Residents: Students or Employees?

Since 1997, several teaching hospitals haveengaged in a running skirmish with the IRS overthe tax status of resident physicians and whetherthe hospitals must make contributions for them underthe Federal Insurance Contribution Act(FICA). For the past several years, theseteaching hospitals have sought toexempt residents under the tax clause thatexempts student employees from FICAtaxes. In addition, the hospitals have askedfor refunds of more than $162 million inFICA taxes that have already been paid.

The IRS recently announced aproposed regulation that would clarify the studentemployment exemption and, in the process, removethe exemption for most residents. The agency alsoannounced that it would come up with a procedurewithin 90 days for resolving any outstandingappeals. The proposed regulation wouldapply the student exemption onlywhen education predominates overemployment in the relationship betweenresident and hospital. It would not applyif an employee is a professional, works morethan 40 hours a week, and is eligible to participatein a retirement benefits program.