The SS-8 program issues determination letters to firms and workers on the proper classification of a worker for purposes of federal employment taxes and income tax withholding. An SS-8 technician applies the law to the facts and circumstances submitted with Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding, to determine whether the worker is performing services as an employee or independent contractor. See IRM 4.23.3.3.3, SS-8 Program, for more information. Determination letters are binding on the Service based on the facts presented. Once a determination letter is issued, it may be modified or revoked for various reasons. Additionally, the SS-8 program may issue an information letter when the taxpayer's request for a determination letter is not in the best interests of tax administration. The information letter is advisory only and has no binding effect on the Service. The SS-8 program may also issue an information letter instead of a determination letter in circumstances that meet certain criteria to assist a worker in meeting personal tax filing requirements. The conclusion in an information letter is not binding on the Service.

The SS-8 program handles all requests, other than requests involving federal agencies, state or local governments, or interstate instrumentalities submitted on Form SS-8 for the entire United States and its Possessions. The rules for determining worker status in the U.S. Possessions are the same rules for determining worker status in the United States. Determination requests for federal agencies are handled by the Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes) in Washington, D.C., and are not part of this manual section. See IRM 4.23.2.2, Coordination Between the Operating Divisions, for more information. Determination requests involving state or local governments or interstate instrumentalities are referred to the State Social Security Administrator. See IRM 7.50.1.5.7, Cases Involving State or Local Governments Overview.

All SS-8 requests are processed by the Exam Field Support Operation located at the Brookhaven Campus.

SS-8 program determinations may affect Wage and Investment Division (W&I), SB/SE, Large Business and International Division (LB&I), and Tax Exempt and Government Entities Division (TE/GE) taxpayers.

SS-8 determinations relate to IRC Title 26 Subtitle C-Employment Taxes, and include taxes under Chapter 21, Federal Insurance Contributions Act (FICA), Chapter 22, Railroad Retirement Tax Act (RRTA), Chapter 23, Federal Unemployment Tax Act (FUTA), and Chapter 24, Federal Income Tax Withholding.

The first annual revenue procedure published each calendar year provides procedures for issuing rulings, determination letters, and information letters. For example, see Rev. Proc. 2023-1 for more information.

The SS-8 program is under the jurisdiction of the SB/SE Division.

The Director, Exam - Field and Campus Policy, reports to the Director, Headquarters Examination, and is responsible for the delivery of policy and guidance that impacts the field and campus processes. See IRM 1.1.16.5.5.1, Examination Field and Campus Policy, for additional information.

Operations fall under the responsibility of the Director, Campus Examination/AUR, with the Director, Exam - Field and Campus Policy providing oversight to the SS-8 processing IRM.

Employment Tax Policy, under the Director, Specialty Examination Policy, has a role in providing guidance and direction on the interpretation and application of employment tax laws and processes, when necessary.

SS-8 technicians working in the Brookhaven campus are responsible for compliance activities related to requests for determinations of worker status filed on Form SS-8, as described in this IRM.

Management officials supervise the SS-8 technicians to ensure timely processing of Form SS-8 requests and accurate determinations of worker status.

See Exhibit 7.50.1-6, Form SS-8 Case Results, for a list of terms used in this IRM section.

The following table lists commonly used acronyms in the SS-8 program and their definitions:

The following table lists additional IRM sources of guidance related to Form SS-8 Worker Classification:

SS-8 Technicians, Reviewers and Managers can find helpful information on these websites:

The first read screening process allows SS-8 staff to quickly and effectively return documents to the originator, when information is incomplete on Form SS-8, or sent to the SS-8 program in error.

SS-8 staff will complete the first read screening process within five business days of the date the form was received in the SS-8 unit.

