Monday, January 27, 2020

Can I pay a Loan Originator by 1099?

As we roll into tax season, we return again and again to the topic of originator compensation; it remains the most ambiguous topic in compliance. Varying comp, broker company compensation, borrower-paid or lender-paid, all represent areas of confusion. But nothing confounds more, with multiple layers of regulations, than whether you can pay a loan originator as a contractor by 1099.

Conflicting Interests


Ironically, originators WANT this, while other industries experience the opposite with employees decrying the "gig economy" and its loss of employment benefits. But mortgage brokers want to minimize costs and payroll taxes represent a high margin expense. Originators also may benefit from treatment as self-employed with a much wider latitude to expense business development costs than employees. 

On the other side, state and Federal governments have taken aim at the contract labor movement because of the loss in payroll taxes. The IRS has taken steps to formalize the delineation between formal W-2 employees and 1099 contractors.

https://www.irs.gov/pub/irs-pdf/p1779.pdf

The IRS guidelines basically say, “If you have the right to control or direct not only what is to be done, but also how it is to be done, then your workers are most likely employees.” The IRS focuses on three main areas when determining employment status:


  • How much control the employer has over the worker’s behavior and work results. (Who controls training, where and when the person works, what equipment they use?)
  • How much control does the employer have on finances? (Does the employer have primary control over the person’s profit or loss?)
  • What is the relationship between parties? (Does the worker receive benefits and is it a long-term relationship?)


Here is the 20-point checklist from the IRS, which may be used as guidelines in determining if a worker can be legally paid as a contractor:


  • Must the individual take instructions from your management staff regarding when, where, and how work is to be done?
  • Does the individual receive training from your company?
  • Is the success or continuation of your business somewhat dependent on the type of service provided by the individual?
  • Must the individual personally perform the contracted services?
  • Have you hired, supervised, or paid individuals to assist the worker in completing the project stated in the contract?
  • Is there a continuing relationship between your company and the individual?
  • Must the individual work set hours?
  • Is the individual required to work full time at your company?
  • Is the work performed on company premises?
  • Is the individual required to follow a set sequence or routine in the performance of his work?
  • Must the individual give you reports regarding his/her work?
  • Is the individual paid by the hour, week, or month?
  • Do you reimburse the individual for business/travel expenses? 
  • Do you supply the individual with needed tools or materials?
  • Have you made a significant investment in facilities used by the individual to perform services?
  • Is the individual free from suffering a loss or realizing a profit based on his work?
  • Does the individual only perform services for your company?
  • Does the individual limit the availability of his services to the general public?
  • Do you have the right to discharge the individual?
  • May the individual terminate his services at any time?


Further, fair labor laws stipulate minimum wages, safe working conditions, and benefits. 

Draw a Bright Line


We may never get closure on this matter; too many variable circumstances exist for a regulator to draw a definitive line. This exposes the mortgage industry to individual legal or regulatory actions such as those we have already seen; lawsuits for minimum wage claims and licensing censure for incorrect classification of marketers as contractors. 

In our estimation, the ONLY legitimate solution lies in having the employee/contractor affirmatively claiming self-employment. For mortgage brokers, this means licensing as a company as well as an individual. In other words, instead of just an MU-4, the loan originator will also file an MU-1 and MU-2 in his or her natural name. In this way, the mortgage originator can insist on payment as a contractor with no risk to the employer for misclassification or wage-hour claims.

But Everyone's Doing It


Yes. We hear of this all the time. The fact that other companies pay via 1099, and even advertise it,  does not mean you've missed something. Structures like this take advantage of the ambiguity in the rules, hoping to "fly below the radar" of lax oversight. Many states don't validate compensation plans by drilling down into W-2 employees versus contract employees. It's likely that this is what you are seeing. You take a chance when offering non-standard plans. 

Exceptions


  • HUD requires that lenders participating in its programs affirmatively eschew conflicts of interest created by outside employment. Lenders offering FHA financing must compensate employees by W-2. 

SAFE Act Update


Transitional Licensing Update - We updated the SAFE Act Licensing Policy to iterate the requirements of Transitional Licensing for LOs. Remember that you MUST have an existing license to transition. Registration does not count. Also, the company has to be licensed before you can transition to the company.

Licensing Processors - It should be obvious that processors or other employees don't need to be licensed. It should be equally obvious that processors who aren't employees MUST be licensed. Among other things, besides a license, that your contract processor must have:

  • Processing Policies and Procedures
  • Information Security
  • Fair Lending
  • Anti-Money Laundering
  • Anti-Predatory Lending

Consult your Vendor Management plan.

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