Administrative Rules of Montana
Department 24 - LABOR AND INDUSTRY
Chapter 24.35 - INDEPENDENT CONTRACTORS
Subchapter 24.35.1 - Independent Contractor Exemption Certificate
Rule 24.35.112 - INDEPENDENT CONTRACTOR EXEMPTION CERTIFICATE APPLICATION AFFIDAVIT

Universal Citation: MT Admin Rules 24.35.112

Current through Register Vol. 18, September 20, 2024

(1) On the form provided by the department, the applicant shall provide all information designated as required. The form must be notarized, and the applicant must state, under oath, the veracity of all information on and attached to the form.

(2) The applicant shall also submit supporting documentation to prove applicant's qualification for an ICEC. The department has the discretion to assess the reliability of the documentation and award points for each item of proof as outlined by this rule. Each item of documentation submitted may count toward points in more than one category. No more than two items of proof may be submitted under each category. To qualify for an ICEC, an applicant's documentation must be awarded a minimum of 15 points by the department for each independently established trade, occupation, profession, or business listed on the ICEC application.

(a) The department may award up to ten points for proof that the applicant has current workers' compensation, unemployment insurance, and Department of Revenue accounts for employees in each independently established trade, occupation, profession, or business. The department may award up to six points for proof of two insurance policies or accounts and may award up to three points for proof of one insurance policy or account.

(b) The department may award up to six points for each of the following proofs for each independently established trade, occupation, profession, or business:
(i) contract or memo of understanding that demonstrates applicant's independent contractor status. If the applicant can end a contract at any time without incurring any liability for failing to complete the project that is the subject of the contract, the department cannot award points for the contract under this rule. Separate contracts with different hiring agents may qualify for a maximum of six points. Each contract must include:
(A) payment based on a completed project;

(B) beginning and ending dates of the contract;

(C) liability for failure to complete the project;

(D) identification of who provides the materials and supplies;

(E) signatures by both parties; and

(F) defined body of work, complete project, or end result;

(ii) signed and dated list of equipment and tools owned or controlled by the applicant with approximate values. The equipment or tool list may be documented by a rental or lease agreement, county documents verifying the business equipment tax paid, or other means;

(iii) commercial general liability insurance policy or bonding;

(iv) most recent business tax forms filed within the past three years;

(v) IRS Form 1099s (miscellaneous income) from multiple hiring agents or two quarterly self-employment tax payments (IRS form 1040ES) within the past three years;

(vi) trucking company lease agreement; or

(vii) certification for Indian Preference by a federally recognized Indian tribe under the laws of that tribe.

(c) The department may award up to three points for each of the following proofs for each independently established trade, occupation, profession, or business:
(i) partnership or limited liability partnership agreement signed and dated by all partners that demonstrates:
(A) intent to form the partnership;

(B) contribution by all partners;

(C) a proprietary interest and right of control by the application; and

(D) the sharing of profit/loss;

(ii) current business license or building permit;

(iii) certificate of registration for the business entity issued by the Montana secretary of state;

(iv) articles of incorporation, annual report, articles of organization, or other documentation that verifies the applicant is an officer in a corporation, a manager in a manager-managed limited liability company, or a member of a member managed limited liability company;

(v) proof of ownership, home occupation license, rental or lease agreement with a statement that the property may be used for business or commercial use, or proof of IRS filing for use of home as a business;

(vi) educational certification for unlicensed occupations relevant to the trade, occupation, or profession for which the applicant seeks the ICEC;

(vii) current professional license relevant to the trade, occupation, or profession for which the applicant seeks the ICEC;

(viii) membership in a relevant professional association or affiliation;

(ix) current motor carrier (MC) authority number in applicant's personal or business name;

(x) business bank account; or

(xi) copies of advertising in a newspaper, phone book, website on the internet, or other venue.

(d) The department may award up to one-and-one-half points for each of the following proofs for each independently established trade, occupation, profession, or business:
(i) federal employer identification number (EIN);

(ii) Dunn and Bradstreet number;

(iii) telephone or utility bill(s) in the business name;

(iv) credit card(s) or purchase account(s) in the business name;

(v) preprinted business invoices, business cards, or brochures;

(vi) proof of order(s) for printed hats, shirts, or other promotional items for the business;

(vii) proof of business advertising using a vehicle sign, yard sign, bulletin boards, or posted flyers;

(viii) invoices billed to the business name or a bid proposal or estimate, either of which must include the address and phone number of the recipient;

(ix) vehicle registration(s) in the business name; or

(x) international fuel tax account number (IFTA) in the applicant's personal or business name.

(e) The applicant may submit any other supporting documentation. The department has discretion to assess the reliability of and determine the point value of any documentation not listed in this rule.

AUTH: 39-3-202, 39-3-403, 39-51-301, 39-71-203, 39-71-417, MCA; IMP: 39-3-201, 39-3-402, 39-51-201, 39-51-204, 39-71-417, 39-71-418, 39-71-419, MCA

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