The SS-8 staff screens new Form SS-8 receipts to ensure the documents are complete, accurate, and meet the SS-8 program criteria. The SS-8 staff sorts the Form SS-8 receipts into one of the following categories:

Processable: Processable Form SS-8 receipts are accurate, complete, and meet the SS-8 program criteria. Be aware of the following situations:

Rejected to Requester for Incomplete Information.Form SS-8 receipts are returned to the requester when the Forms SS-8 are incomplete because they do not meet one or more of the following SS-8 program criteria:

Rejected to the Requester for Cause.Form SS-8 receipts are also returned to the requester when the Forms SS-8 state the following:

SS-8 technicians will screen Forms SS-8 within two business days from the day the clerical staff refers them, and return them to the clerical staff with a decision whether to accept or reject the SS-8 request. This decision should be entered on the SS-8 e-Trak database activity log.

When a Form SS-8 is resubmitted and does not include the requested information, SS-8 technicians will use their discretion to determine if a phone call is needed or if Letter 4949-A, SS-8 Return - 15 Day, should be sent. When a call is made, the technician will explain what is needed or explain why a determination cannot be made. The technician will document actions taken in the SS-8 e-Trak activity log.

The clerical staff will refer to the table below to take the appropriate actions on the new Form SS-8 receipts based on each category.

SS-8 staff receives incoming correspondence by physical mail, EEFax, the Document Upload Tool (DUT), and referrals from other areas. See IRM 7.50.1.3.2.1, Document Upload Tool for SS-8, for information about the DUT.

Incoming correspondence may come from various sources. Examples include:

The SS-8 clerical staff will scan the response into e-Trak and screen the incoming correspondence and take appropriate actions based on the table below within five business days.

The SS-8 clerical staff will identify incoming receipts that are internally or externally misrouted to the SS-8 program. When these receipts are identified as misrouted mail, the clerk will take the following actions:

The SS-8 clerical staff will take the following actions to verify the accepted Form SS-8 case data, and will enter the information into the SS-8 e-Trak database.

The SS-8 clerical staff will place the accepted Form SS-8 and related case documents in a folder color coded by the month that corresponds to the Form SS-8 received date. The assigned colors are shown in the table below.

The SS-8 clerk will prepare the case folder as follows:

The SS-8 clerk will attach a physical clerical activity record to the inside left of the folder. This document includes prompts for actions including, but not limited to:

The SS-8 clerk will print only the Form SS-8, and documents/correspondence received from the worker or firm for the physical folder. SS-8 e-Trak will maintain the total file electronically.

Physical case files for the current calendar year plus one prior calendar year will be maintained in Brookhaven until archived to the Federal Records Center. The local Information Resource Coordinator is responsible for taking necessary steps to retire records as per IRM 1.15.4, Retiring and Requesting Records. See Records Management Business Unit Liaison to determine the local Information Resource Coordinator.

Overview: SS-8 program used the database called SS-8 Integrated Case Processing (SS8ICP) to process cases until September 29, 2017. Migration to the new database (SS-8 e-Trak) was accomplished the first quarter of fiscal year 2018. SS8ICP was officially retired in December 2017. Case information on cases closed during the transition period may be on either database, so check both databases. Cases closed on the SS8ICP database in the five years prior to retirement of the database are on a spread sheet located on a common drive. The link to that shared common drive is SS8ICP Common Drive.

The common drive contains the following four documents:

For additional information on flags and status codes see Exhibit 7.50.1-3, SS8ICP Status Codes, Exhibit 7.50.1-4, SS-8 Case Flags for SS8ICP Database Used Prior to October 1, 2014, and Exhibit 7.50.1-5, SS-8 Case Flags for SS8ICP Database for Cases Started Between October 1, 2014 and September 29, 2017.

Store: Folders in the Store have a unique naming convention that is based on the case number. Case numbers were five digits and later expanded to six. The naming convention in the Store folder is based on the first three (for five digit case) or four (for six digit case) numbers assigned to the case. The last digit is the file name for the final folder. To locate a specific case, first select the appropriate sub-folder within the Store folder based on the first three or four digits, depending on whether the case number is five or six digits.

Activity Record Info: In the drive there are two Activity Record listing spreadsheets. These are extremely large, read-only files. Each spreadsheet is individually identified by the case numbers it contains. One spreadsheet contains case file numbers 56 through 80866; the other spreadsheet contains case file numbers 80866 through 134634.

