TREASURY
INSPECTOR GENERAL FOR TAX ADMINISTRATION
Improvements Have Been Made to Monitor Employers That Use Professional Employer Organizations, but More Can Be Done
September 19, 2007
Reference Number: 2007-30-169
This report has cleared the Treasury Inspector General for Tax Administration disclosure review process and information determined to be restricted from public release has been redacted from this document.
Redaction Legend:
1 = Tax Return/Return Information
Phone Number |
202-927-7037
Email Address | Bonnie.Heald@tigta.treas.gov
Web Site |
http://www.tigta.gov
September 19, 2007
MEMORANDUM
FOR COMMISSIONER, SMALL
BUSINESS/SELF-EMPLOYED DIVISION
FROM: Michael R. Phillips /s/ Michael R. Phillips
Deputy Inspector General for Audit
SUBJECT: Final Audit Report – Improvements Have Been Made to Monitor Employers That Use Professional Employer Organizations, but More Can Be Done (Audit # 200630027)
This report presents the results of our review of the efforts
the Internal Revenue Service (IRS) is making to address compliance of Professional
Employer Organizations (hereafter referred to as a PEO or an Organization). The overall objectives of the review were to
determine the steps the IRS is taking to address PEOs that default on paying
employment taxes and to determine what can be done to improve compliance
tracking for those businesses that terminate their use of these Organizations.
Impact on the Taxpayer
A PEO may enter into contracts with numerous companies (clients)
and is responsible for paying employment taxes on wages paid to leased
employees. If the Organization fails to
pay these employment taxes, large tax underpayments can occur in a short time span
because of the large number of employees that are affected. If the Organization defaults on paying the
employment taxes, it usually does not
have significant assets to collect against because it is only a service
company. The IRS’ only recourse may be to collect the amounts due from clients of
the Organizations, which could result
in significant additional expense for the clients who paid fees to the Organizations
to cover the costs of payroll taxes and subsequently must pay again.
Synopsis
Current regulations do not protect clients when PEOs default on paying employment
taxes. In many States, these Organizations provide a financial instrument to protect the State and the client
against loss; 22 States have requirements for the PEOs to be bonded. However, the Federal Government currently does
not require bonding of PEOs.
In March 2006, the
House of Representatives proposed in H.R. 4985,[1] certain requirements for PEOs to become
certified. Besides requiring the posting
of a bond, this bill proposed that an independent certified public accountant
review the Federal employment tax payments of each Organization to ensure it had
withheld and made deposits of all taxes.
Once a year, the certified public accountant would also report whether the
certified Organization’s financial statements are presented fairly, in
accordance with Generally Accepted Accounting Principles. Without regulations such as these, clients of
PEOs and the Federal Government are both at increased risk. Instances of Organizations defrauding their clients are becoming more
prevalent. The following are recent
examples:
At the beginning of this review, the IRS was unable to specifically link businesses with their PEOs. As a result, it could not differentiate
between employers that had become noncompliant and were not paying their
employment taxes and those that had begun using an Organization.
In 2005, the Office
of Taxpayer Burden Reduction of the Small Business/Self-Employed Division
convened a task force to study the use of Employer/Payer Appointment of Agent (Form
2678).[3] The task
force determined Form 2678 was not being used to its full potential and recommended
changes to the way the Form is processed.
It implemented improvements in the way Form 2678 is designed and processed
subsequent to our review. We agree with
the corrective actions taken by the task force; they are an important step in
getting this compliance issue under control.
Recommendations
We recommended
the Commissioner, Small Business/Self-Employed Division, and the IRS Office of
Chief Counsel work with the Office of Tax Policy in the Department of the
Treasury to (1) consider a legislative proposal requiring all current and future
PEOs to become certified, which would include posting a bond for payment of
taxes; and (2) explore all options, including use of the revised Form 2678, to
establish accurate links between the PEOs and their clients. The Commissioner, Small
Business/Self-Employed Division, should also fully implement the changes
proposed by the task force requiring the Employer’s QUARTERLY Federal Tax
Return (Form 941) to list clients, and ensure outreach efforts are adequate to
sufficiently inform taxpayers of the potential risks of using a PEO, which
include remaining liable for employment taxes left unpaid by the PEOs for employees
used by the taxpayer.
