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Taxes and the Gig Economy

David Stewart: Welcome to the podcast. I'm David Stewart, editor in chief of Tax Notes Today International. This week: taxes and the gig economy. In recent years, the way we buy, sell, and even work has undergone a seismic shift. The gig economy has changed the way we eat and the way we travel. And although apps like DoorDash and Uber have made our lives easier, they've brought about significant new obstacles when it comes to taxes. Here to talk about this topic is Tax Notes reporter Paul Jones. Paul, welcome back to the podcast.

Paul Jones: Hi, David. It's good to be here.

David Stewart: Now, can we start off with just a quick overview of what the gig economy is?

Paul Jones: Sure. Essentially, it's the use of mobile apps by people to request services. And those services are provided by people that are essentially working for these larger companies that put out the apps — driving services, delivery services, et cetera. And it's a growing source of part or even full-time employment for many people and a significant source of revenue for those companies. But it does pose various problems to government regulators and some argue gig businesses pass on part of the cost of their business model to taxpayers.

David Stewart: You recently talked to somebody about these issues. Who did you talk to and what did they have to say?

Paul Jones: We spoke with Richard Auxier of the Tax Policy Center, and we spoke specifically about some of the worker-related tax compliance challenges the gig economy presents. And we took a look at how some states are dealing with it. Particularly, we focused on California's effort to force gig companies to treat their workers, drivers, et cetera, as employees and pay employment taxes and how that's playing out and how it might also impact the larger industry. And we also took a look at how other states might want to address the issues raised by the gig economy going forward.

David Stewart: All right. Let's go to that interview.

Paul Jones: So, Richard, thank you for being here today.

Richard Auxier: Oh, thanks so much for having me, Paul.

Paul Jones: I wanted to talk about the gig economy. Obviously, this is the economy that allows people to request services via a mobile app, and it allows people also to sign up, to get paid, to provide those services such as delivering food or driving people around. This economy has grown pretty rapidly in the last few years. However, gig employees, or workers I should say, are not regular employees. And as a result, they aren't subject to withholding or employment taxes in many places currently. Can you talk for a moment about sort of the tax compliance issues that have arisen as a result of this economy and the fact that these workers are again, not regular employees, but more like independent contractors?

Richard Auxier: Right. Like a lot of issues around the "new" economy in tax, we have just new technologies kind of running into old tax issues. And in this case, even just an old tax problem. I think it'd be great if we just first defined some terms, which is that you can kind of put workers into two buckets. And there's employees: you work for a company and you get W-2. And then there's self-employed workers.

And that latter bucket has a range of people from a plumber who has his own business to a lawyer who she decided she'd rather have passthrough income. But also that includes the home care workers and construction workers who instead of getting a W-2 are getting a 1099-MISC. They're being labeled as a self-employed person.

What the gig economy has done is kind of highlighted this issue, which has always existed, which is that for some of these lines, it's very clear. I get a W-2 at my job. I'm an employee. Simple. It was never under any question. The plumber who started his own business, clearly he's self employed. But for a lot of people, this comes down to how the employer is labeling the person more than what they're doing. And we know, again, this has been a long-term problem that a lot of people are misclassified. Their employer treats them as a self-employed person to reduce costs so they don't have to, as you said, have tax withholding and pay their share of payroll taxes.

And with companies like Uber, Lyft, DoorDash, Instacart, you've had these companies decide that they can create a workforce by making them all self-employed people, where these people are literally then their own business when they go to file their taxes. The companies say it's advantageous to them because if you're your own business, you set your own hours. You are more likely to go out and take a job and be inspired. But the very large downside of that is that these workers lack the protection of employees. And that ranges from things like unemployment insurance to minimum wage protection, worker compensation. But it also means that there are large tax liabilities that they are now responsible for because in a sense they are a business.

Paul Jones: Right. And I know that I've also heard from California officials that there's relatively low compliance with income tax payments on the money that gig economy workers receive as well. So, there seems to be a variety of issues here. I know that some states have been working on improving outreach to these workers and working with these companies and considering regulations to address some of these problems.