Final 5 Years Closed Cases 20130101-20171001: This file is a comprehensive spreadsheet of closed legacy ICP cases which lists all "Cases closed in the last 5 years." Data elements include the TINs and addresses of both parties involved in the case.

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A Form SS-8 case is considered to be a related case when:

SS-8 staff will review IDRS to identify if freeze codes are present on the worker or the firm account. A freeze code may indicate there is an open audit, the case is in Appeals, or there is Criminal Investigation (CI) involvement in the case. Relevant freeze codes are as follows:

The SS-8 technician will contact the appropriate area to determine whether the worker classification issue is being addressed. Contacts can be found by using the contact link on SERP at Welcome to SERP, SERP WHO/WHERE TAB.

If an open audit, Appeals, or Criminal Investigation involvement exists, the SS-8 technician will refer to table below to process the case.

If the issue is not worker classification, the SS-8 technician should process the case using the appropriate guidelines.

When a firm issues a worker a Form 1099-MISC or Form 1099-NEC (Independent Contractor) and a Form W-2 (Employee), the SS-8 technician must review the case to determine whether:

In general, the common-law rules for determining worker status, as described in IRM 4.23.5.7, Common Law Standard, apply on the same basis to employees of state and local governments and their instrumentalities, as they do to private-sector employees.

Common-law analysis does not apply in two situations:

Workers for state or local governments and for interstate instrumentalities may be covered by a Section 218 Agreement. A Section 218 Agreement is a written, voluntary agreement between the State Social Security Administrator and the Social Security Administration. All 50 states, Puerto Rico, the Virgin Islands, and approximately 60 interstate instrumentalities have Section 218 Agreements extending social security coverage to specified workers. Only the Social Security Administration can determine whether a worker’s position is covered by a Section 218 Agreement. The determination that a position is covered by a Section 218 Agreement establishes that a worker in that position is subject to social security and Medicare.

A determination that a worker is an employee does not conclusively indicate the applicability of social security or Medicare coverage for that individual. Whether a state or local government employee is subject to social security and Medicare tax depends on which of the following three categories the employee falls into:

The SS-8 determination only addresses whether the individual worker is an employee, either by applying common-law rules or based on a statute specific to the work category. As applicable, the SS-8 determination of whether an individual is a common-law employee is made without regard to which of the above categories would apply to the worker.

When making Section 218 coverage determinations, Social Security Administration considers both the applicability of a Section 218 Agreement to the worker’s position and the common law with respect to the worker's employment status. In order to make such determinations, full factual development is necessary, which may be through the conduct of an IRS employment tax audit.

Because only Social Security Administration can make a Section 218 coverage determination, which generally includes a determination of worker classification, SS-8 cannot make a worker classification decision on a state or local government worker.

SS-8 will advise the requestor to contact their local State Social Security Administrator with any questions regarding their proper employment status.

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If the ITG/TEB Technical Group 2 Manager advises the SS-8 technician that it will remain involved, the SS-8 technician will process the case, and ITG will provide a general management function to oversee the case. ITG/TEB will not provide a review function, i.e., it will not review an SS-8 determination letter for its concurrence.

See IRM 7.50.1.8.5, Referrals, for referrals to ITG/TEB.

Overview: Requests for worker classification can be made by individuals who are US citizens working for foreign companies, governments, or charities. The work can be completed in the U.S. or in another country. Tax for some countries are addressed in treaties negotiated with that country. The U.S. does not have treaties with all countries.

No Rule: Send the taxpayer a letter with the language in Exhibit 7.50.1-24, Letter Language when Processing Cases with International Firm:

Performing Arts or Athletes: Artists or athletes who perform in this country but reside in another country often have U.S. representatives who help the artist secure agreements, set contracts, and set tour schedules. One of the agreements is negotiated with the IRS on how and when withholding will be collected. This is called a Central Withholding Agreement (CWA). This is completed by working with the CWP office. All requests for worker classification involving performing artists or athletes will be referred to the CWP office. The CWP office will advise on how to handle the request.