Response
IRS management agreed with the recommendations and will work with the Office of Tax Policy in the Department of the Treasury to consider a legislative proposal applicable to PEOs addressing certification and bonding requirements and other requirements such as reviews of quarterly tax payments and annual financial reviews. The IRS will also work with the Department of the Treasury to explore all options to establish links between PEOs and their clients. The Director, Specialty Programs, Small Business/Self-Employed Division, will explore a proposal for PEOs to provide a list of every client whose wages the organization is reporting to the IRS and will work to develop a mechanism requiring this information. The Director, Communications, Liaison and Disclosure, Small Business/Self-Employed Division, will develop an outreach initiative to small business/industry groups that addresses employment tax obligations when the services of a PEO are used. Management’s complete response to the draft report is included as Appendix VI.
Copies of
this report are also being sent to the IRS managers affected by the report
recommendations. Please contact me at
(202) 622-6510 if you have questions or Daniel R. Devlin, Assistant Inspector
General for Audit (Small Business and Corporate Programs), at (202) 622-8500.
Appendices
Appendix
I – Detailed Objectives, Scope, and Methodology
Appendix
II – Major Contributors to This Report
Appendix
III – Report Distribution List
Appendix IV
– Revised Employer/Payer Appointment of Agent (Form 2678)
Appendix
VI – Management’s Response to the Draft Report
Abbreviations
|
IRS |
Internal Revenue Service |
|
PEO |
Professional Employer Organization |
Tax compliance by Professional Employer Organizations (hereafter referred to as a PEO or an Organization) is a growing area of risk. These Organizations began operating in the early 1980s. In this industry, PEOs (also called employee leasing companies) contract with client companies to handle the management of critical human resources and assume some of the employment responsibilities normally handled by their client companies. This includes hiring some or all of the client companies’ employees whose services are then leased back to the client companies (Figure 1 presents the graphical relationship).
According to the National Association of Professional Employer Organizations:
The Professional Employer Organization
relationship involves a contractual allocation and sharing of employer
responsibilities between the Professional Employer Organization and the client.
This shared employment relationship is
called co-employment . . . When
evaluating the employer role of either the Professional Employer Organization
or the client, the facts and circumstances of each employer obligation should
be examined separately, because neither party alone is responsible for
performing all of the obligations of employment. Each party will be solely responsible for
certain obligations of employment, while both parties will share responsibility
for other obligations.
Figure 1: Relationship of
the Professional Employer Organizations, Clients, and Employees
Figure 1 was removed due to its size. To see Figure 1, please go to the Adobe PDF
version of the report on the TIGTA Public Web Page.[4]
A PEO may enter into contracts with numerous companies and is
responsible for paying employment taxes on all the leased employees. If the Organization fails to pay employment
taxes on these leased employees, large tax underpayments can occur in a short time
span because of the large number of employees that are affected. If the Organization defaults on paying the
employment taxes, it usually does not
have significant assets to collect against because it is only a service
company. One criminal investigation determined an Organization owed
the Federal Government approximately $50 million in unpaid taxes.
Revenue Procedure 70-6[5] established procedures to be followed by the Internal Revenue Service (IRS) and taxpayers in applying for authorization to perform acts required of employers under the Federal employment tax statutes. Application for authorization as an agent to perform acts required of an employer should be (1) made in writing by the agent to the IRS campus[6] with whom the agent will file returns upon approval of the application, (2) accompanied by an Employer/Payer Appointment of Agent (Form 2678), and (3) executed by each employer for whom the agent is to act. The employer should submit the properly executed Form 2678 to the agent, who will transmit it to the IRS with a written request for authority to act as the agent of such employer.
This review was conducted at the Small
Business/Self-Employed Division in
Current Regulations Do Not Protect Clients When Professional Employer Organizations Default on Paying Employment Taxes
Discussions with IRS personnel and review of current regulations indicate the IRS may attempt to collect employment taxes from the clients of PEOs if the Organizations default on paying the employment taxes. To get an indication of noncompliance by Organizations, we obtained data from the Division of Occupational and Professional Licensing from 1 State, which indicated 3,118 client companies had ended their associations with 93 Organizations. We reviewed a statistically valid sample of 64 tax records for 27 of these Organizations and determined 8 Organizations were not fully compliant in paying employment taxes. These 8 PEOs owed approximately $38.4 million, and ****1****
Although
employee leasing is a legitimate practice, it is subject to abuse, sometimes on
a significant scale, when a PEO fails to remit payroll taxes to the IRS.
