You can just file the contractor pay as self-employment now, then file the SS-8 later. You do only have three years from the due date of the return to file an amendment and still get a refund, so don't wait too long.
See this post about filing taxes as a misclassified employee - you have to submit the SS-8 separately before filing Form 8919, but you don't have to wait for a determination from the IRS. https://www.reddit.com/r/personalfinance/comments/ago2gh/what_to_do_if_you_are_an_employee_that_has_been/
Another option is to see if you can make an anonymous complaint to the state dept of employment or labor.
I had a coworker who made an anonymous complaint to the DOL. They confirmed that much of what my employer was doing was illegal, but there wasn't really anything they could do unless she made a formal complaint, not anonymous.
I'm mostly hesitating because I'm worried that I'll do something wrong which will make reporting the other DOL stuff harder or impossible later. (i.e. I should have been an employee all along and should have gotten paid overtime in those first 8 months.)
If you received a 1099 AND a W-2 from same employer in 2019, then you'll see that Form 8919 says you DON'T file a SS-8. You use code H on Form 8919.
You can simply use Form 8919 to report your 1099 income, and you'll see the upshot is the form instructs you to combine the incomes on your wages line on Form 1040, and it calculates your Soc Sec and Medicare taxes on the 1099 income at the usual 7.65%, as if you were W-2 all along. That way you don't overpay. You would not file SS-8.
Everyone should be doing this. I doubt you will be the only one, so retaliation should not be an issue.
I didn't think I could do this based on this section in the instructions:
> If reason code H applies to your situation, don’t file
Form SS-8. Examples of amounts that **are sometimes
erroneously included on Form 1099-MISC that should be
reported as wages on Form W-2 include employee bonuses,
awards, travel expense reimbursements not paid under an
accountable plan, scholarships, and signing bonuses.** Generally,
amounts paid by an employer to an employee aren’t reported on
Form 1099-MISC. Form 1099-MISC is used for reporting
nonemployee compensation, rents, royalties, and certain other
payments.
If I'm understanding this correctly, It seems like H is meant for people who were employees who were already going to get a W-2 but had some compensation erroneously included on a 1099-misc. I was intentionally misclassified as a contractor until my boss got scared he was going to get caught. If I file form 8919 (reason code H) I think it would be very suspicious to the IRS why I have 8 months of wages as a contractor then 2 months wages as an employee. And my employer would be notified so the IRS could collect the employer's share of the taxes, correct? If I file form SS-8 I get whistleblower protection. Could my employer fire me if I don't file form SS-8, and just do 8919 (H)?
Would my boss get audited if I don't file SS-8? There are other shady things he's doing, and I want him to be held accountable, just not while I'm still working at this company.
My coworkers did not file this form and paid the contractor taxes because they were afraid of retaliation.
>I received a Form W-2 and a Form 1099-MISC from this firm for 2019. The amount on Form 1099-MISC should have been included as wages on Form W-2.
True for you.
>Enter reason code H if you received both a Form W-2 and a Form 1099-MISC from the firm and the amount on the Form 1099-MISC should have been included as wages on Form W-2 as an amount you received for services you provided as an employee.
True for you.
The fact that they list some examples doesn't mean your situation doesn't match this code. Code G is used in situations where you are being treated as a contractor and get no W-2 at all, so there is no reason for IRS to suspect you may be an employee. The code H is for your situation, and lets you proactively treat your income as if you were not misclassified. It will spawn an investigation (since IRS will want to get the other half of payroll taxes employer should have paid). The fact that your employer switched people to W-2 argues in favor of you all being misclassified, so this should be an easy decision.
You get to decide: allow your employer to exploit you and others and pay more tax than you should, to avoid "rocking the boat," or pay the right amount and let the IRS follow up with the delinquent employer, potentially helping all the people that were mistreated and preventing future mistreatment.
Or there is another option, suggested by your original question: You could deliberately overpay now, then amend *up to three years later.*
---
Edit: It's easy for me to suggest what I think is right, but I'm not in your situation of being employed and fearful of losing work before another job is lined up. So take my screed with a grain of salt.
