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My employer withheld social security taxes from my check for…

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My employer withheld social...

My employer withheld social security taxes from my check for 4 years but never pay them

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Submitted: 6 months ago.Category: Social Security
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11/27/2017
Social Security Expert: SSA.Help4u.168, Accountant replied 6 months ago
SSA.Help4u.168
SSA.Help4u.168, Accountant
Category: Social Security
Satisfied Customers: 4,712
Experience: Tax Accountant
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Social Security Expert: SSA.Help4u.168, Accountant replied 6 months ago

I am gathering the information for you. I will get back to you shortly. Thank you for your patience.

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Customer reply replied 6 months ago
Ok
Social Security Expert: SSA.Help4u.168, Accountant replied 6 months ago

The IRS will initially go after the employer for the employer share of the FICA taxes, however, if the IRS is unable to retrieve the taxes from the employer, the employee will ultimately be responsible for paying his or her share of the FICA taxes. SEE BELOW:

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Employees who are concerned that their employer is improperly withholding or failing to withhold federal income and employment taxes should report their employer by contacting the IRS at 1-***-***-****. In cases where the employer withheld employment taxes but failed to deposit them, or failed to issue W-2s, the employee should contact the employer to request the W-2. If the employee is unable to secure a W-2 from the employer, the employee should complete and attach Form 4852, Substitute for W-2, to their tax return using the best information available to calculate the wages and the withholding. This information can often be secured from pay stubs.

In addition, if the employer refuses to withhold employment taxes from these wages and the IRS is unable to collect the employment taxes from the employer, the employee still has the responsibility to pay income tax and is ultimately responsible for his/her share of the FICA tax.

REFERENCE SOURCE:

https://www.irs.gov/compliance/criminal-investigation/employer-and-employee-responsibilities-employment-tax-enforcement

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Customer reply replied 6 months ago
what happens to the taxes the employer withheld
Social Security Expert: SSA.Help4u.168, Accountant replied 6 months ago

The IRS will aggressively go after the employer for these taxes. If they are unable to retrieve the taxes from the employer, the employer could be criminally prosecuted. SEE BELOW:

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FAILURE TO PAY: HOW BAD CAN IT GET?

It is important for taxpayers to understand that the IRS is aggressive in assessing the trust fund penalty. Payroll taxes are the government’s money, and when the taxes are not paid, the government believes those who have not paid are taking its money. The government does not take this lightly and will not relent in its efforts to collect the amounts it is owed. For a business with numerous employees, unpaid trust fund taxes add up quickly, and the trust fund penalty consequently assessed against a responsible person can be huge. In addition, the penalty is not dischargeable in bankruptcy.

Even worse, failing to pay trust fund taxes can lead to criminal charges. Under Sec. 7202, a willful failure to pay over or collect tax is a felony punishable by up to a $10,000 fine or five years in prison, or both. However, the IRS reserves criminal charges for the most egregious cases, usually where the responsible person owned the business and diverted the money for his or her own personal use, rather than situations where an owner or other responsible person in a business that was facing hard times used the money to pay other creditors in a misguided attempt to keep the business afloat. As the cases discussed below show, in a successful criminal trust fund prosecution, the responsible person is usually sentenced to prison time and required to pay restitution.

CRIMINAL PROSECUTIONS

A person who is a responsible person under Sec. 6672 can be criminally liable under Sec. 7202. Thus, Sec. 7202 can apply to corporate officers, partnership members, employees, and others responsible for collecting and paying over of withholding taxes. As noted above, however, the IRS generally targets business owners who have used funds for their own benefit that they should have used to pay employment taxes.

Courts have held that Sec. 7202 creates three obligations the person must meet. The person must (1) collect, (2) account for, and (3) pay over the trust fund taxes. If the person does not do all three of these things, he or she has violated Sec. 7202. Defendants have argued that the last two elements should be considered one element and that a person who has collected the tax must both not account for and not pay over the taxes to be guilty. However, the courts have found that the plain language of the statute does not support this interpretation.

Under Sec. 7202, willful means a voluntary, intentional violation of a known legal duty. The IRS does not have to prove that the person had bad faith or a bad purpose. In addition, the financial circumstances of the person or the company he or she is acting for are not taken into account in determining whether the failure to pay the tax was willful.

REFERENCE SOURCE:

https://www.journalofaccountancy.com/issues/2014/jun/20149645.html

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