In the event a PEO defaults on paying the employment taxes, it
usually does not have significant
assets to collect against because it is only a service company. The
IRS’ only recourse may often be to collect the amounts due from clients of the Organization. Unfortunately,
this could result in significant additional expense for the clients who pay
their payroll taxes to the IRS in addition to already paying fees to the Organization
intended to cover those costs.
In many States, PEOs provide a financial instrument to protect
the State and the client against loss; currently, 22 States have requirements
for Organizations to be
bonded. According to PEO Insider (a professional magazine for
these Organizations), dated November
2003:[7]
Surety bonds, irrevocable bank letters of
credit and certificates of deposit are used in the PEO industry to meet state
registration and licensing requirements, to provide workers’ compensation
policy collateral, to guarantee PEO performance of employer responsibilities,
and for clients to guarantee payment of service fees. . . . The most common use of surety bonds by PEOs
continues to be to meet various state regulatory requirements. Sometimes these bonds are compliance in
nature, meaning the PEO must adhere to the states’ registration or licensing
requirements. In other instances, the
bonds are posted so the PEO and its clients are not held jointly and severally
liable for unemployment taxes. In still other
instances, the bonds are “deficiency bonds,” meaning the bond is required due
to the PEO’s failure to pay certain taxes on time, poor financial performance,
or failure to provide financial statements demonstrating certain equity levels.
. . . Qualifying for these bonds is not
typically difficult . . .
The Federal
Government currently does not require bonding of PEOs. However, it does require bonding of some
other types of taxpayers. For example, the Employee Retirement Income Security Act
of 1974[8] establishes a comprehensive scheme of
fiduciary[9] duties and responsibilities that are
designed to protect the benefits of the pension plan participants and their
beneficiaries and to prescribe standards that may be enforced. The fiduciaries have a duty to protect the pension
plan assets and to administer and manage the plan and trust in a manner that
protects the interests of the plan participants and beneficiaries. Every fiduciary and every person who handles pension
plan funds must be bonded. The bonding
rules are set forth in Department of Labor Reg. Sections 2580.412-1 through
2580.412-36.[10]
The duties of a PEO are similar to those of a fiduciary in many
ways. The Organization accepts from clients payments that are
intended to cover employee wages, employer and employee portions of Federal
income taxes, Social Security taxes, State taxes when applicable, and fringe
benefits that may be offered through the Organization (e.g., a retirement plan). The Organization is to control these funds
and remit appropriate amounts to the Federal and State Governments.
In March 2006, the
House of Representatives proposed in H.R. 4985[11] certain requirements for PEOs to become
certified. Two of the requirements involved
having the Organization post a bond for the payment of taxes and consent to having quarterly tax
payment reviews as well as annual financial reviews. Besides requiring the posting of a bond, this
bill proposed that an independent certified public accountant review the
Federal employment tax payments of each Organization to ensure it had withheld
and made deposits of all taxes. Once a
year, the certified public accountant would also report whether the certified Organization’s
financial statements are presented fairly, in accordance with Generally Accepted
Accounting Principles.
According to the New York Law Journal, dated July 2003, “In addition to prosecuting the operators of employee leasing companies who abscond with payroll taxes, the IRS has recently begun to seek and obtain civil injunctive relief against such companies, placing them into receivership, freezing their assets and prohibiting their owners from operating similar services.”[12]
However, without regulations
such as those discussed above, clients of PEOs and the Federal Government are
both at increased risk. Instances
of Organizations defrauding their clients
are becoming more prevalent. The
following are recent examples:
Recommendation
Recommendation 1: The Commissioner,
Small Business/Self-Employed Division, and the IRS Office of Chief Counsel,
should work with the Office
of Tax Policy in the Department of the Treasury to consider a legislative
proposal requiring all current and future PEOs to meet the requirements for becoming “certified,”
which would include posting a bond for the payment of taxes and may include
some of the other requirements outlined in H.R. 4985, such as independent
quarterly tax payment reviews as well as annual financial reviews.
