Beware: It’s Risky to Misclassify an Overseas Consultant

Substantial Risks Exist for Misclassifying an Overseas Consultant as an Independent Contractor

Part of a series on issues related to Manufacturers, Distributors and International Trade

With both the IRS and the Department of Labor targeting the misclassification of U.S. employees as independent contractors, many companies are re-examining their worker classifications. While most U.S. companies are aware of the costly consequences of such misclassification, they may not be cognizant of the considerable dangers of misclassifying foreign workers as independent contractors.

Frequently, U.S. companies choose to engage local representatives in their overseas markets as independent contractors rather than employees in order to avoid compliance with foreign employment laws, withholding tax requirements and social welfare/insurance contributions. In many countries, these obligations may be considerably more onerous than they are in the United States.

However, the consequences of misclassifying a foreign worker as an independent contractor are frequently more costly as well.

For example, in Germany an employer is obligated to remit social security type payments for its employees that are equal to about twenty percent of the employee’s compensation to German social welfare and insurance agencies. The employer is also required to withhold from the employee’s compensation the employee’s social security obligations which are also equal to about twenty percent of his/her compensation.

If an employer fails to withhold the requisite amount from the employee’s wages, the employer becomes liable for the employee’s social security obligations. The employer many not seek reimbursement for this amount from the employee, regardless of any contractual agreement that provides for such reimbursement. The look back period for collection of these social security payments is thirty years in some cases.

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Misclassification of Workers as Independent Contractors: How to Take Advantage of IRS’s New Voluntary Classification Settlement Program

Both the IRS and the Department of Labor have indicated their intent to target misclassification of workers as independent contractors rather than employees. In the proposed budget for fiscal year 2012, $240 million is allocated for initiatives specifically related to enforcing this misclassification.

Employers who have misclassified workers in the past may want to consider taking part in a new program that will allow them to voluntarily correct their misclassification of workers at a relatively low cost. As part of its “fresh start initiative”, the IRS recently announced a new Voluntarily Classification Settlement Program (VCSP).

Under this program, eligible employers will only pay an amount that equals just over one percent of the wages paid to the misclassified workers in the past year, if they prospectively treat these workers as employees. The IRS will not audit employers on payroll taxes related to these workers for past years, and employers will not be subject to interest or penalties for past misclassifications.

In order to be eligible for the program the employer must:

1. consistently have treated the workers in the past as non-employees,
2. have filed all required Forms 1099 for the workers for the previous three years, and
3. not currently be under audit by the IRS, the Department of Labor, or a state agency concerning the classification of these workers.

To apply for the program, an employer must file Form 8952, Application for Voluntary Classification Settlement Program, at least 60 days before it wants to commence treating the workers as employees.

Employers participating in the program will be subject to a six-year statute of limitations for the first three years under the program, rather than the three-year statute of limitations that generally applies to payroll taxes.

Information about the VCSP is contained in IRS Announcement 2011-64.

Posted by Attorney Marcia S. Orgill. Orgill concentrates her practice in the area of business and personal taxation—especially complex domestic and international tax strategies.

The IC-DISC: An Underutilized Tax Savings Provision

Part of a series on issues related to Manufacturers, Distributors and International Trade

There is an increasingly wide divide between Democrats and Republicans on a multitude of issues. However, both parties agree that exports are a key to economic growth.

Last year, President Obama announced his goal to double U.S. exports by 2015, and Republican leaders indicated their desire to work with the President to expand trade to key allies. To encourage exports, the President issued a National Export Initiative that focuses on helping small to mid-sized U.S. businesses export their products and services.

The extension of the qualified dividend rates through 2012 also provides U.S. exporters with the opportunity to save taxes by establishing an Interest-Charge Domestic International Sales Corporation (IC-DISC).

Yet many export companies that could benefit from the tax savings of an IC-DISC fail to do so. According to some estimates, only about 6,000 businesses–a small portion of those that qualify—take advantage of the tax savings of an IC-DISC.

Capitalizing on these tax savings could give Missouri export companies a leg up on their competition. A key to increasing profitability is working smarter not just harder. Less taxes means more money that can be injected into the business to fuel growth and increase profitability.