And California obviously has gotten a lot of attention because it took the step of establishing A.B. 5, a somewhat controversial new law. It effectively establishes in statute a three-part test for whether a worker is an independent contractor, or like you said, sort of a self-employed person or an employee of a company. And it has the effect of redefining a lot of people, including many people in the gig economy, as employees of these companies. And obviously the intention of the backers of A.B. 5 in part is to ensure that these workers are paying and their employers are paying into the unemployment insurance system and withholding it, et cetera.

Do you think that this is a law that is going to benefit California? Do you think it's going to increase tax revenue to the state? That it's going to improve and provide support for the unemployment system? Or is it potentially going to result in some unintended consequences?

Richard Auxier: Yes. To all of it. A.B. 5 is a really important law, but again, it's important to note that it's not revolutionary. This isn't just a law aimed at Uber and Lyft and these other newer companies, who happen to get a lot of attention since they have a lot of money to spend lobbying against these issues. Again, while most people are employees, something like around 80 percent, there is a large share of self-employment workers. And in recent years, while it's kind of difficult to get a specific number on this, we know that the self-employment number has been increasing. But it's been increasing mostly because of a large chair of misclassified workers.

I mentioned it's hard to figure this out and pin this data down. And one of the reasons is that if you ask people whether they're self-employed or an employee, a lot of people who get sent 1099-MISCs and are treated like self-employed people think they're employees because they show up for a job. They have a relationship. They view themselves as a member of that workforce. And so, California's law is just creating a tougher standard for who is an employee and who is allowed to be labeled as self-employed. All states have these laws. The IRS has like a 20-question survey trying to figure this out.

But it's kind of an example where, because the federal rules aren't that tight at the moment, states like California can go above and beyond this to create these higher standards. And you look through like the summaries of the legislation and you listen to people. Again, this is not just about the Uber driver. It's about someone who shows up to the construction site every day, but is treated as a self-employed person. Or someone who is a home care worker every day and is treated as a self-employed person. And these have big ramifications for the individuals.

In addition to doing tax analysis, I also volunteer and help low-income filers do their taxes. And it is not uncommon to see people who think they are employees, who show up to the same job every day, nine to five, show up to do their taxes and realize that no one has paid their payroll share. You know, their employer has not withheld their income taxes. And as a result, they have these very large income tax liabilities when they file.

And so, from the tax perspective, it's making sure that people that are actually employees are treated as such. And one very big component of that as you know, is that when you work for an employer, when you have a W-2, 1) your income tax is withheld throughout the year. That would be a source of revenue for the state. But then 2) payroll taxes. And a big one for these employees, these workers, are the federal ones, but states and localities increasingly also have payroll taxes, whether that's unemployment insurance or increasingly, we see states and localities adding things like paid family leave programs, which also create payroll tax responsibilities. And when you are an employee and the employer has a lot of responsibility in that, and when you increase the share of workers who are employees, you increase the amount of revenue and increase the amount of withholding they're going to have.

Paul Jones: One of the things that I think is sort of interesting is that we're dealing with a certain portion of the California workforce. Some of these people may simply be using gig economy work as a supplemental income. You also noted obviously that some people may simply be classified as self-employed, but they really work sort of more of a regular full-time job. Is this likely to be something that is going to bring in a net gain in revenue to the states, or are these people who may end up taking from the social programs more than they're putting in? Is it likely to be a net gain for the state? Or, when you consider, for example, that some people maybe don't file for the Earned Income Tax Credit, but by increasing the number of people who are filing income tax returns with the state, such as through gig economy work, that you might see an increased demand for the Earned Income Tax Credit that this could result in the state actually paying out more to lower-income people?

Richard Auxier: Yeah. The honest question is I don't know, because even your question kind of illuminates how complex this can get. If you want to view this in a real simple way, you could frame this as what is your average worker who is currently treated as self-employed, but would become an employee under this law? If he or she is a high-income worker, then it's almost all gain for the state because now this worker who might not be filing is now having his income tax withheld and is now paying payroll taxes and having that as a part of the system. However, if it's a low-income filer, it gets a little more complex because they might be eligible for the state EITC, and, you know, while they are now paying their payroll tax at the federal level, but at the state level, they're becoming eligible for these tax credits, which don't actually result in the state getting money.

