Independent contractor on TN and 1099 - Can NOT do!!! - and worse way to be hired in this case. -- Expert Income Tax help on cro



XXXXX XXXXX wrote:
Hello. A Canadian citizen, I started a 12-month position in the US two weeks ago as an independent contractor on 1099. I read on the web that, starting 2010, I will be taxed as a US citizen if I live here for more than 183 days. What tax form(s) do I need to submit to my recruiting firm, which pays me?



david ingram replies:

I will not bother you with all of the details. 

However, You can NOT be an independent contractor on a TN visa.  The rules for TN's are that you CAN NOT be self employed.  I started out with this opinion and was convinced that it was not improper to consider someone working one or two days a month as an independent contractor but I was still adamant that a full time employee had to be an employee and have tax Medicare and social security deducted.

Remember that if you are a single person working as an independent contractor in the US "YOU" are responsible for the Fed, state and both halves of the Social Security payment.

And do not feel bad about the Social Security,  Provided you make over $5,000 in two calendar years, you will qualify for a Social Security pension sometime in the future.

If you want to give the company accountants something to think about, the following is an excerpt from Gary Gauvin's article in a Legal journal./

"

As mentioned above at § 10.02 and according to INA regulations.[1] TN visa professionals may not be self-employed.  The regulations for INA § 216 specify that "a professional will be deemed to be self-employed if he or she will be rendering services to a corporation or entity of which the shareholder is the sole or controlling shareholder or owner". INS has, in the past, stated otherwise in a letter by saying that "the Canadian citizen would be eligible to apply for admission as a TN non immigrant no matter what his or her ownership is in the Canadian company" that provides services to a U.S. company.[2] The more recent guidance issued March 16, 2005 in USCIS Employer Information Bulletin 11 aligns their position with the regulations. It states that “under a TN classification, an alien is not permitted to come to the United States to engage in self-employment in the United States, nor to render services to a corporation or other entity in which he/she is a controlling owner or shareholder”. This is regardless of the how the individual contracts for services outside the U.S. which could be as self-employed or through a foreign owned corporation. Care should be taken in advising U.S. employers of their payroll withholding responsibilities for TN visa employees. They are  employees under the tax code and must be issued a W-2. Issuing a 1099-MISC (required to be given to independent contractors) and failing to withhold is not an option. Making payment to a foreign corporation for the employee’s services would still require that a W-2 be issued in the individuals name since the payments would constitute constructive receipt of wages.

 (Citation 2 refers to a letter that INS wrote to lawyer Grasmick many years ago. I read it and it was a 100% incorrect reading of the regulation. That of course led to all the mis-advice over the years. Neither bender or the other leading legal publication ever updated their guidance after the tri-country committee discussed the issue over 3-4 years and then issued the EB-11 bulletin in 2005. The old TC visa (pre TN) had no such restrictions).

 -------------------------------
Back to why you should be paid on a W2 rather than a 1099-Misc

I am going to assume that you earn a $100,000 US paycheque, are single and live in a rented apartment.

If you lived in California, your state tax would be     $  6,120
Your Federal tax would be                                      $17,000
Your Social Security (both halves) would be            $14,130 for a total of

                                                                               $37,250 of total tax.

If you lived in Manhattan, New York, your state e   $  8,454 - i.e the city of New York Tax is almost $3,000
Your Federal tax would be                                      $16,394 a little lower because of  higher state tax
Your Social Security (both halves) would be            $14,130 for a total of

                                                                               $38,978 of total tax.

If you lived in Texas, your state tax would be         $  0,000.  or Washington, Florida, Alaska or Nevada, etc.

Your Federal tax would be                                      $17,121 a little higher because no state tax as an itemized deduction
Your Social Security (both halves) would be            $14,130 for a total of

                                                                               $31,251 of total tax.


If you lived in North Carolina,  state tax would be    $  6,362
Your Federal tax would be                                      $16,939
Your Social Security (both halves) would be            $14,130 for a total of

                                                                               $37,421 of total tax.

In all the above scenarios, you are paying 1/2 of the $14,130 or $7,065 more than the employer would pay if you were an employee.


If you made the same amount today in BC, you tax would be:  BC -  $ 7,036.62

                                                                                Federal Tax      $17,474.85    

Self employment Tax (CPP) would only be                        CPP           4.237.20  For a total of
      
                                                                                                  $28,748.67

Alberta is lower, Ontario and Manitoba are more.  but you get the idea.

