Chapter 12

What Is a California Payroll Tax Audit?

Receiving an audit notice from the Employment Development Department (EDD) can be a harrowing experience. Understatement of the year, right? If you are the recipient of such a letter, then it is important to understand what you are facing and that is why I wrote this chapter. 

Other than in cases where there is some sort of fraud involved, the biggest risk by far in a payroll tax audit is the penalties because the EDD has some really nasty penalties. In our tax law firm, we have seen situations with clients where the penalties would be four or five times the amount of tax. Those penalties really amplify the amount of the liability.

So, I am going to lead this chapter off by explaining the importance of being in control of the audit right out of the gate. Otherwise, you can and will be sacked with penalties from the EDD. Trust me, the more documentation you hand over to the audit, the greater the odds of them finding something to fine you for.

Incidentally, if you are not sure of your next steps, feel free to call me. I have successfully defended many EDD audits for my clients and I know how to structure the situation to control the flow of information during the process.

Managing the Audit

When we are looking at a payroll tax audit, number one, 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 if it turns into a fishing expedition. 

The auditor, if left unchecked, will ask for all sorts of records and will go through them with a fine-tooth comb which creates a lot of back and forth and can quickly become a Catch-22. This naturally, as you can imagine, leads to more penalties

However, much of this can be really mitigated if you pre-audit the situation and know what you are walking into. If you come into the audit with a very well-defined plan and a very well-defined presentation, you can lead the auditor through the audit — you are controlling the flow of information.

Controlling the flow of information in a payroll tax audit is the best thing that you can do. In a California payroll tax audit, remember that an ounce of prevention is really worth a pound of cure.

The California Payroll Tax Audit Process

Generally, EDD employment tax audits cover a three-year period, comprising the 12 most recently completed calendar quarters. However, in some situations, such as when no returns were filed, the audit period may be longer.

An audit begins with a formal notification of audit through postal mail. The auditor will send a list of requested documentation and a pre-audit questionnaire.

A minimum documentation request includes:

  • Verification of business ownership
  • Check registers and stubs
  • Bank statements and canceled checks
  • General ledger and journal
  • Annual financial statements
  • Vouchers and pay-out slips
  • Forms 1099

The pre-audit questionnaire is designed to elicit admissions and give the auditor enough information to develop an audit plan. You must carefully plan your responses to avoid problems later.

How to Prepare for a California Payroll Tax Audit

To review, EDD auditors are looking for four things in the context of a payroll tax audit. They seem simple but there are a lot of nuances to them. We are about to get into some of those nuances.

  1. EDD tax auditors are looking for taxable wages that were reported. They are verifying that the information that was given to the EDD was, in fact, the amount of taxable wages that were paid, and that is consistent with reporting to the IRS.
  2. Tax auditors are looking for the amount of tax paid. It is the same thing; they are looking for consistency in the tax that was paid as was reported to EDD.
  3. EDD auditors are looking for payments that could be potentially reclassified as taxable wages. This is the point where they look at officer compensation. They look at any payments that are on your general ledger that were issued to workers that may be considered taxable wages.
    They look for personal payments that should be reclassified as taxable wages. That is what the EDD is doing when they are going through the general ledger analysis.
  4. The last thing that the auditors are looking for are any misclassification issues. They are reviewing all the outside workers and vendors that the company has and making sure that they are not taxable employees.
    There is a fairly detailed analysis involved in that process. There is a lot of digging, particularly with the general ledger and misclassification issues.

In a nutshell, that is what the auditor looks for as they go through the payroll tax audit process.

Now that you know what the EDD auditors are looking for, how do you get ready for the actual audit?

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What to Expect at the EDD Audit Meeting

First, the auditor will conduct an entrance interview with the employer or with their designated representative to explain the purpose of the audit and its process, gather general information about the operation and organization of business and accounting records, and will answer any questions.