Again, this is the tax issue that has ramifications for several other policies. For example, one of the biggest challenges with paid family leave legislation is that often the target of that are workers who are hard to cover with the system because the system relies on courting employees and being an employee. If you're a self-employed worker, most of these paid leave programs, you're not eligible for this. So, if you make more people employees, they now become eligible for paid family leave programs. But that said, they're now also paying payroll taxes. Same thing goes with unemployment insurance. They're not paying the payroll tax while they simultaneously become eligible for the program. So, I think if you do something, again, I said, California's law isn't revolutionary, but it's larger and it's noteworthy. And that's why it's noteworthy. Because we can kind of see the ripple effects of this legislation and how it will touch several fiscal programs.

Paul Jones: Interesting. So, that'll be something to keep an eye on then. I have a quick question. A.B. 5 obviously impacts California tax compliance for employers by establishing that workers that they've traditionally treated as self-employed or independent contractors are actually employees. Do you think that A.B. 5's requiring employers to treat their California workers as employees is potentially also going to result in them potentially complying with employment tax obligations at the federal level for those employees? For example, withholding and paying payroll taxes. So that if an employer essentially is now treating a worker in California as an employee and complying with payroll taxes, et cetera, at the state level, that they may just decide to also do that at the federal level? Or do you think you'll have maybe a bifurcated system where under A.B. 5., A worker in California is treated as an employee by a company for state tax purposes and state tax compliance purposes, but that they continue to treat them as a self-employed or independent contractor for federal tax purposes?

Richard Auxier: Yeah, not working at a large company who has to make these decisions in another accounting office, I can't tell you with 100 percent certainty, but I can't imagine how it would not be the same for both. Again, some of this becomes this esoteric question of like, who is an employee and who is self-employed? But I mean, ultimately we're like, are you getting a W-2? And so, if you're getting a W-2, you're having your state and federal taxes withheld. And this is incredibly important for the worker.

Again, when I work with a lot of people, I'm in the District of Columbia, and people come in with their taxes. And a lot of the people who drive for Uber or are a home care worker who's been labeled as self-employed by the person, come in. The problem doesn't have anything to do with their state taxes. It's that they owe both sides of the payroll tax. The payroll tax for federal Medicare and Social Security is supposed to be split between the employer and employee. However, if you're self-employed, you pay all of it. Further, as an employee with a W-2, you're getting that taken out of every paycheck. If you're labeled self-employed, 1) the employer isn't paying that half, that you're now responsible for all of it, which is upwards to like 12 percent of your earnings for the year. And then secondly, you haven't been paying it every stop along the way. And so it's sadly common to see someone who comes in and is blown away by a tax bill they didn't know because they've been misclassified. And because the employer has not been taking that payroll share out.

But then there are a lot of other taxes that just go unreported the state level, too. New Jersey, when they pushed through some legislation, they said Uber owed them $650 million in unemployment and disability taxes. And there's a lot of taxes that don't even show up when you're filing taxes that go missing when a worker is misclassified.

Paul Jones: So there's obviously a lot of complexity there and a lot of potential consequences for changing how these workers are treated. On that note, with companies potentially being required to comply now with withholding and employment taxes, is that going to increase their costs? And if so, is that going to result in them charging more for people's services or paying their workers less? What are some of the potential implications for the gig economy of states like California with, again, A.B. 5 trying to require better compliance with these employment tax obligations and withholding obligations?

Richard Auxier: There's a couple of things going on here, and we can get into issues of flexibility, which is what I think if you've listened to Uber and Lyft, they talk about the most. I have a hard time believing this isn't all about costs. Again, if the person working for you is your employee, you pay half of their payroll tax and you got to withhold it. I mean, that's going to drive up costs. And the business is then going to try to find a way to shift those costs. And this is where it gets interesting. Like I said, all states kind of had these rules, there's federal rules, but they're not very tight. So states can go above and beyond it. And so you get this patchwork of systems.