Management’s Response: IRS management agreed with this recommendation and will
work with the Office of Tax Policy in the Department of the Treasury to
consider a legislative proposal applicable to PEOs, including certification and
bonding requirements, and other requirements such as reviews of quarterly tax
payments and annual financial reviews.
The Internal Revenue Service Is Taking Actions to Improve Tracking of Employers That Use the Services of a Professional Employer Organization
We identified 761 corporations that
had (1) filed income tax returns for fiscal years ending between February 2003
and March 2006 with significantly large amounts of income and/or wages, (2) stopped filing employment taxes, and (3)
continued to file income tax returns.[13] We selected
a random sample of 59 of these taxpayer entities and reviewed their tax records
to determine if the businesses had indications that employment tax returns
should have been filed.
Our review showed 34
(58 percent) of these 59 taxpayer entities reported significant salaries and/or
wages during the period of our review, indicating the businesses potentially should
have filed Federal employment tax returns.
It is possible these businesses used the services of a PEO.
However, at the time of our review, IRS recordkeeping did not indicate
such a relationship existed.
To administer
employment tax laws and to effectively use scarce compliance resources, the IRS
needs to be able to identify businesses that begin using the services of a PEO,
as well as when businesses terminate the use of those services. Without this ability, the IRS may not take
appropriate actions against businesses that do not pay employment taxes or may
unnecessarily burden taxpayers that are paying through an Organization.
The IRS has taken actions
to improve the tracking of businesses that use the services of a PEO. However, it is still unable to identify all Organizations
and the businesses that use them. Currently,
the IRS uses Form 2678 to record an employer’s (business’) use of third-party
employment companies and receives approximately 30,000 of these Forms per
year. It stores these Forms at two IRS
campuses; however, prior to January 2007, these Forms were not transcribed or
stored in a searchable order.
In 2005, the Office
of Taxpayer Burden Reduction of the Small Business/Self-Employed Division
convened a task force to study the use of Form 2678; it determined the Form was
not being used to its full potential and recommended changes to the way the Form
is processed. The task force implemented
improvements in the way Form 2678 is designed and processed subsequent to our
review, including:
We agree that the corrective
actions taken by this task force are an important step in improving internal
controls over this compliance issue.
Recommendations
Recommendation
2: The Commissioner, Small
Business/Self-Employed Division, and the Office of Chief Counsel should work
with the Department of the Treasury to explore all options, including use of
the revised Form 2678, to establish accurate links between the PEOs and their
clients.
Management’s Response: IRS management agreed with this recommendation and will
work with the Department of the Treasury to explore all options, including use
of the revised Form 2678 or a similar form, to establish accurate links between
the PEOs and their clients.
Recommendation 3: The Commissioner, Small
Business/Self-Employed Division, should fully implement the proposal that Form 941
require attachment of a specific schedule filed by a PEO that will list every
taxpayer on whose behalf the Organization is filing.
Management’s Response: IRS management agreed with this recommendation. The Director, Specialty Programs, Small
Business/Self-Employed Division, will explore a proposal to list every client
whose wages the Organization is reporting and will work to develop a mechanism
requiring this information.
Recommendation 4: The Commissioner, Small
Business/Self-Employed Division, should ensure outreach efforts are adequate to
sufficiently inform clients of the potential risks of using a PEO, which include
remaining liable for payment of employment taxes left unpaid by the PEO on
employees used by the client.
Management’s Response: IRS management agreed with this recommendation. The Director, Communications, Liaison and Disclosure,
Small Business/Self-Employed Division, will develop an outreach initiative to
small business/industry groups which provides a key message and talking points to
address employment tax obligations when the services of a PEO are used.
Appendix I
Detailed Objectives, Scope, and Methodology
The overall objectives of the review were to determine the steps the IRS is taking to address PEOs (also referred to as an Organization) that default on paying employment taxes and to determine what can be done to improve compliance tracking for those businesses that terminate their use of these Organizations. To accomplish our objectives, we:
I. Determined efforts underway by the IRS, the Department of the Treasury, and Congress to address problems with certain third-party payers of employment taxes, such as PEOs.
