Current through Register Vol. 63, No. 9, September 1, 2024
(1) For purposes of this rule:
(a) "Business entity" includes a sole
proprietorship, a partnership, and an unincorporated limited liability
company.
(b) "Principal" means an
individual with significant authority in a "business entity" (see subsection
(a) of this section), including a sole proprietor, a general partner in a
partnership, or a member or manager of an unincorporated limited liability
company.
(2)
Notwithstanding any other sections of this rule:
(a) Homecare workers (see OAR
411-031-0020) paid by the
Department are not self-employed.
(b) Providers considered an employee of an
Aging and People with Disabilities, Office of Developmental Disabilities
Services, or Oregon Health Authority benefit recipient, such as Independent
Choices Program (see OAR
411-030-0100) providers,
Personal Support Workers (see OAR
411-375-0000), and Personal Care
Attendants (see OAR 410-172-0776) are not
self-employed.
(c) Child care
providers (see OAR 414-175-0080) paid by the
Department, adult foster home providers (see OAR
411-050-0602) paid by the
Department, realty agents, and individuals who sell plasma, redeem beverage
containers, pick mushrooms for sale, or engage in similar enterprises are
considered self-employed.
(d)
Self-employment does not include non-business activities such as property
rentals (see OAR 461-145-0252) or renting a room
out of the financial group's primary residence (see OAR
461-145-0340).
(3) Self-employment means active
engagement in one's own business, trade, or profession, rather than earning a
salary or wage paid by an employer or maintaining a passive ownership interest
in a business entity. An individual is considered self-employed if the
individual meets the criteria in subsection (2)(c) or section (5) of this
rule.
(4) A
principal (see subsection (1)(b) of this rule) of a
corporation or incorporated limited liability company cannot be considered
self-employed unless the criteria in either subsection (a) or (b) are met. All
other payments for working or performing services for the corporation or
holding corporate office are treated in accordance with OAR
461-145-0089 and
OAR461-145-0130.
(a) The individual files taxes for the
incorporated business entity as self-employed on their personal taxes, rather
than as a corporation.
(b) The
individual does not file taxes and meets the criteria in section (5)(c) of this
rule.
(5) Except as
provided in OAR 461-145-0089(3),
an individual is self-employed for the purposes of this division of rules if
the individual meets the requirements of one or more of (a), (b), or (c):
(a) Files taxes as self-employed for their
business on their personal taxes.
(b) Is considered an independent contractor
by the business.
(c) Meets all the
following criteria:
(A) Is not required by the
business to complete an IRS W-4 form.
(B) Is not required to pay federal income tax
or FICA payments from their paycheck(s).
(C) Liability or workers' compensation
insurance for the individual is not paid by the business.
(D) Meets at least one of the following:
(i) Creates or provides the products or
services they sell, or
(ii) Sets
the price for the products or services they sell.
(E) Is responsible for the business expenses
and losses; and
(F) Receives
profits from the business, or would receive profits from the business but the
business is not making a profit.
(6) For a principal or any individual with an
ownership interest in a business entity who cannot be considered self-employed
using the criteria in this rule:
(a) See OAR
461-145-0089 for individuals who
are not actively working in the business entity to determine how to treat
income and resources.
(b) For
individuals who are actively working for the
business entity
but do not have significant authority or responsibility for its success or
failure:
(A) See OAR
461-145-0130 to determine how to
treat income.
(B) See OAR
461-145-0089 to determine how to
treat resources.
(7) For an individual who is considered
self-employed:
(a) See OAR
461-145-0920 and
461-145-0930 to determine how to
treat income from self-employment.
(b) See OAR
461-145-0600 to determine how to
treat resources used in self-employment.
Statutory/Other Authority: ORS
409.050,
411.060,
411.070,
411.404,
411.706,
413.085 &
414.685
Statutes/Other Implemented: ORS
409.050,
411.060,
411.070,
411.404,
411.706,
413.085,
414.685, ORS
409.010,
411.400 &
414.839
