Owner Who Leased Land to Company and Worked as an Independent Contractor for an Unrelated Entity Held Personally Liable for Company?ÇÖs Withdrawal Liability

Nagy Ready Mix (the ?Ç£Company?Ç¥) withdrew from a multiemployer pension plan after the Company ceased employing workers covered by a collective bargaining agreement.?á The pension plan filed suit to collect withdrawal liability from the Company; Mr. Nagy, the Company?ÇÖs owner; and two affiliated companies under his common control.?á While passive investors are not ?Ç£trades or businesses?Ç¥ for withdrawal liability purposes, an individual who engages in an unincorporated trade or business under common control with the withdrawing employer is personally liable for the withdrawal liability.?á The Seventh Circuit Court of Appeals cited two grounds for imposing personal liability on Mr. Nagy.?á First, the court held that Mr. Nagy was personally liable for the withdrawal liability because he leased property to the Company.?á In prior opinions, the court held that leasing property to a withdrawing employer is ?Ç£categorically?Ç¥ a trade or business.?á Second, the court held that Mr. Nagy was liable for the withdrawal liability because his work as an independent contractor providing management services to a business unrelated to the Company, a local country club, also qualified as an unincorporated trade or business that was under common control with the Company.?á The court reasoned that an individual working as an independent contractor, as opposed to an employee, could be the sole proprietor of an unincorporated trade or business.?á To determine whether Mr. Nagy was an independent contractor or employee of the country club, the court considered the degree of autonomy Mr. Nagy had in the employment relationship as well as the manner in which he was paid and filed his taxes.?á The court found it highly persuasive that the country club paid Mr. Nagy an hourly wage, not a regular salary; the country club did not withhold taxes; the country club reported his compensation on Form 1099-MISC, not Form W-2; and Mr. Nagy reported this income on Schedule C of his tax returns, which schedule applies to sole proprietors. Central States, Southeast & Southwest Areas Pension Fund v. Nagy, No. 11-3055 (7th Cir. Apr. 22, 2013).