Foreign Charity - Work performed in other countries:

U.S. Based Charity - Work performed in other countries:

Foreign Entities with U.S. Base (Secure EIN): Issue a determination, information, or no rule letter after following procedures in IRM 7.50.1.5, Second Screening Process.

Form SS-8 requests may include situations involving three party arrangements. Generally, a three party arrangement exists when a worker performs services for one firm, but is paid for those services by another firm. The two firms may or may not be related.

Three party arrangements often present unique factual questions that affect the employment tax liability of the firms as follows:

In a three party arrangement, an SS-8 determination that Firm A is the common law employer of the worker, without a further determination regarding whether Firm B has control of the payment of wages, infers that Firm A is liable for employment taxes, which may not be the correct employment tax liability result.

The determination of whether a firm is in control of the payment of wages is a legal conclusion that is beyond the scope of the SS-8 program.

A case where a worker is performing services for a firm but receives payment from another firm constitutes a three party arrangement subject to the procedures described in IRM 7.50.1.5.10.1, General Procedures for Handling SS-8 Requests with Three Party Arrangements.

Form SS-8 requests should be carefully reviewed to determine whether the request involves a three party arrangement.

There are arrangements below where a worker performs services for a firm, but receives payment from another firm that constitutes three party arrangements:

In general, statutory non-employees are workers in three occupations that are not treated as employees for FICA, FUTA, or federal income tax withholding purposes provided they meet certain qualifications. The three occupations for statutory non-employees are as follows:

The SS-8 technician must verify statutory non-employee status before considering common law factors.

For more information on statutory non-employees, see IRM 4.23.5.7.5, Statutory Non-Employees.

Send statutory non-employee letter Exhibit 7.50.1-17, Statutory Non-Employee Letter Language and Form 14430.

In general, corporate officers are specifically included within the definition of employee for purposes of FICA, FUTA, and federal income tax withholding.

The common law standard does not apply to corporate officers.

In general, the regulations provide that an officer of the corporation is an employee of the corporation.

For more information on corporate officers, see IRM 4.23.5.7.3, Corporate Officers.

Send corporate officer letters to the firm Exhibit 7.50.1-19, Corporate Officer-Firm Letter Language, and to the worker Exhibit 7.50.1-20, Corporate Officer-Worker Letter Language, along with Form 14430.

See the current Revenue Procedure referenced in IRM 7.50.1.1.2, Authority, that prohibits the SS-8 program from making determinations of prospective employment status of workers.

The SS-8 program will take the following actions to process these Form SS-8 cases:

The SS-8 clerical staff will take the following actions to prepare the full determination case for assignment to the SS-8 technician:

If either party disagrees with the original determination, they may request that SS-8 reconsider their determination. In order to request a reconsideration, the party must present new documentation that was not considered during the original SS-8 determination process.

The SS-8 technician that worked the original case will explain the SS-8 process; including the reconsideration process. To set up a case for reconsideration, the technician will request documentation of any information not previously submitted and documentation of any facts the submitter believes were not fully considered in the original submission.

There is no time limit for a taxpayer to request a reconsideration of a determination letter.

To summarize activity, inventory, and closure dispositions occurring each week, the SS-8 units must prepare weekly inventory reports to show volumes of the following:

Weekly reports cover activity from Sunday through Saturday of the prior week.

To summarize reconsideration case activity, the SS-8 units prepare monthly reports to show volumes and results of closed reconsideration cases.

The SS-8 program will consolidate the reports and send the report to Examination Field and Campus Policy Headquarters and Planning and Special Programs (PSP) based on the applicable time frames.

The RRB and the IRS signed an agreement to share SS-8 determination results to assist in the examination of entities within RRB's respective regulatory jurisdictions.

The agreement is pursuant to IRC 6103(l)(1)(C) and Section 7(b)(3) of the Railroad Retirement Act (RRA).

IRC 6103(l)(1)(C) authorizes disclosure of federal tax returns and return information to the RRB for administering the RRA.