And another thing that comes into play here is minimum wage. Because if you're an employee, you're eligible for minimum wage. So, the current thinking goes that when you pay the payroll tax as an employer, you just lower your employee's wage. So it all comes out in the wash. Like you don't take at least a full hit because you can put that on it them. OK. But in California, minimum wage is $12 and it's increasing. It'll be $15 in 2023. And so, it's not hard to imagine that there are Uber drivers or Instacart workers out there who are currently making less than minimum wage. And so, how it'll become really difficult for that company to push that cost, that payroll tax share they're not paying, onto the worker if their wages are also now rising up to that level. And then, of course, you get into all the issues of, it's not so much in California, but if you start to think of like New York and New Jersey and Pennsylvania and other Northeast cities where you have these workers working in multiple jurisdictions. And there are different laws and different minimum wages, and now there's going to be a different worker test, possibly. You add a whole other level of complexity for these firms to try to figure out.

And while I think there are very good reasons to have these rules. And I think some of the arguments against them, I don't buy into all of them. I think it's absolutely true that it will add costs and complexity to these businesses.

Paul Jones: Yes. And notably in California, I know that some of these companies like Uber have litigation arguing that they have essentially taken some steps to sort of change their relationship with workers. For example, not having as much control over how much a driver gets paid for a given trip. And they are arguing that this means that they aren't really subject to A.B. 5's provisions. They're claiming that they don't qualify under the three-part test. And then, in addition to that, they are also backing a ballot measure to formally and statutorily exempt themselves from A.B. 5. Do you think that we're going to see if states pursue efforts to get better compliance from gig companies, with respect to various worker protections and obviously tax compliance, that there will be efforts by them to adjust or tweak their business model or even just create fundamental exemptions for themselves to avoid the added burden and complexity?

Richard Auxier: On the policy side of this, there's going to be a lot of arguments because these companies already found a niche for themselves and they are currently paying people. Right? And we've seen this in California, where some companies will no longer hire in California because — or cap the number of people who they're employing in California so that they don't trigger A.B. 5. And this then becomes a really tough decision for policymakers, at least because while I think you could be very pro-worker, want to ensure that the employee is getting all of the benefits and protections that she deserves, it could come in the short term at a cost of jobs because the math is just simple. They would just not hire, especially if it's a patchwork and not a national solution. If states go first, there's possibility that again, they will be singled out and that the amount of employment in that state will be reduced for these companies.

On the company side of this, I have more questions than answers. And that's because, like I said, typically what the company would do is they would shift costs either by lowering wages. And I explained that minimum wage laws might get messy there, or increasing costs. And I think one of the problems that we consistently see with these "gig economies" is that they're artificially keeping their costs low. And a part of it is because they're not paying their workers what they should be getting paid. They're not paying the benefits and taxes that they should be paying. And so can that company still be profitable with having to call their employees, employees? That's a question. A lot of these companies are not profitable already. And to add that burden would kind of shake up. And so I think the actions that Uber and Lyft have taken in California to get a ballot measure, to carve out an exemption for them, is telling to how distressing this is. And again, while I acknowledge the costs are very real, I question if there are not other problems with these companies. It's something to go beyond not wanting to pay their share of payroll taxes.

Paul Jones: I guess then looking at the reaction to A.B. 5 and taking into account the issues that you've raised and discussed, do you think that other states are maybe going to try and follow California's lead? Or are they likely to try and look to maybe come up with their own policies that would differ from California's? Is A.B. 5 a policy that you think is going to have other states lining up to adopt it? Or do you think that there's going to be an effort by other legislators in different states to maybe come up with different ways to address this issue?

Richard Auxier: Yeah. All three. For example, New Jersey has passed legislation this year kind of increasing examinations into companies who might be misclassifying workers and increasing penalties on companies that might be misclassifying workers. New York has talked about similar things. I am sure that labor advocates across the country are looking for opportunities to pass A.B. 5-style legislation. Again, just know this goes beyond just Uber and Lyft. Virginia passed some legislation this year also increasing financial penalties on companies that have misclassified. It didn't get much attention because they were just kind of joining most other states. They had had some relatively low barriers to this. And so every state has these laws. It's just a range and where the state is varies depending on their politics and their approach to labor and business, but probably all on very similar lines. And if you want to know what states are going to be looking to do to make these stronger, you know, go look at the states that are passing paid leave laws or are trying to eliminate tip minimum wage.