 And do not fall for the idea that as a 1099, you get to deduct all sorts of expenses.  If you are going to work at the employer's place of business every day and using their desk and their computers and working at their hours, etc., you are an employee without benefits who has to pay both sides of the FICA without any deductions for car or apartment rent, etc.

Hope this helps you.  If you have accepted a 1099 position, it is illegal and the next time you cross the border, the TN could be canceled if you do not have a pay stub with taxes deducted to show the Border person who welcomes you back to the USA.

 xxxxx xxxxx wrote:
Hello David,
 
I am Canadian citizen working in US on TN visa. I moved to US in Oct 2008, leaving behind my primary residence which I rented for few months and then sold during the Year 2009. I have Canadian RRSP account and checking accounts.
I work on W-2 and my employer deduct all my taxes. I had rental income from Canada and also had some dividend income of a corporation I owned. I worked in US for the full year 2009 and  rented apartment, bought a car and furniture etc, I have no immediate plans to return to Canada.

1. Which country will treat me as resident for tax purposes? It seems like US will treat me as resident as I lived here for more than 183 days and also had US income, home, Driver License etc. At the same time I had home and Bank accounts in Canada, but I believe there will be a rule for this scenario to determine my residency status.

2. Where should I file taxes first, US or Canada? What forms do I need to submit? Where should I report worldwide income? Where should I claim tax treaty benefit? I red this on your blog regarding a similar issue. You suggested to someone :  "Report all of your US income on the T1 and then deduct it all on line 256 of the return under Article IV of the US - Canada Income Tax Convention (treaty)." Does it apply in my case?

3. Do I need to declare any gain for the sale of my house in US return? I read that for the US, the house is tax free up to $250,000 of profit from the day you landed in the US.

Thanks much!!
 
xxxxx
-------------------------------------------------------
david ingram replies:

1.    You are clearly a taxable resident of the USA under Article IV of the US Canada Income Tax Treaty.  If your old home was rented to strangers, you did NOT  have a home available to you in Canada because it was rented.If you rented it to strangers but kept a basement room in it for your use, then it was available and you would be a factual resident of Canada but not taxable on your world income because of Article IV..

2.

2008

If you did not keep a place in your home but just rented it out, you should have filed a departing Canada return in 2008 up to the date you left with form T1161 listing your Assets including the house. 

You would then have filed a Forms T1159 and T776 under Section 216(4) of the tax act to report the rental income after you had left.

For the US, you would / should have filed a Dual Status statement 1040NR and a Dual Status 1040 Income Tax return with Schedule E and 4562 to report the rental income and your US wages.  Depending upon what state you were in, you would also be filing for that state.

The RRSP must be reported to the US IRS on form(s) 8891 (question 8 of Schedule B) and the RRSP and the bank accounts must be reported to the department of the Treasury on form(s) TDF 90-22.1 (Question 7 on Schedule B).  Failure to fill in Schedule B and or the TDF 90-22.1 if required can be fines of $10,000 to $500,000 plus up to 5 years in jail.

2009

Canada

Essentially the same thing except that you now have to deal with the sale of the home.  For Canadian purposes, the CRA will want to treat you as a departing Canadian in 2008 and tax you on any gain from the date you left till the date it was sold.

If you get away with being a factual or an actual resident, you can  treat and gain in that time tax free.  To be a legitimate resident, you might  report your US earnings to Canada and claim a  foreign tax credit for the Federal Taxes, FICA , Medicare and State tax you paid to the US.  For instance, the combination of those taxes for a single person in a rented apartment is higher in California than it is in BC, higher in New York than it is in Toronto and higher in Denver, Colorado than in Calgary or Edmonton.
.
US

You now file a straight 1040 and get to claim the standard deduction (you had to claim itemized deductions in 2008 for the Dual Status return)

The house is teated as a profit between the day you moved to the US and the day you sold it per Article 13(6) of the US Canada Income Tax Treaty .
The profit (if any should be put on Part II of Schedule D and removed as a taxable profit under a section 121 Exclusion

You will have to do a Schedule E up to the date of sale.

Hope this helps.

These others may give you some more knowledge

taxman@centa.com: Please see bottom of message if you wish to unsubscribe.
------------------------------------------




XX wrote:
Below is the result of your feedback form.  It was submitted by
XX on Sunday, February 21, 2010 at 12:10:15
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My_question_is: Both

question: I work in the USA on a TN VISA ( California) , but also attended University full time in Canada in 2009. I have a home in Vancouver ( which i visit on weekends only)  but maintain a rental in the USA. Can I claim my tuition and education against my US taxes ( I have no Canadian income to declare this year).