Only then, will the auditor review records. Payroll systems to be checked by EDD can be as basic as a manual system with only a check register and individual earnings records or as complex as a computerized double entry system on an accrual basis.

Provisions of the California Unemployment Insurance Code (CUIC) require employers to keep payroll records providing a true and accurate account of all workers (employed, laid-off, on a leave of absence, or an independent contractor) and all payments made. Consequently, the type of system taxpayer should use should meet the needs of your business and EDD requirements.

Requirements are explained in EDD’s California Employer’s Guide.

The auditor will review employer’s books and records to:

  • Verify the business ownership and type of entity (sole proprietorship, partnership, corporation, other)
  • Verify that all individuals paid for services have been properly classified as either employees or independent contractors in accordance with the provisions of the CUIC and the common law test as applied by the California Supreme Court
  • Discuss any unreported payments made for personal services and the nature of the working relationship(s) with employer and the worker(s). Based on the facts obtained from the records, input from the employer, and discussion(s) with the worker(s), the auditor will determine whether the worker(s) are employees or independent contractors.

In addition, if employer’s account has been selected for a complete audit, the following tests will be performed:

  • Verification that the employer’s acknowledged gross wages and taxable wages have been properly reported.
  • Verification that the employer has correctly withheld and reported personal income tax for wages paid to employees.

Please note that the EDD’s employment tax audit information will be made available to the IRS under an exchange agreement and the IRS may use the information in the administration of its own tax program.

An audit begins with the examination of records for a test year. The test year is generally the most recent completed calendar year. If differences are found in the test year, then the examination may be expanded to include the records for the entire period covered by the audit.

To expedite the audit process, the employer must ensure that all records are available to the auditor.

When it comes to employment classification, the tax auditor has the discretion to define and apply a list of factors to determine whether a worker is an employee or an independent contractor, which brings us around to the relationship between employment classification and payroll tax audits.

The EDD auditors always assess the factors used to determine employment classification (which are highly subjective) in their favor; therefore, it is more difficult to convince them that a contractor is not an employee. One more thing, a worker can be an independent contractor according to the IRS and yet be an employee in the eyes of the EDD.

As a tax attorney, the problem that I encounter is that most businesses adamantly believe that their independent contractors are truly independent contractors. My understanding of what an independent contractor is based on the law in California and a lot of times, how the EDD looks at independent contractors is much different from our client’s understanding of what constitutes an independent contractor.

The same thing goes for payments towards officers and other payments that perhaps should be reclassified as taxable wages.

How Long Does the Audit Take?

If everything is done correctly, the payroll tax audit process should not take any longer than six months. It is a lot of time, I know. You think, "They are going to go through my payroll records for six months."

The reality is, from the time that you get the initial notice, to the time the case gets assigned to an auditor, to the time you have the meeting, to the time the auditor works on the report, to the time it gets finalized, that is about a six-month process.

The best thing that you can do to try and get this process over with quickly, is to come in with a very well-organized plan and a very well-developed presentation to lead the auditor through the process.

The more boxes you can check for the auditor initially, the more that you can help them write their report. The more that you can address the issues in that report, the faster your payroll tax audit is going to move and the more quickly you can get yourself out of trouble.

Conclusion

If you are up against an EDD audit, I encourage you to get a second opinion on the risk that you are going to face. Literally, thousands and thousands of dollars could be at stake here. Why not give me a call?

Brotman Law is staffed by a team of experienced attorneys and legal professionals who are on top of their game when it comes to payroll tax audits. It is not our first rodeo and we know how to take control of the audit to minimize the amount of damage to our clients. 

At the very least, come talk to me to assess your risk and determine what needs to be done to mitigate the fallout. Just give us one hour — it is less time than you would spend on the back nine and well worth it.

I am not necessarily saying that you need to hire a tax attorney, although in most situations it is a good idea when there is an element of risk. At least seek the advice of a professional so that you know what you are walking into and do this before you contact the California payroll tax auditor. 

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