A. Contacted the Treasury Inspector General for Tax Administration Congressional/Media Liaison to identify pending changes in the Internal Revenue Code covering liability of taxes owed by these Organizations.
B. Analyzed pending legislation to determine whether liability is clearly stated between the Organization and employee-leasing client.
C. Reviewed IRS efforts to improve the functionality of Employer/Payer Appointment of Agent (Form 2678).
D. Reviewed IRS efforts to improve the recording of Organization clients using Employer’s QUARTERLY Federal Tax Return (Form 941).
II. Identified employers that may have hired PEOs to lease employees.
A. Prepared computer requests to identify taxpayers that have stopped filing Forms 941, or whose wages paid are significantly reduced, and are still in business.
1. From the Data Center Warehouse,[15] identified the population of 761 taxpayers who filed Form 941 that had stopped submitting the Forms by extracting those taxpayers who had used Computer Condition Code “F,” indicating the filing of the final return and had income and/or wages of $1 million or more. (This amount was determined by the audit team as significant, but represents no IRS tolerance.)
2.
From the Data Center Warehouse, identified the
population of 24,935 taxpayers whose “Total Compensation” had decreased by 50
percent for any period between the first and fourth quarters of Calendar Year
2005.
3.
Sampled
the returns identified in the computer requests for Steps II.A.1. and II.A.2.
to assess the accuracy of the data.[16]
4. We validated the reliability of the data identified in Step II.A.1. by reviewing a randomly selected sample of 59 cases to ensure the required filing requirements matched the tax returns filed by the taxpayers.
5. We validated the reliability of the data identified in Step II.A.2. by reviewing a sample of 62 cases selected to ensure proper calculations were performed.
III.
Evaluated
the filing and paying compliance of employers identified in Step II by
selecting a statistically valid sample of 59 employers from a population of 761
and determining whether there was a compliance problem indicated.
A. Analyzed the sample selected and determined
whether all required tax returns had been timely submitted to the IRS for
processing. The required returns were
determined from the forms indicated on the employer’s entity module.[17]
B.
Analyzed the same sample and determined
whether all required payments had been made and made on time.
C.
Determined what efforts, if any, the IRS
could take to reduce the identified compliance problems.
IV.
Used PEO data supplied by the Division of Occupational and Professional Licensing for one State. The State providing the data used in this Step
was selected because no cost was associated with obtaining the data. Another State was also contacted for data; however,
the cost of the data would have been significant. We received data showing a total of 3,118 employers
had ended their relationships with 93 Organizations. We reviewed a randomly chosen statistically
valid sample of 64 tax records for 27 of the Organizations.[18]
A. Identified the Organization name by using the Integrated Data Retrieval System.[19]
B. Identified the clients that have ended their relationship with the Organization by finding those taxpayers who had a date indicating the end of the Organization relationship in the data received.
C. Determined the Employer Identification Number of the client by using the Integrated Data Retrieval System.
D. Determined the filing requirements of the taxpayers identified in Step IV. B. using the Integrated Data Retrieval System. We also determined whether the tax returns may have been filed by a parent company.
E. From the Organization data supplied by the State, quantified the number of taxpayers, the number of Organizations, the number of taxpayers ending their relationship with the Organization, and the number of clients that had began the use of another Organization.
Appendix II
Major Contributors to This Report
Daniel R. Devlin, Assistant Inspector General for Audit (Small Business and Corporate Programs)
Kyle R. Andersen, Director
L. Jeff Anderson, Audit Manager
Roy E. Thompson, Auditor
Ali A. Vaezazizi, Auditor
Robert J. Carpenter, Senior Information Technology Specialist
Appendix III
Acting
Commissioner C
Office
of the Commissioner – Attn: Acting Chief
of Staff C
Deputy
Commissioner for Services and Enforcement
SE
Deputy
Commissioner, Small Business/Self-Employed Division SE:S
Director, Examination, Small Business/Self-Employed Division SE:S:E
Director, Taxpayer Burden Reduction SE:S:TBR
Chief Counsel CC
National Taxpayer Advocate TA
Director, Office of Legislative Affairs CL:LA
Director, Office of Program Evaluation and Risk Analysis RAS:O
Office of Internal Control OS:CFO:CPIC:IC
Audit
Liaison: Commissioner, Small
Business/Self-Employed Division SE:S
Appendix IV
Revised
Employer/Payer Appointment of Agent (Form 2678)
The form was removed due to its size. To see the form, please go to the Adobe PDF
version of the report on the TIGTA Public Web Page.
