THE "NANNY TAX" RULES:
What To Do If You Have Household Employees
|If you have a household employee, you may need to pay state and federal employment taxes. Which forms do you need to file for your household employees? Is your maid, housekeeper, or babysitter covered by the rules? This Guide provides the answers to these and other questions.|
TABLE OF CONTENTS
Who is a Household Employee?
Can Your Employee Legally Work in the United States?
Do You Need to Pay Employment Taxes?
State Unemployment Taxes
Social Security And Medicare Taxes
Federal Unemployment (FUTA) Tax
Do You Need to Withhold Federal Income Tax?
How Do You Handle The Earned Income Credit?
How Do You Make Tax Payments?
What Forms Must You File?
What Records Must You Keep?
This Financial Guide will help you decide whether you have a "household employee," as defined by the IRS, and, if you do, whether you need to pay federal employment taxes. It explains the rules for determining, paying, and reporting Social Security tax, Medicare tax, federal unemployment tax, federal income tax withholding, and state unemployment tax for your household employee. It also explains what records you need to keep. In addition, it provides you with the information you need to find out whether you need to pay state unemployment tax for your household employee.
While many people disregard the need to pay taxes on household employees, they do so at the risk of stiff tax penalties.
As you can see, these rules are quite complex, even for such a relatively minor employee, and a mistake can bring on tax headaches. Therefore, professional tax guidance is highly recommended.
A basic familiarity with these rules, as discussed in this Financial Guide, will make it easier to work with your tax advisor, saving time, reducing tax costs and avoiding tax penalties and interest charges.
The "nanny tax" rules apply to you only if (1) you pay someone for household work and (2) that worker is your employee.
|Example: You pay Betty to baby sit your child and do light housework four days a week in your home. Betty follows your specific instructions about household and child care duties. You provide the household equipment and supplies that Betty needs to do her work. Betty is your household employee.|
|Example: You pay John to care for your lawn. John also offers lawn care services to other homeowners in your neighborhood. He provides his own tools and supplies, and he hires and pays any helpers he needs. Neither John nor his helpers are your household employees.|
It is unlawful for you to knowingly hire or continue to employ an alien who cannot legally work in the United States.
When you hire a household employee to work for you on a regular basis, he or she must complete the employee part of the Immigration and Naturalization Service (INS) Form I-9, Employment Eligibility Verification. You must verify that the employee is either a U.S. citizen or an alien who can legally work and then complete the employer part of the form. Keep the completed form for your records.
Two copies of Form I-9 are contained in the INS Handbook for Employers. Call the INS at 1- 800-755-0777 to order the handbook or additional copies of the form or to get more information.
If you have a household employee, you may need to withhold and pay Social Security and Medicare taxes, or you may need to pay federal unemployment tax, or you may need to do both. To find out, read the table below.
Then you need to:
Pay cash wages of $1,300 or more in 2001 to any one household employee.
Do not count wages you pay to:
Withhold and pay Social Security and Medicare taxes.
(You can choose to pay the employee's share yourself and not withhold it.)
Pay total cash wages of $1,000 or more in any calendar quarter of 2000 or
2001 to household employees.
Do not count wages you pay to:
Pay federal unemployment tax.
|Note: If neither of the two contingencies applies, you do not need to pay any federal unemployment taxes. But you may still need to pay state unemployment taxes.|
You do not need to withhold federal income tax from your household employee's wages. But if your employee asks you to withhold it, you can choose to do so.
MORE: If you need to pay
Social Security, Medicare, or federal unemployment tax or choose to withhold
federal income tax, see the
|TIP: If your household employee cares for your dependent who is under age 13 or your spouse or dependent who is not capable of self care, so that you can work, you may be able to take an income tax credit of up to 30% of your expenses. If you can take the credit, you can include your share of the federal and state employment taxes you pay, as well as the employee's wages, in your qualifying expenses.|
Both you and your household employee may owe Social Security and Medicare taxes. The taxes for each of you are 7.65% (6.2% for Social Security tax and 1.45% for Medicare tax) of the employee's Social Security and Medicare wages.
You are responsible for payment of your employee's share of the taxes as well as your own. You can either withhold your employee's share from the employee's wages or pay it from your own funds.
You figure Social Security and Medicare taxes on the Social Security and Medicare wages you pay. If you pay your household employee cash wages of $1,300 or more in 2001, all cash wages you pay to that employee in 2000 (regardless of when the wages were earned) are Social Security and Medicare wages. If you pay the employee less than $1,300 in cash wages in 2001, none of the wages you pay the employee are Social Security and Medicare wages, and neither you nor your employee will owe Social Security or Medicare tax.
