A tax label and a licensing duty
A licensee can be an independent contractor for tax purposes and a supervised licensee under license law at once. Separate systems.
The 26 U.S.C. 3508 safe harbor
A licensee is a statutory nonemployee for federal tax purposes when three prongs are met:
- The individual is a licensed real estate agent.
- Substantially all remuneration is directly related to sales or other output rather than to hours worked.
- The services are performed under a written contract providing the individual will not be treated as an employee for federal tax purposes.
Setting one's own hours and paying one's own expenses are IRS common-law indicators, which is why they tempt, but neither is a prong of 3508.
Supervision survives the classification
26 U.S.C. 3508 is a federal tax safe harbor only. Georgia rule: the broker must supervise every affiliated licensee regardless of tax status, under O.C.G.A. 43-40-18 and GREC Rule 520-1-.07.
The common misconception is that supervising destroys the classification. It does not: a broker may direct what must be done to comply with law, such as required forms and trust account procedures, without controlling how, when, and where routine work is done. No private contract waives a statutory licensing duty.
Antitrust: the per se violations
Sherman Act Section 1, 15 U.S.C. 1, condemns agreements among competitors. Two categories dominate:
- Group boycott. Two competing brokers who agree not to cooperate with or show a discount brokerage's listings commit a per se violation. A casual oral agreement at a closing is enough; no writing and no proof of market harm is needed. One firm acting unilaterally is lawful.
- Price fixing. "The standard rate in this area is 6%, and no firm here charges less" implies an agreement among competitors on price. Safer: quote the firm's own rate and add that commissions are negotiable.
Treble damages
Worked example: sellers prove a conspiracy cost them $80,000,000 in excess commissions. Under Clayton Act Section 4, 15 U.S.C. 15, they recover treble damages: 3 × $80,000,000 = $240,000,000, plus costs and fees.