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david ingram replies:

No problem.  Convert the payments to US currency and claim away.

I have no problem with the concept - back in 1963, I attended the University of Manitoba and the University of Regina (Regina College then) at the same time and literally drove 350 miles back and forth.  A good friend spent 17 years teaching at the University of Ottawa and Harvard at the same time with homes in both cities.  And I have a client who does research at UCLA and UBC at the same time. 

However, it sounds like you are still a factual resident of Canada.  You should likely be filing a Canadian Factual Resident return where you report your income to Canada and then exempt it on line 256 under Article IV of the US Canada Income Tax Treaty or just claim the foreign tax credit and remain a resident for a while.

You also have to consider whether you have left Canada - If you have not left and it is just a temporary job in California and you are single, your California tax plus federal tax plus FICA (social Security) plus Medicare is MORE than the BC tax.

For instance, without deductions of any sort, if you are a single person in California earning $100,000.00, your California, Medicare, Federal and FICA taxes are About $33,225 US or about $34,900 Canadian at 1.05% exchange.

At the same time, your BC tax if you earned $105,000 Canadian would be $29,935 including CPP and EI.

Remember however, that you can use interest on your Canadian Mortgage and the property taxes on your Vancouver condo as a deduction on Schedule A in the US.  You need to decide which way you are going because if you depart Canada, you have to file form T1161 and your Canadian Condo becomes subject to Canadian Capital Gains Tax.

---------------------------
This older question might help a bit as well


xxxxx xxxx wrote:
Hi David,
 
I really admire your knowledge on tax matters. I have few questions regarding Canada US taxes. 
 
As a Canadian citizen I am working on TN visa in US. For the year 2009 I worked only in US. I had a Canadian home (primary residence in Canada) which I rented for 10 months in 2009 and finally sold it in December 09. I believe I will have to file my taxes in US as Resident alien and I will also have to file Taxes in Canada. 
 
1.  Do I have to declare Canadian home rental income in US?
 
2. Do I have to file declare net gain for the home sale as income for 2009 in US and Canada? This was my primary residence and I believe net gain on primary residence is exempted for income tax purposes??? Also the home was purchased in 2006 while I was living in Canada. I moved to US in Nov 2008.
 
3. Can I claim tax benefits for mortgage interest  and property taxes in US?
 
4. I also incurred some mortgage penalties, legal  and disbursement fees on home sale. Do I have to declare it in US?
 
5. I paid Canadian university tuition fees and IT certification fees in 2009. Do I have to file it in both countries?
 
How much would it cost to file these taxes with you? Can I do it over fax and e-mail?
 
I would really appreciate your response. 
 
 
Thanks,
 
XXXX XXXXX
-------------------------------------
david ingram replies:

1.   Yes - as a resident of the US, you are required to report your world income from any country and from any source.

2.   The answer is yes and no.  If you are planning on reporting your income from the US on your Canadian return, then you are entitled to any profit tax free from the sale of your house on the Canadian Return.

If you decide to be a non-resident of Canada, then there would be a little tax to pay on any increase in value from the day you emigrated to the USA from Canada until the day you sold it.  .

3.   Yes, you can claim the mortgage interest and taxes on the US return but as a deduction on schedule E against the rental income received, not on schedule A because the property was rented.

4.    Of course, you also get to deduct real estate commissions and other costs of sale and there is a good chance that you did not make a profit. 

For the US, the house is tax free up to $250,000 of profit from the day you landed in the US.  That is, the house is valued for US purposes at its value the day you crossed the border under Art XIII of the US Canada Income Tax convention.

5. The Canadian University Tuition is a deduction or credit in both countries if you need it.

Our cost would be from $1,200 to $1,800 depending upon what state you are in and what you decide your residency is.

Our usual charge for a cross border return in the year of moving is $1,200 plus $300 for a rental and $300 for the sale of a rental.

In addition, it is REALLY important that you get your Canadian return in on time.  Failure to file the return on time along with form T1161 is a minimum penalty of $100 and a maximum of $2,500 at $25.00 a day.  Three months and ten days more and you have a $2,500 fine even if you have a refund coming.


 
XXXXXXX XXXXXXX wrote:
Hello,
 
I am trying to figure out what to do for my 2008 Canadian taxes. 
 
