niguel Office Taxpayer Advocate 24000 Avila Road-Room 3362 Laguna Niguel, CA 92677 (949) 389-4804

Los Angeles Office Taxpayer Advocate 300 N. Los Angeles St. Stop 1005-LA Room 5119 Los Angeles, CA 90012 (213) 576-3140

Oakland Office Taxpayer Advocate 1301 Clay St. #1540S Oakland, CA 94612 (510) 637-2703

Sacramento Office Taxpayer Advocate 4330 Watt Ave. N. Highlands, CA 95660 (916) 974-5007

San Jose Office Taxpayer Advocate 55 S. Market St., Stop HQ000-4 San Jose, CA 95113 (408) 817-6850

COLORADO Denver Office Taxpayer Advocate 600 17th St., Stop 1005-DEN Denver, CO 80202-2490 (303) 446-1012

CONNECTICUT Hartford Office Taxpayer Advocate 135 High St., Stop 219 Hartford, CT 06103 (860) 756-4555

DELAWARE Wilmington Office Taxpayer Advocate 409 Silverside Rd. Wilmington, DE 19809 (302) 791-4502

DISTRICT OF COLUMBIA Baltimore Office Taxpayer Advocate 31 Hopkins Plaza Baltimore, MD 21201 (410) 962-2082

FLORIDA Ft. Lauderdale Office Taxpayer Advocate 7850 SW 6th Court Plantation, FL 33324 (954) 423-7677

Jacksonville Office Taxpayer Advocate 841 Prudential Dr., Suite 100 Stop:TA:SE/INT:JAX Jacksonville, FL 32207 (904) 665-1000

GEORGIA Atlanta Office Taxpayer Advocate 401 W. Peachtree St., NW, Summit Building Stop 202-D Atlanta, GA 30308 (404) 338-8099

HAWAII Honolulu Office Taxpayer Advocate Stop H-405 300 Ala Moana Blvd., #50089 Honolulu, HI 96850 (808) 539-2870

IDAHO Boise Office Taxpayer Advocate 550 West Fort St., Box 041 Boise, ID 83724 (208) 334-1324

ILLINOIS Chicago Office Taxpayer Advocate 230 S. Dearborn St. Stop 1005-CHI Chicago, IL 60604 (312) 566-3800

Springfield Office Taxpayer Advocate 320 W. Washington St. Stop 1005-SPD Springfield, IL 62701 (217) 527-6382

INDIANA Indianapolis Office Taxpayer Advocate 575 N. Pennsylvania St., Stop TA770 Indianapolis, IN 46204 (317) 226-6332

IOWA Des Moines Office Taxpayer Advocate 210 Walnut St., Stop 1005-DSM Des Moines, IA 50309 (515) 284-4780

KANSAS Wichita Office Taxpayer Advocate 271 W. 3rd St., North Stop 1005-WIC Wichita, KS 67202 (316) 352-7506

KENTUCKY Louisville Office Taxpayer Advocate 600 Dr. MLK Jr. Place Federal Building-Room 622 Louisville, KY 40202 (502) 582-6030

LOUISIANA New Orleans Office Taxpayer Advocate 600 South Maestri Pl., Stop 2 New Orleans, LA 70130 (504) 558-3001

MAINE Augusta Office Taxpayer Advocate 68 Sewall St., Room 313 Augusta, ME 04330 (207) 622-8528

MARYLAND Baltimore Office Taxpayer Advocate 31 Hopkins Plaza Baltimore, MD 21201 (410) 962-2082

MASSACHUSETTS Boston Office Taxpayer Advocate 25 New Sudbury St. Boston, MA 02203 (617) 316-2690

MICHIGAN Detroit Office Taxpayer Advocate McNamara Federal Building 477 Michigan Ave.-Room 1745 Detroit, MI 48226 (313) 628-3670

MINNESOTA St. Paul Office Taxpayer Advocate Stop 1005-STP 316 North Robert St. St. Paul, MN 55101 (651) 312-7999

MISSISSIPPI Jackson Office Taxpayer Advocate 100 W. Capitol St., Stop JK31 Jackson, NIS 39269 (601) 292-4800

MISSOURI St. Louis Office Taxpayer Advocate Robert A. Young Building 1222 Spruce St., Stop 1005-STL St. Louis, MO 63103 (314) 612-4610

MONTANA Helena Office Taxpayer Advocate Federal Building 301 S. Park, Stop 1005-HEL Helena, MT 59626-0023 (406) 441-1022

NEBRASKA Omaha Office Taxpayer Advocate 1313 Farnam St., Stop 1005-OMA Omaha, NE 68102 (402) 221-4181

NEVADA Las Vegas Office Taxpayer Advocate 4750 West Oakey Blvd. Stop 1005-LVG Las Vegas, NV 89102 (702) 455-1241

NEW HAMPSHIRE Portsmouth Office Taxpayer Advocate Federal Office Building 80 Daniel St. Portsmouth, NH 03801 (603) 433-0571

NEW JERSEY Springfield Office Taxpayer Advocate 955 S. Springfield Ave. Springfield, NJ 07081 (973) 921-4043

NEW MEXICO Albuquerque Office Taxpayer Advocate 5338 Montgomery Blvd. N.E. Stop 1005-ALB Albuquerque, NM 87109 (505) 837-5505

NEW YORK Albany Office Taxpayer Advocate Leo O'Brien Federal Building 1 Clinton Square Albany, NY 12207 (518) 427-5413

