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socrateaser, Lawyer
Category: Employment Law
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Experience:  Retired (mostly)
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In 2008 I was a full year resident of Pennsylvania based on

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In 2008 I was a full year resident of Pennsylvania based on the PA guidelines for residency. In 2007 I had been a resident of CA. My wife and I both lived in PA for the enitre year in 2008. However, our employers filed W2 with PA reasidency. my employer will not issue a W2c showing we lived in PA prior to the date that we sold our CA house. I ahve provided them proff of our rental apartment and PA guideliens on residency. It is my udnerstanding that homeownership does not determine residency. We filed our taxes for 2008 as PA residents but did not get a W2c. CA now wants their taxes from 2008 eventhough I did not live in or work in CA. They have actually taken the step of witholding this years return (We now live in CA again after 3+ yrs in PA) and have refused my appeals without a W2c. CA is requesting additional funds on top of what they withheld. My wife's employer has issued a W2 c for her. My former employer is refusing to issue a W2c. What recourse, if any, do I have at this point.

If you have exhausted all appeals with the FTB, then your next appeal would be to the California Board of Equalization (BOE). If that appeal fails, then you would have to pay the tax due, and then file an appeal with the California Superior Court. For a discussion of BOE appeals, see this link.

If your employer is located in California, you could subpoena the employer's custodian of records (fancy name for person who is legally required to do the employer's record archiving) to appear and testify to what it knows about your place of residence during the 2008 tax year. And, you could force the custodian to bring all of your various paperwork with contact info, showing that you were residing in Pennsylvania during that time period. If the employer is in PA, then you could probably get the records via subpoena, but not the personal appearance and testimony of the custodian.

Alternatively, you could sue the employer for fraud, on grounds that the employer's misrepresentation on the W-2 has induced actual reliance by the FTB and by you, and you have been damaged as a consequence. Your damages would be whatever you owe the FTB. However, you would not be entitled to attorney's fees, so this could be a bit of a losing money proposition -- though a nasty letter from a lawyer threatening to sue, may get the employer to adjust its form, given that the employer also would have to pay it's own attorney's fees (and, for a fraud claim, I could see $10-15,000 burned by each side in litigating the issue. Probably not worth fighting over, so that letter could move the mountain and get you the W-2c.

For a civil litigation attorney referral, see this link.

Hope this helps.
Customer: replied 3 years ago.

On my last appeal to the FTB I missed their deadline. So, they stated that the appeal was refused. The BOE has also stated that they do not have jurisdiction because I missed the last deadline and the case is no longer with FTB. We were on time for all previous appeals. At this point, can I still file an appeal with California Superior Court? Is it possible to refile using a form 4852 after filing a complaint about the PA employer?

The appeal deadline is jurisdictional. There is no ability to extend. And, it's too late to file an amended tax return (three years from due date).

It appears to me that your only recourse would be to sue the employer to recover the amount of taxes you owe. If that's $10,000 or less you could sue in small claims court without a lawyer.

Hope this helps.
Customer: replied 3 years ago.

On the CA website it looked like 3 yrs from due date or 2 yrs from when paid. Since we just paid part with the withheld money and still owe some, are we able to file an amended return after we pay it in full (wihin 2 yrs of paying)?


California's 540X statute of limitations is different from the IRS (four years from date return was due, or one year from date of overpayment whichever is later). You haven't made an overpayment, and your four years has probably expired, if return was due April 2009 -- four years is April 2013.

You may be able to file an "informal claim for repayment," once you file the amended return. To file an informal claim for refund, write “INFORMAL CLAIM” in red ink at the top of the first page of your completed Form 540X and mail the claim to:

PO BOX 1468
If your claim is rejected, then you would have a new opportunity to appeal to the BOE or Superior Court.

Hope this helps.
Customer: replied 3 years ago.

Do I submit the original w-2 with the address corrections made by hand or do I need to get a form 4852 in order to file the 540x?

You need credible evidence of the corrected W-2. The employer must file a corrected document and send you a copy. If the employer refuses to do so, you can try using a form 4852 -- which may trigger an audit of the employer, and/or you by the IRS.

The FTB wants a corrected W-2c. If I were an auditor for the FTB, I wouldn't accept a W-2 with handwritten corrections, because I would have no way to know if they were written by the employer or by the taxpayer.

Hope this helps.
Customer: replied 3 years ago.

That is what I thought, but gets me back to the issue that the previous employer will not provide a W-2c based on the date we closed on the sale of the CA house. The handwritten idea was soemthing i found online. It sounded like a bad idea. Per my reading of all the guidelines, the date of sale does not matter it is when we established residency in PA. So, it sounds like my only options are to sue the previous employer for a corrected W-2c(or threaten to sue) or request a 4852 and be open to an audit.

The handwritten idea was something i found online.

A: Uh-huh. Have you ever seen this commercial? Speaks volumes.

Per my reading of all the guidelines, the date of sale does not matter it is when we established residency in PA.

A: Cal. Rev. & Tax. Code 17014 describes the law of residency for income tax purposes. But, see, Whittell v. Franchise Tax Bd. (1964) 231 Cal.App.2d 278, 41 Cal.Rptr. 673 (“Residence” denotes any factual place of abode of some permanency, that is, more than a mere temporary sojourn and while a person can have in law only one “domicile,” he may have several residences for different purposes including more than one residence for tax purposes.  West's Ann.Rev. & Tax.Code, §§ 17014–17016.)

Hope this helps.
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