My husband and I are Canadian citizens living in the US since November 2007. We own a home in the US, have US driver's licenses, US healthcare, and have paid taxes as a resident (1040) as we have been here for over 183 days in the 2008 tax year.

I'm confused as to what I have to do for Canadian 2008 taxes. We own a home in Canada (no one lives there, we simply pay for the mortgage) and have sold it effective June 2009. My US income has never left the US. I have never bothered to cancel AB healthcare as it was free this year (but my son does not have it) but I believe it is not longer valid as I have not resided in Canada this past year.   I received the 100/month child tax benefits and was on EI Mat leave for 6 mos of the 2008 year but can cancel and pay back the money for child tax benefits if required. I realize I have to file Canadian income tax for 2008 (EI-mat leave and child tax benefits) for myself. My US earned income has never left the US, so I am not sure what I have to use as an exchange rate or if I even need to include it since I haven't lived in Canada? My husband's US income has never left the US either.

Is it mandatory to include my US income under the TN-1 visa job?

I have a US tax bill and now if I do include it, it appears the Canadian gov't wants another 15% on top of what I've already paid in the US.

I'm hoping I'm missing something and just have to declare my CAD income, but don't want to do anything illegal.

Any advise would be greatly appreciated!  I am willing to pay for a consultation fee in order to clear up this confusion as well.
 
Thank you!
XXXXXXX XXXXXXX
-----------------------------------------------------------------------
david ingram replies:

You are taxable on your mat leave and should not have received the child tax benefit.  When you left Canada, you and your husband should have reported a departing date on page one of the T1 return and filed form T1161 and maybe T1243 and T1244 as well.  This would have listed your house and any investments for the purpose of the departure.

If the house has just been sold, you will have to file Forms T32062 and T2062A and T2091 for the sale.  Failure to file the T1161 has already garnered a penalty of $2,500 plus interest each if the CRA wants to enforce it.

Failure to file the T2062 within ten days of your sale in June will also engender a $25 a day fine (min $100) to a maximum of $2,500 for being 100 or more days late.

By keeping your AB Medical and the empty house and collecting the Child Tax Benefit, you have done some of the things that give the Canadian Government the right to tax you.

Pay back the Child Tax Benefit as soon as possible.  File 'your' Canadian tax return and report the US income on the return. (Fill in schedule A and Schedule B to report your world income).  Exempt the US earned income on line 256 of the return under Article IV of the US Canada Income Tax  Treaty.

You also had to report the Maternity leave on your US 1040.

This older question will likely help.

 
QUESTION:

I started working in the states last April for about 8 months with a TN visa. I was wondering if I have to pay taxes on income earned in the states to Canada as well?


------------------------------------------
david ingram replies:

You should file a departing Canada Income tax return with form T1161 and maybe a 1243 and 1244 if you have left any assets behind.

These older questions will help a bit


 
xxxxx wrote:
hello
i am a single Canadian working full-time in Texas  for a us employer
i have been in the us since Jan 2, 2007 on a tn visa.
i currently have a W2 and also have slips for rsp contributions
from Canada for 2007.

what would be the cost for filing my tax returns to both countries?
also do you recommend contributing to IRA roth's instead of rsp's
when i am working in the us?

thank you
xxxxx
-------------------------------------------------
david ingram replies:

As described, you have no tax to pay to Canada and should not have bought an RRSP for 2007.

Basically, you should be filing a departing Canada return and look at T1161 to see if it is necessary to file it -  Usually, you would file it is you own a summer cottage, home, non-RRSP mutual fund or brokerage account or are leaving a share of a family business or farm behind.

For the US, you would file a US1040.  there is no tax return in Texas, Nevada, Alaska, Florida for you to file.

If your intention is to come back to Canada, you should likely NOT buy a ROTH.  If you want a tax deduction buy a conventional IRA or participate larger in a company 401(K)

We charge $900 to $3000 for US Canada tax returns

There is a more detailed list further down below.



I am Canadian citizen and have been working in USA on TN-Visa since 2004. I have a valid Canadian driver license, no medical card, working bank account and has no property. All my family is staying with me in USA.

1) Am I suppose to file a Canadian taxes every year.

2) If I do, what would be the roughly tax break up like 20% paying in Canada and 80% in USA.

3) What would be your fee to file Canadian and USA taxes.

Thanks & regards.

