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I have a problem that my former employer fails to send me…

I have a problem that...
I have a problem that my former employer fails to send me the w2 form. It is due January 31 and they have made several promises to send it by the end of the week, but never did.It is very suspicious that I was employed off the books. However, is there a way to obtain it.
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Customer reply replied 4 months ago
They keep promising to send it by the end of the week and it has been going on for almost two months, but I never get it. Do you think it is possible that if you employ someone off the books, the w2 form may never be restored?
Answered in 15 minutes by:
3/25/2018
Attorney Wendy
Category: Employment Law
Satisfied Customers: 1,387
Experience: Member at Keefer & Keefer LLC
Verified

Hello. My name is ***** ***** I am an attorney. There are a couple of options for you at this point. If your employer filed for an extension of the January 31 deadline to file and provide W-2s and that extension was granted and they are approved to e-file those documents, they may actually have until April 2nd. That said, late filing of W-2s is not the norm. If you have requested your W-2 and still do not have it, you can contact the IRS at(###) ###-#### You will need your employer's name and address, including zip code, your personal information including social security number, and an estimate of the amount of wages and withholding you had for 2017 (this should be noted on the pay stub provided with your latest pay check from 2017). You could call now or you could wait until April 2nd/3rd or ask your employer if they've received an extension. Of course, that puts you up against the filing deadline.

If you have been receiving the pay stubs required with each paycheck showing the tax and other withholdings, you likely are not being paid off the books. If you do not receive that itemized information in some way, and you have concerns about this, ultimately reporting the issue regarding the W-2 would likely uncover that issue (e.g., if the IRS has not record of your employer seeking an extension or filing W-2s now or in past years, or if there is no extension when they reach out to the employer that fact is uncovered).

I am sure this is frustrating. And, I hope this information helps. If you need further assistance, please reply to this email. If I answered your question and provided excellent service, I would greatly appreciate your 5 star rating at this time.

Please note: This information is for educational purposes only and is not legal advice. No course of action is being proposed and no attorney-client relationship or privilege has been formed as a result of this conversation.

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Customer reply replied 4 months ago
Thanks, ***** ***** give you more info, I never received any paystabs, just email confirmations how much they were going to pay me and what is being deducted. Those don't count as paystabs, from what I understand. Also, last fall I was filing for unemployment and the unemployment office didn't have any record of me working there. They had to open an investigation and they contacted that employer who confirmed that I worked for them. Now, they keep promising that they would send me by the end of the week but they have broken their promise several times. Would it be possible that they are just hiding the fact that they are just unable to generate that form because they employed me off the books?

That is certainly possible. Contacting the IRS may be the right course of action, if for no other reason than to protect yourself.

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Customer reply replied 4 months ago
I would like to close it and give you credit, but I have few questions left. Let me ask them in one scoop and afterwards I will submit the rating.1. I recall that company was saying that they were supposed to employ me as w2, but by mistake they employ me 1099. They are an Indian company working out of Canada , so they don't know well employment details in the US. Now they are telling me that the senior accountant is working on my form. Can they really restore a form that way or it is impossible?2. As said, when I filed for unemployment, the unemployment commissioner office did not have any record of me working there and they opened an investigation. The employer gave them all the facts and I was approved to receive unemployment benefits. Does it help to prove that I was employed on w2? In other words, am I right that you are not eligible to receive unemployment, if you worked 1099 and have not paid taxes yet.3. I already wrote to the IRS investigation department, but they said that they don't start any investigation until April 5. However, will they obtain something from the unemployment office. In other words, is Unemployment Commissioner and IRS somehow related?

1. It is possible for them to correct your classification. The important thing for you to know is that they can only classify you as a 1099 independent contractor if your job meets certain tests: (1) Behavioral - you have to set your own hours and methods of work to be 1099; (2) financial - you have to either have all your equipment provided to do the job or get reimbursement for expenses; and (3) agreement/relationship - your employer must have treated you as an independent contractor meaning you agreed that was your status. Some jobs cannot be independent contractor no matter what you and the employer agree. I suspect that is the case with you.

2. If you received unemployment you are an employee (W-2) and not an independent contractor (1099). So, yes, that is helpful if not proof of employee/W-2 status.

3. They are not related but they will look at the same information and if you got unemployment you had to have been an employee. Independent contractors/1099 relationships are not entitled to unemployment.

I would obviously be grateful for the rating, but also know that even after you rate me, if you just reply to this email with other questions I am happy to answer them.

Attorney Wendy
Category: Employment Law
Satisfied Customers: 1,387
Experience: Member at Keefer & Keefer LLC
Verified
Attorney Wendy and 87 other Employment Law Specialists are ready to help you
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Customer reply replied 4 months ago
Thanks and I rated you, so you should get a credit. Few follow ups, if I may.1. They did not employ me as a w2 by mistake. Whether I classify as 1099 or not is not relevant, since I was supposed to be employed as a w2. They also said that they overpaid me, but they wont ask for any money back. Now, do you think that it is still possible to generate w2 form, even though I was not employed as a w2 by hiring a lawyer and/or making an accountant do some actions? In other words, when they say that they will send it by end of week, but never send and that has been going on since early February, do you suspect them working on the form or they just say that because it is not possible to reverse the past and have the form available?2. Even if the IRS investigates them, they can't reverse the fact that I was not a w2 employee. How can they make the company generate the form.
3. The IRS should open an investigation early April. Do you expect them to be very slow, since they are part of Fed. Government?

It is impossible for me to say if they are working on it or not. But if you do not receive it the IRS should help. If they are just trying to buy time because they have made a mistake the IRS is a good place to start. I wish I could say for sure what they are up to; you just need to take care of you and make sure you request the W-2 from them and then, if necessary, from the IRS.

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Customer reply replied 4 months ago
After I describe the whole situation, do you see any way for them to make a correction to my record and still generate the form?
Customer reply replied 4 months ago
also, I am now thinking that the IRS can only punish the company but can't make them generate the form, since I was not employed as w2 at that time. Do you agree with me?

It is true the IRS may impose fines, but they should also be able to assist you with a W-2. If you were improperly treated as an independent contractor or you were paid off the books, the situation could get complicated, as the IRS would want to see how much you were paid and how much in income taxes, Medicare, SS, etc. should've been paid to them from your employer via deductions and also from your employer for their portion of some of those taxes. If they treated you as a 1099 contractor and not an employee then you may want to consult a local accountant or attorney to help you figure out how to get the situation corrected if you worked for them prior to 2017, as your taxes for those prior years may need to be amended. You likely will have paid more in taxes if you were treated as 1099 than if you are W-2, though everyone's situation is different.

You are correct that the IRS could move slowly. An accountant would be able to figure out how and what you should do for your required income tax return in April to provide as much protection for you if you do not receive a W-2 but should have.

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Customer reply replied 4 months ago
I only worked for them for two months in 2017. I also asked you if you see any way they can correct it by hiring a lawyer or an accountant? I was wondering if that is what they have been doing

Yes, they could correct it. That is possibly the delay after you asked.

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