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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 110421
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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My husband was terminated after38 years due to astore closing.

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My husband was terminated after38 years due to astore closing. He was owed 84 hrs in vacation pay which he was told would be paid at the ONSET OF HIS SEVERANCE. We received the check at the conclusion of his severance and the employer withheld trip
le FICA. Is there any way to recover the tax overpayment before next years income tax date?
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

What state are you located in?
Customer: replied 3 years ago.


Thank you for your response.

If the severance was paid in 2013 and FICA was withheld as it should not have been on the severance pay, then a refund can only be claimed when filing taxes for this tax year according to the IRS. If the taxes were withheld in 2012, you would have to file an amended return now to seek a refund of those taxes.

Under the Internal Revenue Code, “wages” are subject to income tax withholdings and FICA taxes. Severance for payments other than wages are not subject to FICA (see: United States v. Quality Stores, Inc., (6th Cir. 2013)).

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Customer: replied 3 years ago.

So if I understand correctly, severance pay is not subject to taxes? what possible benefit would an employer have by deducting triple FICA? I just think something is to their advantage by doing this and no regard to the employee who is now jobless. Thank you

Thank you for your response.

There is a split amongst the court of appeals circuits right now regarding when FICA must be paid. The case I gave you above was the latest ruling saying that it is only due on actual wages. Thus, employers are being cautious and deducting FICA and then letting the employees file for a refund and the employers file for a refund of their portion and this matter is still winding its way up to the US Supreme Court to settle the split amongst the circuits, so there is no clear and decisive ruling on it yet.
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