Brooklyn Office Taxpayer Advocate 10 Metro Tech Center 625 Fulton St. Brooklyn, NY 11201 (718) 488-2080

Buffalo Office Taxpayer Advocate 201 Como Park Blvd. Buffalo, NY 14227 (716) 686-4850

Manhattan Office Taxpayer Advocate 290 Broadway-7th Floor New York, NY 10007 (212) 436-1011

NORTH CAROLINA Greensboro Office Taxpayer Advocate 320 Federal Place, Room 125 Greensboro, NC 27401 (336) 378-2180

NORTH DAKOTA Fargo Office Taxpayer Advocate 657 2nd Ave., N. Stop 1005-FAR Fargo, ND 58102 (701) 239-5141

OHIO Cincinnati Office Taxpayer Advocate 550 Main St., Room 3530 Cincinnati, OH 45202 (513) 263-3260

Cleveland Office Taxpayer Advocate 1240 E. Ninth St., Room 423 Cleveland, OH 44199 (216) 522-7134

OKLAHOMA Oklahoma City Office Taxpayer Advocate 55 N. Robinson, Stop 1005-OKC Oklahoma City, OK 73102 (405) 297-4055

OREGON Portland Office Taxpayer Advocate 1220 S.W. 3rd Ave., Stop O-405 Portland, OR 97204 (503) 326-2333

PENNSYLVANIA Philadelphia Office Taxpayer Advocate 600 Arch St. Philadelphia, PA 19106 (215) 861-1304

Pittsburgh Office Taxpayer Advocate 1000 Liberty Ave. Pittsburgh, PA 15222 (412) 395-5987

RHODE ISLAND Providence Office Taxpayer Advocate 380 Westminster St. Providence, RI 02903 (401) 525-4200

SOUTH CAROLINA Columbia Office Taxpayer Advocate 1835 Assembly St. MDP 03 Columbia, SC 29201 (803) 253-3029

SOUTH DAKOTA Aberdeen Office Taxpayer Advocate 115 4th Ave., Southeast Stop 1005-ABE Aberdeen, SD 57401 (605) 226-7248

TENNESSEE Nashville Office Taxpayer Advocate 801 Broadway, Stop 22 Nashville, TN 37203 (615) 250-5000

TEXAS Austin Office Taxpayer Advocate 300 E. 8th St., Stop 1005-AUS Austin, TX 78701 (512) 499-5875

Dallas Office Taxpayer Advocate 1114 Commerce St. 10th Floor MC1005 Dallas, TX 75242 (214) 767-1289

Houston Office Taxpayer Advocate 1919 Smith St., Stop 1005-HOU Houston, TX 77002 (713) 209-3660

UTAH Salt Lake City Office Taxpayer Advocate 50 South 200 East, Stop 1005-SLC Salt Lake City, UT 84111 (801) 799-6958

VERMONT Burlington Office Taxpayer Advocate Courthouse Plaza 199 Main St. Burlington, VT 05401 (802) 860-2089

VIRGINIA Richmond Office Taxpayer Advocate 400 North 8th St. Richmond, VA 23240 (804) 916-3501

WASHINGTON Seattle Office Taxpayer Advocate 915 2nd Ave., Stop W-405 Seattle, WA 98174 (206) 220-6037

WEST VIRGINIA Parkersburg Office Taxpayer Advocate 425 Juliana St. Parkersburg, WV 26101 (304) 420-6616

WISCONSIN Milwaukee Office Taxpayer Advocate 310 West Wisconsin Ave. Stop 1005-MIL Milwaukee, WI 53203 (414) 297-3046

WYOMING Cheyenne Office Taxpayer Advocate 5353 Yellowstone Rd. Stop 1005-CHE Cheyenne, WY 82009 (307) 633-0800

TAXPAYER LIVING ABROAD OR IN U.S. TERRITORIES

A/C International Taxpayer Advocate 7 Tabonuco Street San Patricio Office Building Room 200 Guaynabo, Puerto Rico 00966 or P.O. Box 193479 San Juan, Puerto Rico 00919-3479 (787) 622-8940 English (787) 622-8930 Spanish

CENTERS

Andover Center Taxpayer Advocate P.O. Box 9055, Stop 121 Andover, MA 01810-9055 (978) 474-5549

Atlanta Center Taxpayer Advocate P.O. Box 48-549, Stop 29A Doraville, GA 30362 (770) 936-4500

Austin Center Taxpayer Advocate P.O. Box 934, Stop 1005-AUSC Austin, TX 78767 (512) 460-8300

Brookhaven Center Taxpayer Advocate P.O. Box 960, Stop 102 Holtsville, NY 11742 (631) 654-6686

Cincinnati Center Taxpayer Advocate P.O. Box 1235, Stop 11-G Cincinnati, OH 45201-1235 (859) 292-5316

Fresno Center Taxpayer Advocate P.O. Box 12161, Stop 01 Fresno, CA 93776 (559) 443-7582

Kansas City Center Taxpayer Advocate P.O. Box 24551 Stop 1005-Annex 10 Kansas City, MO 64131 (816) 926-2493

Memphis Center Taxpayer Advocate P.O. Box 30309 AMF, Stop 13M Memphis, TN 38130 (901) 395-1900

Ogden Center Taxpayer Advocate P.O. Box 1640 Stop 1005 Ogden, UT 84402 (801) 620-7168

Philadelphia Center Taxpayer Advocate P.O. Box 16053, DP #1300 Philadelphia, PA 19114 (215) 516-2499