[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 1908 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                S. 1908

 To amend the Internal Revenue Code of 1986 to clarify the employment 
  tax treatment and reporting of wages paid by professional employer 
                 organization, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           November 18, 2011

  Mr. Grassley (for himself and Mr. Nelson of Florida) introduced the 
 following bill; which was read twice and referred to the Committee on 
                                Finance

_______________________________________________________________________

                                 A BILL


 
 To amend the Internal Revenue Code of 1986 to clarify the employment 
  tax treatment and reporting of wages paid by professional employer 
                 organization, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. CERTIFIED PROFESSIONAL EMPLOYER ORGANIZATIONS.

    (a) Employment Taxes.--Chapter 25 of the Internal Revenue Code of 
1986 is amended by adding at the end the following new section:

``SEC. 3511. CERTIFIED PROFESSIONAL EMPLOYER ORGANIZATIONS.

    ``(a) General Rules.--For purposes of the taxes, and other 
obligations, imposed by this subtitle--
            ``(1) a certified professional employer organization shall 
        be treated as the employer (and no other person shall be 
        treated as the employer) of any work site employee performing 
        services for any customer of such organization, but only with 
        respect to remuneration remitted by such organization to such 
        work site employee, and
            ``(2) exclusions, definitions, and other rules which are 
        based on the type of employer and which would (but for 
        paragraph (1)) apply shall apply with respect to such taxes 
        imposed on such remuneration.
    ``(b) Successor Employer Status.--For purposes of sections 
3121(a)(1), 3231(e)(2)(C), and 3306(b)(1)--
            ``(1) a certified professional employer organization 
        entering into a service contract with a customer with respect 
        to a work site employee shall be treated as a successor 
        employer and the customer shall be treated as a predecessor 
        employer during the term of such service contract, and
            ``(2) a customer whose service contract with a certified 
        professional employer organization is terminated with respect 
        to a work site employee shall be treated as a successor 
        employer and the certified professional employer organization 
        shall be treated as a predecessor employer.
    ``(c) Liability of Certified Professional Employer Organization.--
Solely for purposes of its liability for the taxes, and other 
obligations, imposed by this subtitle--
            ``(1) a certified professional employer organization shall 
        be treated as the employer of any individual (other than a work 
        site employee or a person described in subsection (f)) who is 
        performing services covered by a contract meeting the 
        requirements of section 7705(e)(2), but only with respect to 
        remuneration remitted by such organization to such individual, 
        and
            ``(2) exclusions, definitions, and other rules which are 
        based on the type of employer and which would (but for 
        paragraph (1)) apply shall apply with respect to such taxes 
        imposed on such remuneration.
    ``(d) Treatment of Credits.--
            ``(1) In general.--For purposes of any credit specified in 
        paragraph (2)--
                    ``(A) such credit with respect to a work site 
                employee performing services for the customer applies 
                to the customer, not the certified professional 
                employer organization,
                    ``(B) the customer, and not the certified 
                professional employer organization, shall take into 
                account wages and employment taxes--
                            ``(i) paid by the certified professional 
                        employer organization with respect to the work 
                        site employee, and
                            ``(ii) for which the certified professional 
                        employer organization receives payment from the 
                        customer, and
                    ``(C) the certified professional employer 
                organization shall furnish the customer with any 
                information necessary for the customer to claim such 
                credit.
            ``(2) Credits specified.--A credit is specified in this 
        paragraph if such credit is allowed under--
                    ``(A) section 41 (credit for increasing research 
                activity),
                    ``(B) section 45A (Indian employment credit),
                    ``(C) section 45B (credit for portion of employer 
                social security taxes paid with respect to employee 
                cash tips),
                    ``(D) section 45C (clinical testing expenses for 
                certain drugs for rare diseases or conditions),
                    ``(E) section 51 (work opportunity credit),
                    ``(F) section 51A (temporary incentives for 
                employing long-term family assistance recipients),
                    ``(G) section 1396 (empowerment zone employment 
                credit),
                    ``(H) 1400(d) (DC Zone employment credit),
                    ``(I) Section 1400H (renewal community employment 
                credit), and
                    ``(J) any other section as provided by the 
                Secretary.
    ``(e) Special Rule for Related Party.--This section shall not apply 
in the case of a customer which bears a relationship to a certified 
professional employer organization described in section 267(b) or 
707(b). For purposes of the preceding sentence, such sections shall be 
applied by substituting `10 percent' for `50 percent'.
    ``(f) Special Rule for Certain Individuals.--For purposes of the 
taxes imposed under this subtitle, an individual with net earnings from 
self-employment derived from the customer's trade or business is not a 
work site employee with respect to remuneration paid by a certified 
professional employer organization.
    ``(g) Regulations.--The Secretary shall prescribe such regulations 
as may be necessary or appropriate to carry out the purposes of this 
section.''.
    (b) Certified Professional Employer Organization Defined.--Chapter 
79 of the Internal Revenue Code of 1986 is amended by adding at the end 
the following new section:

``SEC. 7705. CERTIFIED PROFESSIONAL EMPLOYER ORGANIZATIONS DEFINED.

    ``(a) In General.--For purposes of this title, the term `certified 
professional employer organization' means a person who has been 
certified by the Secretary for purposes of section 3511 as meeting the 
requirements of subsection (b).
    ``(b) General Requirements.--A person meets the requirements of 
this subsection if such person--
            ``(1) demonstrates that such person (and any owner, 
        officer, and such other persons as may be specified in 
        regulations) meets such requirements as the Secretary shall 
        establish with respect to tax status, background, experience, 
        business location, and annual financial audits,
            ``(2) computes its taxable income using an accrual method 
        of accounting unless the Secretary approves another method,
            ``(3) agrees that it will satisfy the bond and independent 
        financial review requirements of subsection (c) on an ongoing 
        basis,
            ``(4) agrees that it will satisfy such reporting 
        obligations as may be imposed by the Secretary,
            ``(5) agrees to verify on such periodic basis as the 
        Secretary may prescribe that it continues to meet the 
        requirements of this subsection, and
            ``(6) agrees to notify the Secretary in writing within such 
        time as the Secretary may prescribe of any change that 
        materially affects whether it continues to meet the 
        requirements of this subsection.
    ``(c) Bond and Independent Financial Review Requirements.--
            ``(1) In general.--An organization meets the requirements 
        of this paragraph if such organization--
                    ``(A) meets the bond requirements of paragraph (2), 
                and
                    ``(B) meets the independent financial review 
                requirements of paragraph (3).
            ``(2) Bond.--
                    ``(A) In general.--A certified professional 
                employer organization meets the requirements of this 
                paragraph if the organization has posted a bond for the 
                payment of taxes under subtitle C (in a form acceptable 
                to the Secretary) in an amount at least equal to the 
                amount specified in subparagraph (B).
                    ``(B) Amount of bond.--For the period April 1 of 
                any calendar year through March 31 of the following 
                calendar year, the amount of the bond required is equal 
                to the greater of--
                            ``(i) 5 percent of the organization's 
                        liability under section 3511 for taxes imposed 
                        by subtitle C during the preceding calendar 
                        year (but not to exceed $1,000,000), or
                            ``(ii) $50,000.
            ``(3) Independent financial review requirements.--A 
        certified professional employer organization meets the 
        requirements of this paragraph if such organization--
                    ``(A) has, as of the most recent review date, 
                caused to be prepared and provided to the Secretary (in 
                such manner as the Secretary may prescribe) an opinion 
                of an independent certified public accountant that the 
                certified professional employer organization's 
                financial statements are presented fairly in accordance 
                with generally accepted accounting principles, and
                    ``(B) provides, not later than the last day of the 
                second month beginning after the end of each calendar 
                quarter, to the Secretary from an independent certified 
                public accountant an assertion regarding Federal 
                employment tax payments and an examination level 
                attestation on such assertion.
        Such assertion shall state that the organization has withheld 
        and made deposits of all taxes imposed by chapters 21, 22, and 
        24 of the Internal Revenue Code in accordance with regulations 
        imposed by the Secretary for such calendar quarter and such 
        examination level attestation shall state that such assertion 
        is fairly stated, in all material respects.
            ``(4) Controlled group rules.--For purposes of the 
        requirements of paragraphs (2) and (3), all professional 
        employer organizations that are members of a controlled group 
        within the meaning of sections 414(b) and (c) shall be treated 
        as a single organization.
            ``(5) Failure to file assertion and attestation.--If the 
        certified professional employer organization fails to file the 
        assertion and attestation required by paragraph (3) with 
        respect to any calendar quarter, then the requirements of 
        paragraph (3) with respect to such failure shall be treated as 
        not satisfied for the period beginning on the due date for such 
        attestation.
            ``(6) Review date.--For purposes of paragraph (3)(A), the 
        review date shall be 6 months after the completion of the 
        organization's fiscal year.
    ``(d) Suspension and Revocation Authority.--The Secretary may 
suspend or revoke a certification of any person under subsection (b) 
for purposes of section 3511 if the Secretary determines that such 
person is not satisfying the representations or requirements of 
subsections (b) or (c), or fails to satisfy applicable accounting, 
reporting, payment, or deposit requirements.
    ``(e) Work Site Employee.--For purposes of this title--
            ``(1) In general.--The term `work site employee' means, 