If you want to look at states that are not going to do this, check out right-to-work states. They are probably not going to be looking to change how they treat worker classification. Uber and Lyft are interesting. Again, because it's new, there are people working for them that states don't want to see become unemployed, especially right now. And they also, they just simply have a lot of money and they can lobby for rules. And I think that a New York Times article said that half the states have passed laws explicitly deeming drivers as contractors. And that is totally lawful. Even the California legislation had language that said, "We are going to make our rules stricter, but that certain people like podiatrists and veterinarians and psychologists are exempt." They just did not exempt Uber and Lyft. And that was the difference. And I think you're going to see a lot of fights over that carveout in states where states press forward. Because again, misclassification is an issue that goes well beyond the economy. It has ramifications well beyond the tax withholding, but then every time they go have these conversations, Uber and Lyft and similar gig economies are going to be right there, demanding their carveout.

Paul Jones: So, it sounds like we're a long way from sort of resolving what the best way of addressing this is. If it even is a single direction that everyone decides ultimately to endorse. I did want to sort of explore something. Uber's CEO sent a letter to the Trump administration earlier this year, that was during the COVID-19 pandemic's initial wave and the shutdowns that were occurring. And a lot of gig workers were obviously seeing significantly less work. And there was a debate about unemployment benefits for gig economy workers, et cetera. And the Uber CEO's idea that he proposed to the Trump administration was that there might be a third category created for gig economy workers that were not quite the same as a true self-employed business owner or worker, but also not fully an employee of another company. Do you think there's any merit to that idea that that's possibly going to be a part of this conversation going forward? The idea that this is sort of a new class of worker, maybe too casual to be a true self-employed person as we've traditionally understood that, but not quite as at the beck and call a regular worker for a company to be a true employee?

Richard Auxier: Oh yeah. And I mean, this issue is undoubtedly complex, as we've proven over the course of our conversation. What I would be interested in, and I'm sure what policymakers are interested in, is where is Uber drawing the line? For example, we've talked about schedules. If you read an article about this and you read a press release, what Uber will say is that these laws are bad because we can't let people work when they want to work. And we're all about independence. And that's because if you're an employee, there are worker protections that basically say like, you can't be forced to work all the time.

I am quite sure that state and federal lawmakers, a lot of them, would be interested to work an arrangement out where someone who drives for Uber or works in a similar gig employment is allowed more flexibility in their schedule because they've chosen that type of work. Similarly, we do this already. Again, like I brought up the tip minimum wage earlier. In most states, if you work as a bartender or a server, you can be paid a smaller minimum wage than the regular minimum wage. So, we have carveouts. But, an important footnote on that is that servers are supposed to report their tips to their employer so that the employer can pay payroll taxes on their income. Does Uber's proposal include them paying their share of federal payroll taxes? Does it include them paying state and local payroll taxes? Does it include them withholding income taxes?

I am a little cynical about that because I think that's what they're really concerned about. I don't think it's about flexibility. I think it is about these tax issues we've been discussing and that they don't want to pay them. So, it just depends on what they want. And I do think that there are ways that you can kind of find a way of assisting these workers and assisting these companies around certain issues. But if the issue is that simply, we don't want to pay these costs that other employers do. I don't think you're going to get a very receptive audience from a lot of lawmakers.

Paul Jones: So it sounds like, in a way, what we're dealing with is a new spin on an older question, as you alluded to earlier. Richard, thank you so much for speaking with us about this topic. I really appreciate it.

Richard Auxier: Thank you so much, Paul. It's been a pleasure.

David Stewart: And now coming attractions. Each week, we highlight new and interesting commentary in our magazines. Joining me now from her home is Acquisitions and Engagement Editor in Chief Faye McCray. Faye, what will you have for us?

Faye McCray: Thank you, Dave. In Tax Notes Federal, David Chamberlain explores the ways in which the Tax Court can confront the problem of arm’s-length transfer prices when one of the related parties bears substantial risk but owns no valuable intangible property. Timothy Lindstrom analyzes two new technical objections to conservation easements raised by the IRS and upheld by the Tax Court. In Tax Notes State, Clark Calhoun and Joshua Labat discuss real estate transfer taxes in a case that reexamined the “realty sold” and leasehold concept. Three practitioners from RSM discuss five issues companies should consider during their planning for a virtual transformation. And on the Opinions page, Robert Goulder examines whether U.S. cultural opposition to VAT will change as a result of the COVID-19 pandemic. Roxanne Bland discusses recent investigations into the abuse of tax incentives. And now for a closer look at what's new and noteworthy in our magazines, here is Tax Notes Executive Editor for Commentary Jasper Smith.