When the SS-8 technician has completed their determination regarding the status of railroad workers with respect to Forms SS-8, filed by either a firm or a worker, the determination and Form SS-8 will be sent to the SB/SE Employment Tax Policy Program Manager. The SB/SE Employment Tax Policy Program Manager will provide a copy of the determination and Form SS-8 to the RRB Chief Financial Officer (CFO) (provided such determination and Form SS-8 relate to the Railroad Retirement Tax Act (RRTA).

Pursuant to IRC 6103(d), various state tax agencies coordinate with Governmental Liaison (a function of Privacy, Governmental Liaison, Disclosure and Safeguards) to obtain results of SS-8 determinations for state tax purposes. Establishment of a Secure Data Transmission (SDT) process assists the SS-8 program with providing results to the participating states.

Each month, the SS-8 program completes an extraction of state reports from the SS-8 e-Trak database using the Business Objects (BO) application. BO extracts closed SS-8 determination cases by state that have a determination. SS-8 employees will use local guidelines and reports developed with Governmental Liaison Headquarters Policy to prepare and forward cases using the SDT process. See Exhibit 7.50.1-1, Coordination with Government Liaison Local Guidance for Processing SS-8 Cases for Secured Data Transfer (SDT), for more information.

To summarize the volume of cases forwarded to each participating state, the SS-8 program will prepare a monthly SS-8 Disclosure Accounting Report. This report will be forwarded to:

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Undeliverable (UD) mail is any letter, SS-8 letter, or notice sent to the taxpayer or firm and returned with an indication the address is not valid.

When there is receipt of UD mail, the clerk will sort each piece by the letter type. The clerk will complete IDRS research to identify a more current address. Examples: CC INOLES or CC ENMOD.

When UD mail has a United States Postal Service (USPS) "yellow label address sticker" attached, the clerk will complete IDRS research to confirm which address is most current.

The clerk will refer to the table below to process the UD mail.

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In accordance with revenue procedures issued at the beginning of every calendar year (for instance, Rev. Proc. 20XX-1 for tax year 20XX), the SS-8 program processes determination requests in order of received dates. The granting of expedited requests occurs only in rare and unusual circumstances. This is out of fairness to prior requests already received in the SS-8 program, and because the SS-8 program seeks to process all requests as expeditiously as possible.

The SS-8 program expedites the following specific cases:

When the SS-8 program identifies a case with an expedited handling request for other than a case described above, the SS-8 program will forward the case to the SS-8 manager or SS-8 work leader for review. Upon receipt of the case, the SS-8 manager or SS-8 work leader will take the following actions:

Form SS-8 is a potential source of leads for employment tax examinations. After completing all actions related to issuance or non-issuance of the determination letter, the assigned SS-8 technician will make referrals to the following Business Operating Divisions (BODs):

Once the Form SS-8 is assigned for audit, the assigned examiner must contact the SS-8 technician who worked the Form SS-8 case to obtain copies of any pertinent documentation in the Form SS-8 case file.

Any type of SS-8 case listed above could have fraud indicators. SS-8 technicians use IRM 25.1, Fraud Handbook, and Fraud Checklist to identify and develop SS-8 cases meeting Fraud Criteria. See Exhibit 7.50.1-12, Fraud Checklist, for more information.

The SS-8 technician will forward the fraud referral, along with Form SS-8 and all supporting documentation based on the taxpayer's BOD type, to the appropriate address listed in this IRM section above. Example: If the SS-8 case has fraud indicators and the taxpayer is considered an SB/SE taxpayer, the SS-8 case would be forwarded to CFC - Fraud Coordinator as outlined in Paragraph (1) above.

During the determination process, it may be necessary for an SS-8 technician to contact a firm or a worker by phone. All contacts should be conducted in a professional manner.

When making or receiving phone calls, the SS-8 technician must follow IRM 21.1.3.2.3, Required Taxpayer Authentication, to ensure they are speaking to the appropriate taxpayer, and to prevent unauthorized disclosure of tax information.

The SS-8 technician should take the following actions for any telephone contact.