        with respect to a certified professional employer organization, 
        an individual who--
                    ``(A) performs services for a customer pursuant to 
                a contract which is between such customer and the 
                certified professional employer organization and which 
                meets the requirements of paragraph (2), and
                    ``(B) performs services at a work site meeting the 
                requirements of paragraph (3).
            ``(2) Service contract requirements.--A contract meets the 
        requirements of this paragraph with respect to an individual 
        performing services for a customer if such contract is in 
        writing and provides that the certified professional employer 
        organization shall--
                    ``(A) assume responsibility for payment of wages to 
                such individual, without regard to the receipt or 
                adequacy of payment from the customer for such 
                services,
                    ``(B) assume responsibility for reporting, 
                withholding, and paying any applicable taxes under 
                subtitle C, with respect to such individual's wages, 
                without regard to the receipt or adequacy of payment 
                from the customer for such services,
                    ``(C) assume responsibility for any employee 
                benefits which the service contract may require the 
                organization to provide, without regard to the receipt 
                or adequacy of payment from the customer for such 
                services,
                    ``(D) assume responsibility for hiring, firing, and 
                recruiting workers in addition to the customer's 
                responsibility for hiring, firing and recruiting 
                workers,
                    ``(E) maintain employee records relating to such 
                individual, and
                    ``(F) agree to be treated as a certified 
                professional employer organization for purposes of 
                section 3511 with respect to such individual.
            ``(3) Work site coverage requirement.--The requirements of 
        this paragraph are met with respect to an individual if at 
        least 85 percent of the individuals performing services for the 
        customer at the work site where such individual performs 
        services are subject to 1 or more contracts with the certified 
        professional employer organization which meet the requirements 
        of paragraph (2) (but not taking into account those individuals 
        who are excluded employees within the meaning of section 
        414(q)(5)).
    ``(f) Determination of Employment Status.--Except to the extent 
necessary for purposes of section 3511, nothing in this section shall 
be construed to affect the determination of who is an employee or 
employer for purposes of this title.
    ``(g) Regulations.--The Secretary shall prescribe such regulations 
as may be necessary or appropriate to carry out the purposes of this 
section.''.
    (c) Conforming Amendments.--
            (1) Section 3302 of the Internal Revenue Code of 1986 is 
        amended by adding at the end the following new subsection:
    ``(h) Treatment of Certified Professional Employer Organizations.--
If a certified professional employer organization (as defined in 
section 7705), or a customer of such organization, makes a contribution 
to the State's unemployment fund with respect to a work site employee, 
such organization shall be eligible for the credits available under 
this section with respect to such contribution.''.
            (2) Section 3303(a) of such Code is amended--
                    (A) by striking the period at the end of paragraph 
                (3) and inserting ``; and'' and by inserting after 
                paragraph (3) the following new paragraph:
            ``(4) if the taxpayer is a certified professional employer 
        organization (as defined in section 7705) that is treated as 
        the employer under section 3511, such certified professional 
        employer organization is permitted to collect and remit, in 
        accordance with paragraphs (1), (2), and (3), contributions 
        during the taxable year to the State unemployment fund with 
        respect to a work site employee.'', and
                    (B) in the last sentence--
                            (i) by striking ``paragraphs (1), (2), and 
                        (3)'' and inserting ``paragraphs (1), (2), (3), 
                        and (4)'', and
                            (ii) by striking ``paragraph (1), (2), or 
                        (3)'' and inserting ``paragraph (1), (2), (3), 
                        or (4)''.
            (3) Section 6053(c) of such Code is amended by adding at 
        the end the following new paragraph:
            ``(8) Certified professional employer organizations.--For 
        purposes of any report required by this subsection, in the case 
        of a certified professional employer organization that is 
        treated under section 3511 as the employer of a work site 
        employee, the customer with respect to whom a work site 
        employee performs services shall be the employer for purposes 
        of reporting under this section and the certified professional 
        employer organization shall furnish to the customer any 
        information necessary to complete such reporting no later than 
        such time as the Secretary shall prescribe.''.
    (d) Clerical Amendments.--
            (1) The table of sections for chapter 25 of the Internal 
        Revenue Code of 1986 is amended by adding at the end the 
        following new item:

``Sec. 3511. Certified professional employer organizations.''.
            (2) The table of sections for chapter 79 of such Code is 
        amended by inserting after the item relating to section 7704 
        the following new item:

``Sec. 7705. Certified professional employer organizations defined.''.
    (e) Reporting Requirements and Obligations.--The Secretary of the 
Treasury shall develop such reporting and recordkeeping rules, 
regulations, and procedures as the Secretary determines necessary or 
appropriate to ensure compliance with the amendments made by this 
section with respect to entities applying for certification as 
certified professional employer organizations or entities that have 
been so certified. Such rules shall be designed in a manner which 
streamlines, to the extent possible, the application of requirements of 
such amendments, the exchange of information between a certified 
professional employer organization and its customers, and the reporting 
and recordkeeping obligations of the certified professional employer 
organization.
    (f) User Fees.--Subsection (b) of section 7528 of the Internal 
Revenue Code of 1986 is amended by adding at the end the following new 
paragraph:
            ``(4) Certified professional employer organizations.--The 
        fee charged under the program in connection with the 
        certification by the Secretary of a professional employer 
        organization under section 7705 shall not exceed $500.''.
    (g) Effective Dates.--
            (1) In general.--The amendments made by this section shall 
        apply with respect to wages for services performed on or after 
        January 1 of the first calendar year beginning more than 12 
        months after the date of the enactment of this Act.
            (2) Certification program.--The Secretary of the Treasury 
        shall establish the certification program described in section 
        7705(b) of the Internal Revenue Code of 1986, as added by 
        subsection (b), not later than 6 months before the effective 
        date determined under paragraph (1).
    (h) No Inference.--Nothing contained in this section or the 
amendments made by this section shall be construed to create any 
inference with respect to the determination of who is an employee or 
employer--
            (1) for Federal tax purposes (other than the purposes set 
        forth in the amendments made by this section), or
            (2) for purposes of any other provision of law.
                                 <all>