Saturday, September 24, 2016

Starting an LLC in Oregon?

Have you been thinking of starting an LLC in Oregon, but you didn't know quite where to start? This is my first small business themed post, but I hope you find the information offered helpful. Please note that this post is my personal work only, and it does not necessarily reflect the views or opinions of my employer. Visitor statistics and feedback will be reviewed later to see whether, or not, this series will continue. None of this information should replace the professional advice received from a reputable attorney or CPA.

As soon as you have met with your CPA and/or attorney, it's time for you to register your business name(s). This registration is done through the Oregon Secretary of State Corporation Division's Business Information Center. Besides registering your business name, you can also register at this same time for your Business Identification Number--used for state tax reporting. Alternatively, you can also use the paper form of the Combined Employer Registration and fax the completed form in as instructed. Bear in mind, though, that using the paper form will create a significant processing delay for you. Completing the online form will result in you obtaining your Business Identification Number (BIN) much more efficiently, but the decision is yours. The Oregon Department of Revenue (DOR) will issue the BIN, and the Oregon Employment Department (OED) will review and send a Notice of Determination (NOD) some time later. This explains how and when your company becomes subject to Oregon Unemployment Tax program. You don't need to wait for the NOD, however. As long as you have your BIN, you can file and pay your quarterly taxes. If you don't want to send checks, you can also pay using the DOR's EFT System.

You're already likely familiar with the federal taxes, but what about state taxes? What do you need to know? There are several different of categories of payroll taxes in Oregon, and it's possible that they won't all apply to you: Oregon State Withholding, Unemployment Tax, Workers Compensation, Tri-Met (Portland Metro), Lane Transit (Eugene Metro), and Canby Transit. Today, we're going to focus more on Unemployment Tax than the other tax programs. This may also be a good time to read the Oregon Business Guide.

Oregon LLCs

Did you know that, unless they elect to be covered, LLC members are excluded from Unemployment Tax by default? (See ORS 657.044(c) and Corporations and Limited Liability Companies flyer.) This means, of course, that if it's only llc members working, you should not be reporting or paying Unemployment Tax. Leave column A blank; don't include zeros, or this will delay return processing at OED. Reporting correctly as an llc will save you a considerable amount of money each year, and it will also ensure that your reports are processed much more quickly and efficiently, because manual corrections won't be required.  

LLCs and the Federal Election

One other thing to remember concerns the federal election of the llc, since the limited liability company is a disregarded entity for IRS purposes.  This federal election has no bearing on how the OED recognizes your company.  In other words, it's like the IRS looks at the llc and sees a corporation, partnership, etc. (whatever you have elected), but Oregon looks at the llc...and sees an llc.  Since corporate officers are reportable employees in Oregon, this is a really important distinction for you to clearly understand.  The LLC is always an LLC with regards to the UI Tax program.  (DOR will recognize the entity the same as the IRS.)

A Few Word About Independent Contractors

One of the most confusing areas for new businesses is making the distinction between employee/employer or independent contractor. Making a mistake here can be expensive and time-consuming to correct. In order for someone to be correctly classified as an independent contractor in Oregon, the person must represent an independent and established business within the same industry in which they are providing services. If the potential "independent contractor," is just a fellow off the street, then you're likely looking at a relationship better categorized as employer/employee.

Ministers and Oregon Independent Contractor Law

Because of this being an area of special interest, I am adding it here. As religious organizations would not usually be llcs, this may appear again if this series continues.

A Quick History Lesson

Before the Oregon Supreme Court’s decision in 2000 (See Newport Church of the Nazarene v. Gordon Hensley and the Oregon Employment Department.), ministers were excluded from Unemployment Tax, making ministers ineligible for unemployment benefits. A key part of the court’s decision is provided below.

In sum, we conclude that, in purporting to draw a distinction between church ministers and leaders of other religious organizations, ORS 657.072(1)(b) violates Article I, sections 2, 3, and 20, of the Oregon Constitution. In light of that conclusion, and in accordance with Salem College and Rogue Valley, we construe the statute consistently with OAR 471-031-0090 (1996) to include both ministers and leaders of other religious organizations in Oregon's unemployment compensation program…

Are Ministers Independent Contractors?

Since the above court decision, there’s frequently confusion when it comes to reporting ministers. The first thing to bear in mind is that ministers are no longer automatically excluded; that’s the result of the Oregon Supreme Court decision. If their compensation is to be excluded from unemployment tax at all, it would hinge on whether, or not, they are indeed independent contractors in accordance to ORS 670.600.

When it comes to ministers, however, it may prove difficult to establish that they are truly independent and free from direction and control in the services they perform. While the independent contractor flyer is an excellent reference, these services often require a more detailed review. Frequently, for example, most churches and religious organizations have doctrinal positions that are defined and established. The pastor who decides on a whim to preach counter to the established doctrinal beliefs of his denomination may risk censure or termination.

On the other end of the religious spectrum, some denominations may assert that their ministers are free to preach any teaching at all. Even for universalists, however, the acceptance of all pathways leading to the same spiritual end is a position which excludes other religious beliefs and positions. In other words, even if an organization were to make the argument that they have no particular set of core beliefs, that they’re open to considering all other faiths and religions, this lack of adherence to a central doctrine becomes (in effect) their doctrine. It’s also difficult to say that you are accepting of everything, because many faiths and traditions are inherently contradictory in nature. In short, then, it’s not an easy thing to establish complete freedom from direction and control for ministers. It may not be readily apparent, but there are almost always either defined or undefined expectations to consider.

What about housing allowances, stipends, and reimbursements?

For UI Tax purposes, housing allowance payments will always be subject. Even if the parsonage was owned by the church and the minister was simply allowed to live there rent free, the fair market value of the rent should be reported as wages for UI Tax.

Stipends are considered subject wages and should always be reported. Honorariums paid to the minister directly are subject if paid by the church or employing enterprise.

Actual reimbursements are excluded as long as there is a valid and written accountable plan, which is consistently followed.

The IRS’ Minister Audit Technique Guide may be of some use, but bear in mind that federal income tax rules often are different from state unemployment tax rules.

Has this post helped you? If so, I'd appreciate hearing from you!

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