rs-california-payroll-tax

So the biggest risk by far in a payroll tax audit is the penalties. The EDD has some really nasty penalties. We’ve had situations in the firm sometimes where the amount of tax would be one number and the penalties would be four or five times what the amount of taxes actually is. That’s insane but the biggest risk that we see is that the penalties really amplify the amount of the liability. So when we’re looking at a payroll tax audit our focus is really on penalties and what we can do to eliminate them or at the very least mitigate them. Number two, the risk in an EDD audit is it turns into a fishing expedition audit if left unchecked. We’ll ask for all sorts of things and we’ll go through them with a fine-tooth comb and this creates a lot of back and forth. All of this can be really mitigated if you pre-audit the situation and if you come into the audit with a very well-defined plan and a very well-defined presentation and you’re leading the auditor through the audit kind of with breadcrumbs to make sure that we’re checking the boxes on the avenues that need to be checked and you’re controlling the flow of information. Controlling the flow of information in a payroll tax audit is the best thing that you can do. It’s difficult once you get into the independent contractor part of this and the reason for that is when you’re dealing with situations with independent contractors, the auditor is going to go out and try and interview those people. The problem and the risk to the client is you don’t know exactly what those people are going to say a lot of times. What will be found is that the auditors will lead them through some of the factors that will make them employees. They shouldn’t be doing that but it is a practical purpose that’s sometimes what happens and in other cases they’re disregarding the information in order to help them build their case. Ultimately the auditor is writing a report so the content of that report

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So the appeals process with EDD operates as kind of a little mini trial. The best way to think about it is if I’m sitting at a conference table, it would be me sitting at the conference table, be you (the client) next to me, you’d have the EDD auditor sitting at the conference table, you’d have the EDD hearing representative (usually an attorney, not always but sometimes) and then you’ll have an administrative law judge sitting at the other end of the table. And what happens is kind of a formal mediation process. The EDD will go first. They’ll present their case, you get to ask questions, you get to cross-examine, you get to go back and forth on this and then you present your case and they will ask you questions. They’ll flesh out your case and then ultimately the judge in the case will make a decision.

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