Jasper Smith: Thanks, Faye. I'm here with Tax Notes contributing editor Nana Ama Sarfo to discuss her piece "Rwanda Leading African Sustainable Investment Drive," which was a recent cover story for Tax Notes International. Ama is joining us by phone from Pennsylvania. Welcome, Ama. Always great talking to you.

Nana Ama Sarfo: Thanks Jasper. Likewise.

Jasper Smith: Can you tell us a little bit about your article?

Nana Ama Sarfo: Sure. So, my article looks at Rwanda and how it is incorporating sustainable tax principles into a new financial center that it's developing in the capital city Kigali. So, the Rwandan government really wants this center, the Kagali International Financial Center, to become a finance hub for East Africa and really the rest of the African continent and even beyond that. It's looking to compete with financial centers like Mauritius, which is a well-known one off of the coast of Southern Africa. And then also compete with Kenya, which is planning its own international financial center in Nairobi. And at the same time, the government is really intent on ensuring that this project is based on good tax governance principles and that it's following OECD tax transparency standards, that it's following European Union tax transparency standards. So, as part of that, Rwanda has taken an active role in the OECD's Africa Initiative.

And it's also been focused on potentially negotiating fair tax treaties with other countries because it wants to boost this tax treaty network in anticipation of the center. And it's also intent on ensuring that the project can generate sustainable tax revenue for the country too, because Rwanda does not want to create the impression that Kigali will become a tax haven. It really wants to avoid that moniker that's kind of stuck to other financial centers.

So, I looked at the various ways in which Rwanda is trying to achieve this objective and how a project like this could play a role in advancing good tax governance standards for Rwanda's partners. And also how a project like this links to the global social contract and the idea that one jurisdiction's tax sovereignty should not create tax dilemmas for others.

Jasper Smith: Definitely a very interesting look at it. And was there anything in particular that led you to write about that topic?

Nana Ama Sarfo: Well, I was invited to participate in a symposium organized by Afronomics Law. And Afronomics Law is an organization of African lawyers and scholars and policymakers who focus on economic law issues. And the topic for this particular symposium was taxation and the social contract in the era of COVID-19. And in the wake of the coronavirus pandemic, there's been a lot of attention paid to how developing countries can structure their economic recoveries, so that they do not have to rely as heavily on economic support packages from the World Bank and the IMF moving forward. In that vein, I was thinking about financial centers and investment hubs on the continent and the role that they could potentially play in generating recovery. And in that process, I stumbled upon information about the Kigali center and I happened to see a news alert that CDC Group had just invested in the enterprise. And CDC Group is owned by the British government. It's the U.K.'s development finance institution. So I thought, you know what? I should look into this. And that's how the article was born.

Jasper Smith: Fascinating. And thanks so much for that background, as well as the general overview of the article. But can you tell listeners where they might be able to find you online?

Nana Ama Sarfo: Absolutely. They can find me just about every week in Tax Notes International. And then, in other places, they can find me on Twitter. My handle is @NanaAma_Sarfo. They can find me on LinkedIn, my full name, and I'm always available via email. I definitely welcome thoughts, suggestions, constructive feedback.

Jasper Smith: You can also, as Ama mentioned, find her articles online, And please be sure to subscribe to our YouTube channel, Tax Analysts, for more in depth discussions on what's new and noteworthy in Tax Notes. Again, our YouTube page is Tax Analysts with an s. Back to you, Dave.

David Stewart: You can read all that and a lot more in the pages of Tax Notes Federal, State, and International. That's it for this week. You can follow me online @TaxStew, that's S-T-E-W. And be sure to follow @TaxNotes for all things tax. If you have any comments, questions, or suggestions for a future episode, you can email us at And as always, if you like what we're doing here, please leave a rating or review wherever you download this podcast. We'll be back next week with another episode of Tax Notes Talk.

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