----------------------------------------------------
david ingram replies:

You should have filed a departing Canada return in 2004.  there is no need to file a 2005, 2006, or 2007 return as you have described your situation.

If, on the other hand, the Canadian government asks you for a return for any of those years, you, as a Canadian citizen, are required to file.  Report all of your US income on the T1 and then deduct it all on line 256 of the return under Article IV of the US - Canada Income Tax Convention (treaty).

This older question and answer may help

----
I moved to Nevada for a job July 2006, and still work there now.  Do I do my
taxes in Canada and us separately? My earnings for 2006 in Canada were very
low.
_______________________________________________
david ingram replies:

You have more than one choice.

1.   a) You file a departing Canada tax return including form T1161 and 1243 and 1244 if you left more than $25,000 worth of assets behind.
   
        b)
You file a 1040NR Dual Status Statement for the US and then a 1040 Dual Status Return to report the US income only.  The statement is there to separate out any US income you may have received BEFORE you actually went to the US. You can NOT claim the standard deduction on a Dual Status Return You can only use itemized deductions on a Dual Status Return. 

2.   a)   You file Canada as in 1a) above.

       b)   You file a 1040 tax return reporting your world income for the year including the Canadian income.  Then you file US form 1116 to claim a foreign tax credit for the tax, CPP and EI you paid to Canada.  This allows you to claim the standard deduction on the US return.

Good luck.  Remember that you can always send the returns here by fax, courier snail mail or pdf email.
--------------

QUESTION:

Dear experts:
I am currently holding a TN visa working for a US employer. I have my family ties to Canada but I reside in the States for more than 183 days/year. Should I file as US resident or Canadian resident for the Tax purpose? In each case, what kind of tax forms or schedules I have to look at?
Thanks
_____________________________________________________________________________
david ingram replies

If you are applying for an H1B visa and intend to get a green card and your family is not moving unitl the resident alien cards come through, you should be filing as a US resident and not paying tax in Canada.  If you have a house, it should be put in your wife's name only.  You would file a US joint return with your wife and claim your children as dependents.

If you are not intending to stay in the US and are still spending a lot of time in Canada, you would file as a Canadian resident and claim a foreign tax credit for the taxes, FICA and Medicare taxes you pay to the US after filing your US 1040.

There is an in between position where you might be a factual resident of Canada where you report your US income to Canada but deduct it then on line 256 under Article IV of the US Canada Income Tax Convention. In this case you would be a tax resident of the US and file a joint US return with your wife.

You need to sit down in person or by phone with someone who really understands it.
------------------------


 
If your question was not answered fully or you wish to go further, I am available for individual consultations by phone or email or in person for $450 per professional hour. 

Please also note that we prepare Canadian, US, Australian, UK and New Zealand returns on a mail in, email, fax, snail mail or couriered basis. At any time, our clients are in 40 countries or more.  They have every occupation from nuclear Submarine captains to FedEx pilots to Major Bank officers to Politicians, Diplomats and border patrol officers.  My favourite, however, is a penguin catcher in Antarctica among others there..

If you 'really' only have a single question requiring a 'couple' of minutes, you can try phoning me for free as part of the following.

- For a quick free question

Most Wednesday evenings, from 6 to 9 PM Vancouver (Pacific - LA, Seattle) time, I interview others and answer short US Canada, Great Britain, Spain, Indonesia,  Mexico, etc.  tax and immigration questions.  GOTO www.david-ingram.com - the North American phone number is (866) 980-0499 - the local number in the lower mainland is (604) 980-0321.


OR

You might try calling Fred Snyder's own radio program for an answer. 

Fred Snyder's  "IT'S YOUR MONEY" radio show. on CISL,  650 AM on the dial in Vancouver from 9 to 11:00 AM every Sunday  (604) 280-0650 or (877) 280-0650 - You can listen live from anywhere in the world at www.am650radio.com from anywhere in the world. click on the button in the top left hand corner.
-
-
You might try calling Fred Snyder's weekly radio programs for an answer. 

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Disclaimer:  This question has been answered without detailed information or consultation and is to be regarded only as general comment.   Nothing in this message is or should be construed as advice in any particular circumstances. No contract exists between the reader and the author and any and all non-contractual duties are expressly denied. All readers should obtain formal advice from a competent and appropriately qualified legal practitioner or tax specialist for expert help, assistance, preparation, or consultation  in connection with personal or business affairs such as at www.centa.com or www.garygauvin.com.  If you forward this message, this disclaimer must be included."

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