1099 vs W2 audits and anti-kickback

[sunnydoc]

I have the opportunity to choose between a 1099 and W2. No benefits but everything else about the job seems to works like an employment (get on their insurance panels, use their EMR, billing goes through them, full time work 9-5 and M-F, regular set hours by company, guaranteed base salary, and production bonus, etc). I intentionally chose this group over many others for multiple reasons, knowing I would have to pay for health insurance, malpractice, and so on.

Question is this: is it safe to do a 1099 in this arrangement? I already have an LLC and may consider an S-corp if required. I also have a side gig elsewhere getting a 1099 doing locums for the last couple years, and will get my own malpractice (I already have my own disability and life insurance), and may consider setting up my own solo 401k.

My understanding is 2 issues MAY arise:

1. anti-kick back statute - under 1099 independent contracts, you cannot give a % production of collections as it violates the law? But under W2 employment it allows for that because of the safe-harbor?

2. IRS audits - possible concerns for tax audits and fines with 1099 if job looks more like an employment?

 

Appreciate any advice and input!

 

[jfoxcpacfp]

sunnydoc wrote:

I have the opportunity to choose between a 1099 and W2.

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Highly irregular for you to get to choose. The group's CPA should be working with them to determine if the work meets the qualifications for IC or employee status.

sunnydoc wrote:

2. IRS audits – possible concerns for tax audits and fines with 1099 if job looks more like an employment?

Click to expand...

The employer bears the huge responsibility of the likelihood of audit, which is very minimal. If they were to be audited, however, and were found to be in violation of the law, it would trickle down to you and could get quite messy, particularly with retirement plans.

[pulmdoc]

The setup you describe (hours set by employer, guaranteed salary) sounds like you are an employee, not an independent contractor. Any "you can choose" offer by an employer would necessarily be for two different positions because FSLA defines employment based on the nature of the position, not what the employee asks to be called.