Do not count wages you pay to any of the following individuals as Social Security and Medicare wages:
|Note: However, you should count wages to your parent if both of the following apply: (a) your child lives with you and is either under age 18 or has a physical or mental condition that requires the personal care of an adult for at least 4 continuous weeks in a calendar quarter, and (b) you are divorced and have not remarried, or you are a widow or widower, or you are married to and living with a person whose physical or mental condition prevents him or her from caring for your child for at least 4 continuous weeks in a calendar quarter.|
4. An employee who is under age 18 at any time during the year.
|Note: However, you should count these wages to an employee under 18 if providing household services is the employee's principal occupation. If the employee is a student, providing household services is not considered to be his or her principal occupation.|
Also, if your employee's Social Security and Medicare wages reach $80,400 in 2001, do not count any wages you pay that employee during the rest of the year as Social Security wages to figure Social Security tax. (But continue to count the employee's cash wages as Medicare wages to figure Medicare tax.)
You figure federal income tax withholding on both cash and non-cash wages (based on their value). However, do not count as wages any of the following items:
You should withhold the employee's share of Social Security and Medicare taxes if you expect to pay your household employee Social Security and Medicare wages of $1,300 or more in 2001. However, if you prefer to pay the employee's share yourself, see "Not Withholding the Employee's Share" in the next section.
You may withhold the employee's share of the taxes even if you are not sure your employee's Social Security and Medicare wages will be $1,300 or more in 2001. If you withhold the taxes but then actually pay the employee less than $1,300 in Social Security and Medicare wages for the year, you should repay the employee.
You pay withheld taxes as part of your regular income tax obligation. You don't deposit them periodically—subject to expectation for business owners. See "Payment Options for Business Employers" below.
Withhold 7.65% (6.2% for Social Security tax and 1.45% for Medicare tax) from each payment of Social Security and Medicare wages. You can use the table at the end of this Guide to figure the proper amount to withhold. Instead of paying this amount to your employee, you will pay it to the IRS with a matching amount for your share of the taxes.
If you make an error by withholding too little, you should withhold additional taxes from a later payment. If you withhold too much, you should repay the employee.
|Example. You hire a household employee (who is an unrelated individual over age 18) to care for your child and agree to pay cash wages of $100 every Friday. You expect to pay your employee $1,300 or more for the year. You should withhold $7.65 from each $100 wage payment and pay your employee the remaining $92.35. The $7.65 is the sum of $6.20 ($100 x 6.2%) for your employee's share of Social Security tax and $1.45 ($100 x 1.45%) for your employee's share of Medicare tax. You will match the $7.65 you withhold with $7.65 from your own funds when you pay the taxes.|
If you prefer to pay your employee's Social Security and Medicare taxes from your own funds, you do not have to withhold them from your employee's wages. The Social Security and Medicare taxes you pay to cover your employee's share must be included in the employee's wages for income tax purposes. However, they are not counted as Social Security and Medicare wages or as federal unemployment (FUTA) wages.
|Example. You hire a household employee (who is an unrelated individual over age 18) to care for your child and agree to pay cash wages of $100 every Friday. You expect to pay your employee $1,300 or more for the year. You decide to pay your employee's share of Social Security and Medicare taxes from your own funds. You pay your employee $100 every Friday without withholding any Social Security or Medicare taxes. For each wage payment you will pay $15.30 when you pay the taxes. This is $7.65 ($6.20 for Social Security tax plus $1.45 for Medicare tax) to cover your employee's share plus a matching $7.65 for your share. For income tax purposes, your employee's wages each payday are $107.65 ($100 plus the $7.65 that you will pay to cover your employee's share of Social Security and Medicare taxes).|
The federal unemployment tax is part of the federal and state program under the Federal Unemployment Tax Act (FUTA) that pays unemployment compensation to workers who lose their jobs. Like most employers, you may owe both the federal unemployment tax (the FUTA tax) and a state unemployment tax. Or, you may owe only the FUTA tax or only the state unemployment tax. To find out whether you will owe state unemployment tax, contact your state's unemployment tax agency. See the list of state unemployment agencies at the end of this Guide for the address.
The FUTA tax is 6.2% of your employee's FUTA wages. But it is reduced to 0.8% for 2001 if the FUTA wages you pay are not more than the wages that are subject to state unemployment tax, and you pay all the required contributions for 2000 to your state unemployment fund by April 15, 2002.
|TIP: Do not withhold the FUTA tax from your employee's wages. You must pay it from your own funds.|
You figure the FUTA tax on the FUTA wages you pay. If you pay cash wages to household employees totaling $1,000 or more in any calendar quarter of 2001, the first $7,000 of cash wages you pay to each household employee in 2001 and 2002 is FUTA wages. (A calendar quarter is January through March, April through June, July through September, or October through December.) If your employee's cash wages reach $7,000 during the year, do not figure the FUTA tax on any wages you pay that employee during the rest of the year. For a discussion of "cash wages," see the section on Social Security Wages, above.
