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TexLaw, Attorney
Category: Legal
Satisfied Customers: 4430
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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Since March 0f 2011 my employer just informed that medicare

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Since March 0f 2011 my employer just informed that medicare and ss has not been taken out of my check. They asked if I was exempt and I said no. I have been witht his company since January 0f 2007. They went to a new system and somehow this new system messed up and they did not catch it until last month. They now want me to pay it back but not pretax like it was originally taken out. Can they take out this money without my permission?


Thank you for your question.

When an employer does not correctly withhold money from each of your paychecks to pay for medicare and social security (payroll taxes), they will be penalized for this failure by the IRS. While you as the employee still owe the IRS the taxes and you have to pay them, your employer cannot come back and withhold all the payroll taxes from your paycheck at the same time.

If they do this, you will need to file an unpaid wage claiim with the AZ Industrial Commission:

You need to also instruct your employer that they are liable to you for any late fees that you incur in not being able to pay all the tax to the IRS because it is their responsibility to withhold these taxes and they cannot do it retrospectively.

Please let me know if you have any questions. Please also kindly consider rating my answer positively so that I am compensated by the website for my work on your question. Rating does not cause an additional charge and does not prohibit you from further discussing your questions with me.

Best Regards,


Customer: replied 4 years ago.

so it would be better for me to pay the IRA myself rather than them taking out money from my pay every two week, again, this is not pre taxed. They also agreed to pay half of 2011 and 2012 but won't half 2103. Are they being willing to pay half because it was there mistake and since it could come out of my pay after taxes? Not sure which is the best way to go. Morally, shouldn't they just pay all of this since it was their mistake and not mine?

Look at it this way, your pay check over the past few years was much larger than it should have been. You are legally obligated to pay the tax and are under a legal duty to look at your pay check and determine for your self whether the taxes are being withheld. If they are not, you are supposed to either correct the problem or save the money and pay the taxes quarterly. Morally, I agree with you that it is their responsibility.

As it stands right now, you will owe all of 2011-2013 payroll taxes. If they are offering to pay for half of your liability for 2011 and 2012, that's a good offer as it will reduce the amount you owe in the end. However, the fact that they are going to withhold more than normal from your checks from now on is not fair or right. They are probably attempting to pay the amount that they should have withheld and get away without being penalized.

So, in the end, it's up to you whether you want to participate with this or not. If they pay half of what you owe over 2 years, that would be a savings to you in the end. However, they shouldn't withhold anything other than the normal withholding amount from your paycheck (no matter which way you look at it, your pay check will go down because they will now be withholding taxes).

Customer: replied 4 years ago.

ok I am starting to see that i have no way out of paying this back and they are paying half with the exception of 2013 first three months.

They did immediatly pay there half and my half to medicare and ss as soon as they relized there mistake. The small amount they withhold every two weeks did not make a big difference on my pay and with me not working the same amount of hours every two weeks, I did not notice my check being larger than normal. Yes,l they were originally going to take 500.00 out of my check ---while I was on vacation....then take out another 500.00 the next pay period. I would not have been able to make my car payment if that had happened. I now see, that they can not ask me to pay more than what they would have originally taken out, is this correct?

That's exactly correct.
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Customer: replied 4 years ago.

They have agreed to take out a reasonable amount every pay check however now they are going to take my pay increase (I get this in one big check every year) and they want to take some out of my bonus until this is all paid back to them. Can they legally take this extra money...that i count on away from me?

Thanks for following up with me.

This is for money that you owe anyway. Now, you can tell them that you don't want them to take it out and that you will be responsible for the amount due later on. They cannot legally deduct more from your check than is currently due for the current amount of payroll tax. However, you are going to have to pay it at some point.