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HomeMy WebLinkAboutSS5 - Business License Tax - Staff PowerPointCity of Newport Beach A Review of Business License Tax uirements for Real Estate Agent ew ➢ Background PCity Code Requirements • Business License Tax Rates and Revenue ➢ What factors do we consider to determine if Real Estate Agents are subject to Business kicense Taxation? Are we compliant with Federal and State legal standards? Is our treatment of the real estate industry consistent with the treatment of other industries that employ independent contractors? Background NBMC Code Requirements • Any person who operates a business in the City must obtain a license (NBMC §5.04.020). • "Person" shall mean ... individuals transacting and carrying on any business in the city other than as an employee (NBMC §5.04.010). "Business" shall mean arts, professions, trades and occupations in all and every kind of calling, whether or not carried on for profit (NBMC §5.04.010). Employees are not required to obtain business licenses. Business License Tax Rates and Associated Revenue from Real Estate Agents and Brokers Annual Tax Rate Annual Revenue • Residential Location $151 • Currently, 1100 licei • Commercial Location $159 agents and brokers • Out of Town $239 • 2012 $234,557 • 2013 $221,926 Evaluative Fa .State •Empbyce /Employer RelatiomM1ip Law • Legal Obliganans ro Ea[b ONa TaX • W2 $tdt115 01099 0 RhNWe C 1 MMMM� Independent T Contractor Pub •commoora�mrs • payroll W-1 -W Fed Law lifornia Law Business & Professions Code § 16300: When there is a dispute between a city... and a taxpayer, the manner in which a taxpayer reports or reported income to the Franchise Tax Board or the Internal Revenue Service shall create a presumption regarding whether the taxpayer performed services for an employer as an employee, or operated a business entity. real estate agents, like most independent contractors, file a Jule C to receive the benefit of federal and state deductions, ng the presumption of being a business entity. Federal Standards IRS Publication 15A states that a real estate agent is a statutory non employee if: Substantially all payments for their services as direct sellers or real estate agents are directly related to sales or other output, rather than to the number of hours worked, and Their services are performed under a written contract providing that they will not be treated as employees for federal tax purposes Federal Law U.S. Code Title 26, Chapter 25, § 3508, Treatment of Real Estate Agents and Direct Sellers, provides that ...in the case of services performed as a qualified real estate agent ... 1) the individual performing such services shall not b treated as an employee, and 2) the person for whom such services are performed shall not be treated as an employer." Legal Precedent The application of the City's business license requirem7e to real estate agents has previously been challenged and upheld in court: ➢ Cartelli vs. City of Newport Beach, Superior Court of California, County of Orange Case #30 -2009- 002350 ➢ Migliori vs. City of Newport Beach, Superior Court of California, County of Orange Case #30 -2011- 00508986 02/21/2014 6 02/21/2014 Il Ill do other cities classify real estate agents for business license taxation purposes? Independent Contractor Buena Park Mesa rden Grove Habra Palma Beach t Beach Diego Juan Capistrano Marino w Monica Employees of Broker Other Brea Beverly Hills Huntington Beach Palm Springs Long Beach Pasadena Orange Santa Barbara Tustin Walnut Creek Other Considerations • If the tax becomes the responsibility of the broker to pay on behalf of their agents, there will be an increased likelihood that out of City brokers will have an unfair advantage over brokers and agents within the City if their tax is uncollectable. If real estate agents were to be exempted from the City's busii license requirements, the initial legal concern is that we could challenges from other types of independent contractors seekii exemption. Summary - Frequently Asked Questions ➢ Real estate regulations require me to work for a broker. The broker is taxed, why should I also be taxed? ➢ Since my broker pays workers comp on my shouldn't I be classified as an employee of broker for taxation purposes? Other cities exempt real estate agents from the business license tax, why doesn't Newport Beach? City of Newport Beach A Review of Business License Tax uirements for Real Estate Agents � rof�,4"