If you pay less than $1,000 cash wages in each calendar quarter of 2001, but you had a household employee in 2000, the cash wages you pay in 2001 may still be FUTA wages. They are FUTA wages if the cash wages you paid to household employees in any calendar quarter of 2000 totaled $1,000 or more.
Do not count wages you pay to any of the following individuals as FUTA wages:
|Example. You hire a household employee (who is not related to you) on January 1, 2001, and agree to pay cash wages of $200 every Friday. During January, February, and March you pay the employee cash wages of $2,600. Because you pay cash wages of $1,000 or more in a calendar quarter of 2001, the first $7,000 of cash wages you pay the employee (or any other employee) in 2001 or 2002 is FUTA wages. The FUTA wages you pay may also be subject to your state's unemployment tax.|
During 2001, you pay your household employee cash wages of $10,400. You pay all the required contributions for 2001 to your state unemployment fund by April 15, 2002. Your FUTA tax for 2001 is $56 ($7,000 x 0.8%).
You should contact your state unemployment tax agency to find out whether you need to pay state unemployment tax for your household employee. For the address and phone number, see State Unemployment Tax Agencies You should also find out whether you need to pay or collect other state employment taxes or carry workers' compensation insurance.
|Note: If you do not need to pay Social Security, Medicare, or federal unemployment tax and do not choose to withhold federal income tax, the rest of this publication does not apply to you.|
You are not required to withhold federal income tax from wages you pay a household employee. You should withhold federal income tax only if your household employee asks you to withhold it and you agree. The employee must give you a completed Form W-4, Employee's Withholding Allowance Certificate.
If you agree to withhold federal income tax, you are responsible for paying it to the IRS.
You figure federal income tax withholding on both cash and non-cash wages you pay. Measure wages you pay in any form other than cash by the value of the non-cash item.
Do not count as wages any of the following items:
Up to $180 a month for the value of parking you provide your employee at or near your home or at or near a location from which your employee commutes to your home.
Any income tax you pay for your employee without withholding it from the employee's wages must be included in the employee's wages for federal income tax purposes. It is also counted as Social Security and Medicare wages and as federal unemployment (FUTA) wages.
Certain workers can take the earned income credit (EIC) on their federal income tax return. This credit reduces their tax or allows them to receive a payment from the IRS if they do not owe tax. You may have to make advance payments of part of your household employee's EIC along with the employee's wages. You also may have to give your employee a notice about the EIC.
You must make advance EIC payments if your employee gives you a properly completed Form W-5, Earned income Credit Advance Payment Certificate. Any advance EIC payments you make reduce the amount of Social Security and Medicare taxes and withheld federal income tax you need to pay to the IRS.
The employee's copy (Copy B) of the IRS 2001 Form W-2, Wage and Tax Statement has a statement about the EIC on the back.
|TIP: If you give your employee that copy by January 31, 2002 (as discussed under Form W-2), you do not have to give the employee any other notice about the EIC.|
Otherwise, you must give your household employee a notice about the EIC only if you agree to withhold federal income tax from the employee's wages but the income tax withholding tables show that no tax should be withheld. Even if not required, you are encouraged to give the employee a notice about the EIC if his or her 2001 wages are less than $31,152.
If you do not give your employee Copy B of the IRS Form W-2, your notice about the EIC can be any of the following:
If you give your employee a substitute Form W-2 on time which lacks the required EIC information, you must give notice about the 2001 EIC to the employee within one week of the date you gave him or her the substitute Form W-2. If Form W-2 is required, but not given on time, you must give the employee notice about 2001 EIC by January 31, 2002. If Form W-2 is not required, you must give your notice to the employee by February 7, 2002.
When you file your 2001 federal income tax return in 2002, attach Schedule H, Household Employment Taxes. Use this Scheduled, discussed further below, to figure your household employment taxes. You will add the federal employment taxes on the wages you pay to your household employee in 2001, less any advance earned income credit payments you make to the employee, to your income tax. The amount you owe with your return is due to the IRS by April 15, 2002.
|TIP: You can avoid owing tax with your return if you pay enough federal income tax before you file to cover the employment taxes for your household employee, as well as your income tax. If you are employed, you can ask your employer to withhold more federal income tax from your wages in 2001. If you get a pension or annuity, you can ask for more federal income tax withholding from your benefits. Or you can make estimated tax payments for 2001 to the IRS, or increase your payments if you already make them.|
You may have to pay an estimated tax penalty if you do not have enough federal income tax withheld or pay enough estimated tax.