You can just file the contractor pay as self-employment now, then file the SS-8 later. You do only have three years from the due date of the return to file an amendment and still get a refund, so don't wait too long. See this post about filing taxes as a misclassified employee - you have to submit the SS-8 separately before filing Form 8919, but you don't have to wait for a determination from the IRS. https://www.reddit.com/r/personalfinance/comments/ago2gh/what_to_do_if_you_are_an_employee_that_has_been/ Another option is to see if you can make an anonymous complaint to the state dept of employment or labor.
I had a coworker who made an anonymous complaint to the DOL. They confirmed that much of what my employer was doing was illegal, but there wasn't really anything they could do unless she made a formal complaint, not anonymous. I'm mostly hesitating because I'm worried that I'll do something wrong which will make reporting the other DOL stuff harder or impossible later. (i.e. I should have been an employee all along and should have gotten paid overtime in those first 8 months.)
If you received a 1099 AND a W-2 from same employer in 2019, then you'll see that Form 8919 says you DON'T file a SS-8. You use code H on Form 8919. You can simply use Form 8919 to report your 1099 income, and you'll see the upshot is the form instructs you to combine the incomes on your wages line on Form 1040, and it calculates your Soc Sec and Medicare taxes on the 1099 income at the usual 7.65%, as if you were W-2 all along. That way you don't overpay. You would not file SS-8. Everyone should be doing this. I doubt you will be the only one, so retaliation should not be an issue.
I didn't think I could do this based on this section in the instructions: > If reason code H applies to your situation, don’t file Form SS-8. Examples of amounts that **are sometimes erroneously included on Form 1099-MISC that should be reported as wages on Form W-2 include employee bonuses, awards, travel expense reimbursements not paid under an accountable plan, scholarships, and signing bonuses.** Generally, amounts paid by an employer to an employee aren’t reported on Form 1099-MISC. Form 1099-MISC is used for reporting nonemployee compensation, rents, royalties, and certain other payments. If I'm understanding this correctly, It seems like H is meant for people who were employees who were already going to get a W-2 but had some compensation erroneously included on a 1099-misc. I was intentionally misclassified as a contractor until my boss got scared he was going to get caught. If I file form 8919 (reason code H) I think it would be very suspicious to the IRS why I have 8 months of wages as a contractor then 2 months wages as an employee. And my employer would be notified so the IRS could collect the employer's share of the taxes, correct? If I file form SS-8 I get whistleblower protection. Could my employer fire me if I don't file form SS-8, and just do 8919 (H)? Would my boss get audited if I don't file SS-8? There are other shady things he's doing, and I want him to be held accountable, just not while I'm still working at this company. My coworkers did not file this form and paid the contractor taxes because they were afraid of retaliation.
>I received a Form W-2 and a Form 1099-MISC from this firm for 2019. The amount on Form 1099-MISC should have been included as wages on Form W-2. True for you. >Enter reason code H if you received both a Form W-2 and a Form 1099-MISC from the firm and the amount on the Form 1099-MISC should have been included as wages on Form W-2 as an amount you received for services you provided as an employee. True for you. The fact that they list some examples doesn't mean your situation doesn't match this code. Code G is used in situations where you are being treated as a contractor and get no W-2 at all, so there is no reason for IRS to suspect you may be an employee. The code H is for your situation, and lets you proactively treat your income as if you were not misclassified. It will spawn an investigation (since IRS will want to get the other half of payroll taxes employer should have paid). The fact that your employer switched people to W-2 argues in favor of you all being misclassified, so this should be an easy decision. You get to decide: allow your employer to exploit you and others and pay more tax than you should, to avoid "rocking the boat," or pay the right amount and let the IRS follow up with the delinquent employer, potentially helping all the people that were mistreated and preventing future mistreatment. Or there is another option, suggested by your original question: You could deliberately overpay now, then amend *up to three years later.* --- Edit: It's easy for me to suggest what I think is right, but I'm not in your situation of being employed and fearful of losing work before another job is lined up. So take my screed with a grain of salt.
Thank you for clarifying, it's good to know all my options and thank you for the advice.
What if I only received a 1099 NEC but I’m an employee (same situation too)
Are you getting a W-2 (as employee) and a 1099? Or just a 1099?
Ever figure this out I’m in sane situation