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Ask Lane Your Own Question
Category: Tax
Satisfied Customers: 12055
Experience:  Law Degree, specialization in Tax Law and Corporate Law, CFP and MBA, Providing Financial & Tax advice since 1986
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Do I have to pay back SS received from Japan to the SSA?

Customer Question

My wife was told to pay back the social security money she received and receives from Japan to the SSA in the U.S.. It has to do with the Windfall Elimination Provision that the SSA uses to calculate the social security payments. The question is, do we have any legal options in the state of New York State?. They told us to pay close to $24K within a month. I’m in the process to request a waiver.
Submitted: 9 months ago.
Category: Tax
Expert:  Lane replied 9 months ago.
I'm so sorry - but the WEP is not something that can be contested unless you think that it does not apply.
The Windfall Elimination Provision is a statutory provision in United States law which affects benefits paid by the Social Security Administration under Title II of the Social Security Act - enacted as part of the 1983 Social Security Refinancing Act, designed to shore up the financing of the Social Security Trust Fund.
The bottom line there, is that if your wife is receiving benefits from any work where she didn't pay into Social Security, the WEP applies. (The exception to that is when she has 30+ years under Social Security as well.)
You are doing the right thing in requesting the waiver. Although, they are aggressive in identifying these non-social security pensions, they grand these waivers often.
One thing to watch - we have had several, and seems to be growing sentiment toward, items of federal legislation introduced to eliminate the WEP:
Please let me know if you have any more questions.
Customer: replied 9 months ago.
Thank you. Per to the SSA, an overpayment must be refunded, unless:
1. The overpayment was not your fault. In our case I cannot see how it could possibly be our fault.
2. We would not be able to cover our living expenses, or recovery would be unfair for some other reason.
We are both retired so our income is low, though I cannot say that we would starve, we would most likely have to borrow
the money which would make our financial situation tough in the future. But about the fairness question, my wife spent about a year to get the money from Japan. And now for the SSA to say, thank you very much, we'll take that - all of it.
That seems very unfair to me. How do you estimate our chances for a waiver?
Expert:  Lane replied 9 months ago.
On number 1, I've never in my 30 years seen them grant a waiver for repay on WEP or GPO based on the fault argument. (I'm not saying it's fair) but they will use the ignorance of the law is not an excuse argument. And they've done a good job of putting out publications such as this: AND putting that disclaimer on all of the statements you've received.
As it relates to number 2, if you can show that you would have to borrow to pay it back that helps A LOT. Given the size of the amount, I think you have a good chance.
Customer: replied 9 months ago.
Thank you very much!
Expert:  Lane replied 9 months ago.

You're very welcome.