If you are employed and want more federal income tax withheld from your wages to cover the employment taxes for your household employee, give your employer a new Form W-4, Employee's Withholding Allowance Certificate. Complete it as before, but show the additional amount you want withheld from each paycheck on line 6.
If you get a pension or annuity and want more federal income tax withheld to cover the employment taxes for your household employee, give the payer a new Form W-4P, Withholding Certificate for Pension or Annuity Payments (or a similar form provided by the payer). Complete it as before, but show the additional amount you want withheld from each benefit payment on line 3.
If you want to make estimated tax payments to cover the employment taxes for your household employee, get Form 1040-ES, Estimated Tax for Individuals. Use its payment vouchers to make your payments. You can pay all of the employment taxes at once or in installments. If you have already made estimated tax payments for 2001, you can increase your remaining payments to cover the employment taxes. Estimated tax payments for 2001 are ordinarily due April 16, June 15, October 1 (changed for 2001 from the usual September 15 by the 2001 Tax Relief Act), and January 15, 2002.
If you own a business as a sole proprietor or your home is on a farm operated for profit, you can choose either of two ways to pay the 2001 federal employment taxes for your household employee. You can pay them with your federal income tax as described above, or you can include them with your federal employment tax deposits or other payments for your business or farm employees.
If you pay the employment taxes for your household employee with business or farm employment taxes, you must report them with those taxes on Form 941 or Form 943 and on Form 940 (or 940-EZ).
You must file certain forms to report your household employee's wages and the federal employment taxes for the employee if you pay the employee:
The employment tax forms and instructions you need will be sent to you automatically in January 2002 if you reported employment taxes for 2000 on Schedule H (Form 1040), Household Employment Taxes.
You must include your employer identification number (EIN) on the forms you file for your household employee. An EIN is a 9-digit number issued by the IRS--not the same as a Social Security number.
|TIP: You ordinarily will have an EIN if you previously paid taxes for employees, either as a household employer or in a business you own as a sole proprietor, or if you have a Keogh Plan. If you already have an EIN, use that number. If you do not have an EIN, get Form SS-4, Application for Employer Identification Number. The instructions for Form SS-4 explain how you can get an EIN immediately by telephone or in about 4 weeks if you apply by mail.|
A separate 2001 Form W-2, Wage and Tax Statement, must be filed for each household employee to whom you pay:
You must complete Form W-2 and give Copies B, C, and 2 to your employee by January 31, 2002. You must send Copy A of Form W-2 with Form W-3, Transmittal of Wage and Tax Statements, to the Social Security Administration by February 28, 2002.
If an employee stops working for you before the end of 2001, you may file Form W-2 and provide copies to your employee immediately after you make your final payment of wages. You do not need to wait until 2002. If the employee asks you for Form W-2, give it to him or her within 30 days after the request or the last wage payment, whichever is later.
Use Schedule H (Form 1040), Household Employment Taxes, to report the federal employment taxes for your household employee if you pay the employee:
File Schedule H with your 2001 federal income tax return by April 15, 2002. If you get an extension to file your return, the extension will also apply to your Schedule H.
If you are not required to file a 2001 tax return, you must file Schedule H by itself. See the Schedule H instructions for details.
Do not use Schedule H (Form 1040) if you choose to pay the employment taxes for your household employee with business or farm employment taxes. Instead, include the Social Security, Medicare, and withheld federal income taxes for the employee on the Forms 941, Employer's Quarterly Federal Tax Return, that you file for your business or on the Form 943, Employer's Annual Tax Return for Agricultural Employees, that you file for your farm. Include the FUTA tax for the employee on your Form 940 (or 940-EZ), Employer's Annual Federal Unemployment (FUTA) Tax Return.
If you report the employment taxes for your household employee on Form 941 or Form 943, file Form W-2 for the employee with the Forms W-2 and Form W-3 for your business or farm employees.
Keep your copies of Schedule H or other employment tax forms you file and related Forms W-2, W-3, W-4, and W-5. You must also keep records to support the information you enter on the forms you file. If you are required to file Form W-2, you will need to keep a record of your employee's name, address, and Social Security number.
On each payday you should record the date and amounts of:
You must keep a record of your employee's name and Social Security number exactly as they appear on his or her Social Security card if you pay the employee:
You must ask for your employee's Social Security number no later than the first day on which you pay the wages. You may wish to ask for it when you hire your employee.
An employee who does not have a Social Security number must apply for one on Form SS-5, Application for a Social Security Card. An employee who has lost his or her Social Security card or whose name is not correctly shown on the card should apply for a new card. Employees may get Form SS-5 from any Social Security Administration office or by calling l-800-772-1213.
Keep your employment tax records for at least four years after the due date of the return on which you report the taxes or the date the taxes were paid, whichever is later.