Figure 1 was removed due to its Appendix V
Schedule ____ (Form 941) for
Aggregate Filers: Employers Quarterly Federal Tax Return
The form was removed due to its size. To see the form, please go to the Adobe PDF
version of the report on the TIGTA Public Web Page.
Appendix VI
Management’s Response to the Draft Report
The response was removed due
to its size. To see the response, please
go to the Adobe PDF version of the report on the TIGTA Public Web Page.
[1] Small Business Efficiency Act of 2006, 109th Congress (March 16, 2006).
[2] The New York Law Journal, Volume 230—NO. 12; Thursday, July 17, 2003.
[3] Application for authorization as an agent to perform acts required of an employer should be (1) made in writing by the agent to the IRS campus with whom the agent will file returns upon approval of the application and (2) accompanied by Form 2678. The employer should submit the properly executed Form 2678 to the agent, who will transmit it to the IRS with a written request for authority to act as the agent of such employer. The campuses are the data processing arm of the IRS. They process paper and electronic submissions, correct errors, and forward data to the Computing Centers for analysis and posting to taxpayer accounts.
[5] 1970-1 C.B. 420; 1970 IRB LEXIS 772. A Revenue Procedure is an official statement by the IRS about the practices and procedures to be followed by taxpayers or by the IRS.
[6] The campuses are the data processing arm of the IRS. They process paper and electronic submissions, correct errors, and forward data to the Computing Centers for analysis and posting to taxpayer accounts.
[7] PEO Insider, “PEO Financial Assurance Options Update,” November 2003.
[8] Pub. L. No. 93-406, 88 Stat. 829 (codified as amended in scattered sections of 5 U.S.C., 18 U.S.C., 26 U.S.C., 29 U.S.C., and 42 U.S.C.). This Federal law sets minimum standards for pension plans in private industry.
[9] A fiduciary is one often in a position of authority
who obligates himself or herself to act on behalf of another (as in managing
money or property) and assumes a duty to act in good faith and with care,
candor, and loyalty in fulfilling the obligation; one (as an agent) having a
fiduciary duty to another, Merriam-Webster's
Dictionary of Law, 1996.
[10] These regulations were originally issued under Section 13 of the Welfare and Pension Plans Disclosure Act of 1958 (72 Statute 997, August 28, 1958), which was superseded by the Employee Retirement Income Security Act of 1974. The Department of Labor simply reissued its Regulations under Employee Retirement Income Security Act of 1974 Section 412.
[11] Small Business Efficiency Act of 2006, 109th Congress (March 16, 2006).
[12]
The New York Law Journal, Volume 230—NO. 12; Thursday, July 17, 2003.
[13] From a population of taxpayers filing 1,895,085 Employer’s QUARTERLY Federal Tax Returns (Form 941) containing indicators that this was the business’ final return, we identified 761 taxpayers that had filed a U.S. Corporation Income Tax Return (Form 1120) and reported net income and/or salary or wages greater than $1,000,000. (This amount was determined by the audit team as significant but represents no IRS tolerance.)
[14] Action codes are used to designate an action to be taken on a taxpayer account.
[15] The Data Center Warehouse is a Treasury Inspector General for Tax Administration repository of IRS data used for analysis.
[16] We used a statistically valid sample of 59 from a population of 761 in expectation of estimating the number of taxpayers in our population that had stopped filing their employment returns because they were possibly using a PEO. We used a 95 percent confidence level, an expected error rate of 20 percent, and a precision level of +10 percent.
[17] The entity module will provide name, address, and other entity information from the input of the Taxpayer Identification Number.
[18] We used a statistically valid sample of 64 from a population of 3,118 in expectation of estimating the number of PEOs in our population that were not fully compliant in paying employment taxes. We used a 95 percent confidence level, an expected error rate of 20 percent, and a precision level of +10 percent.
[19] The IRS computer system capable of retrieving or updating stored information; it works in conjunction with a taxpayer’s account records.