Candidates for an IC-DISC

Privately held C-Corporations and pass through entities, such as S-Corporations, partnerships and LLCs, that could benefit from the tax savings of an IC-DISC include:

• Manufacturers and distributors of U.S. manufactured products with more than 50% U.S. content and a destination outside of the U.S.,
• Architectural and engineering firms with projects outside of the U.S.,
• Software developers of computer software that is licensed for reproduction outside of the U.S.,
• Agricultural and mineral producers that export products outside the United States, and
• Lessors of new or used U.S. made products to third parties for use outside of the U.S.

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With U.S. Exports on the Rise, Distributor Terms Increase in Complexity: Some Things to Watch For

Part of a series on issues related to Manufacturers, Distributors and International Trade

Recent figures released by the U.S. Bureau of Economic Analysis show there was a 17% increase in U.S. exports of goods and services during the first ten months of 2010.

In an effort to increase their profitability and growth, many U.S. businesses are taking advantage of the export initiatives launched by the U.S. administration to achieve its goal to double U.S. exports by 2014—a goal that President Obama announced last year and reiterated in his State of the Union address last month.

There are numerous options for U.S. businesses to structure the export of their goods and services internationally.  One of them is the appointment of international distributors to market and sell their products.

 An essential ingredient for the successful distribution of U.S. products internationally is a well formulated distributor agreement that takes into account the laws of the country or region where the products are distributed.  Surprisingly, many businesses skip this step when appointing distributors to represent their products overseas.

 Some U.S. businesses choose to operate under oral agreements with their international distributors, mistakenly believing that termination of the distributor will be easier if the relationship does not work out or that they will not be subject to a foreign judgment. Other businesses, when entering into an international distributor agreement, use a standard distributor agreement that was written for their U.S. distributors. However, when establishing an international distributor agreement, U.S. businesses should be aware of foreign legislation that may protect distributors, competition laws of a country or region that may void standard distributor agreement provisions, and other foreign law and cross-border challenges.

 Below are a few of the key considerations and issues that apply to international distributor agreements.

Competition Laws and Regulations

U.S. businesses exporting their products overseas frequently want to limit an exclusive foreign distributor of their products from selling competing products.

 In drafting a provision restricting such competition, it is critical to establish whether and to what extent the laws of the country where the goods are being distributed limit or prevent such a restriction. For example, in the European Union, this type of non-competition clause violates European Commission (EC) competition laws and is void from the outset if the restriction from selling competing products is for an indefinite period or exceeds five years. A non-competition obligation that is tacitly renewable beyond a period of five years is considered of indefinite duration.

 Additionally, certain territorial restrictions contained in a distributor agreement that prevent a distributor from selling a supplier’s products outside of a territory may invalidate the entire agreement, if the restriction is not limited to active sales into territories appointed to other distributors or the territory reserved to the supplier. For example, EC regulations control the ability of a supplier to restrict a distributor from making passives sales of its goods to customers outside a distributor’s appointed territory.

Choice of Law

Some countries have mandatory provisions of law that govern distribution agreements.

 If a choice of law clause in a distribution agreement states that U.S. law (or a particular U.S. state’s law) exclusively applies to the agreement, a U.S. jurisdiction clause in the agreement may not be respected if an action is brought by the distributor in the foreign country where the product was distributed. In order to avoid this unwanted consequence, a better alternative is to draft the choice of law clause to state that U.S. law exclusively governs the agreement, except with respect to any issue involving application of such mandatory foreign law.

Termination Compensation

Some countries have protective legislation or principles established through case law that may make termination of the distributor relationship difficult and costly if the agreement is not structured properly.

 Upon termination or expiration of an exclusive distributor agreement, it is not uncommon for distributors outside of North America to make a claim for termination or goodwill compensation. The requirements for termination or goodwill compensation are country specific, as is the ability to contract out of this type of compensation through choice of law and other contract provisions.

Fixed Term Agreements

In most cases, agreements of fixed duration terminate automatically at the end of the period specified in the agreement. However, some countries have laws that protect distributors, and unless the agreement has been terminated with a requisite period of notice before the expiration of the agreed contract term, the agreement is automatically renewed. 

 Under Belgian law, this requisite period of notice is between three and six months. Additionally, Belgian distributor legislation provides that an agreement that is renewed more than twice becomes a contract of indefinite duration. A distributor agreement of indefinite duration may only be terminated with reasonable notice or payment of an indemnity in lieu of notice.  What constitutes reasonable notice may not be determined by the parties in the distributor agreement, but must be agreed upon by the parties after the agreement is terminated.

These are a few of the additional considerations for U.S. businesses seeking to export their goods through international distributors. One-size-fits-all distributor agreements simply won’t work.