Q: If I am appointed as a manager for a single member LLC my spouse owns, am I considered an employee that needs a salary?
My wife and I are planning on creating a single member LLC in Massachusetts where she would be the sole member and would be managing day-to-day operations for the business. I would be helping manage the business operations, such as finance, bookkeeping, and administrative items such as managing a website. Do both her and I need to be listed as managers on the Certificate of Organization? If so, am I considered an employee for the single member LLC as a manager and do I need to be paid by the LLC?
No, you don't both need to listed as co-managers. Whether you are a co-manager or manger has little to no bearing on whether you are considered an employee. Employee status analysis is best done under IRS rules. You also don't need to be paid but being paid would bear on employee status.
For federal employment tax purposes, the usual common law rules are applicable to determine if a worker is an independent contractor or an employee. Under the common law, you must examine the relationship between the worker and the business. You should consider all evidence of the degree of control and independence in this relationship. The facts that provide this evidence fall into three categories – Behavioral Control, Financial Control, and Relationship of the Parties.
Behavioral Control covers facts that show if the business has a right to direct and control what work is accomplished and how the work is done, through instructions, training, or other means.
Financial Control covers facts that show if the business has a right to direct or control the financial and business aspects of the worker's job. This includes:
The extent to which the worker has unreimbursed business expenses
The extent of the worker's investment in the facilities or tools used in performing services
The extent to which the worker makes his or her services available to the relevant market
How the business pays the worker, and
The extent to which the worker can realize a profit or incur a loss
Relationship of the Parties covers facts that show the type of relationship the parties had. This includes:
Written contracts or oral agreements describing the relationship the parties intended to create
Whether the business provides the worker with employee-type benefits, such as insurance, a pension plan, vacation pay, or sick pay
The permanency of the relationship, and
The extent to which services performed by the worker are a key aspect of the regular business of the company
For more information, refer to Publication 15-A, Employer's Supplemental Tax Guide, Publication 1779, Independent Contractor or EmployeePDF and Independent Contractor (Self-Employed) or Employee? If you want the IRS to determine if a specific individual is an independent contractor or an employee, file Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding. For information on eligibility for a voluntary program to reclassify your workers as employees with partial relief from federal employment taxes, see Voluntary Classification Settlement Program (VCSP) Frequently Asked Questions.
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