[tyoshida]

Dear all- I would like to ask all your favors if you know good tips for this issue...

I was full time employee of the employer "J" from May 2000 through August 2008.
After I left J and became a freelancer, we found out that J didn't pay half part of social security tax and medicare tax for about 8 years, and they didn't deduct another half part of these 2 taxes from my pay stubs for same 8 years.

My accountant told me that J has responsibility to collect/pay entire(past 8 years) these 2 taxes. But, a accountant of J told me that J will collect/pay half part of 2 taxes just like J had to do originally, and I also will have to collect/pay my half part of 2 taxes. So, I am confused now.

1. Which is truth? My accountant? Or J's accountant? Is there any legal document that can answer for this kind of issue? If there is, I can show and prove truth to both of accountants.
2. If what J's accountant said is true, the total amount I have to pay(half part of 2 taxes) will be too big to pay off once & soon. Is there any way to hold, break up or avoid my part of the payment because this issue started from J's mistake?
3. I would like to know the right way and steps to solve this issue.

Thank you so much and look forward to hearing your advice.

[MukatA]

"J" treated you as independent contractor. They must have issued you 1099-misc instead of W-2.
Some one may have file form SS-8 and IRS may have told "J" to treat independent contractors like you as regular employees.

[AtlantaTaxExpert]

What MukatA says is true, but there more to it than that.

First, J did not FORGET to withhold these taxes; he made the conscious decision to treat you like an employee, yet pay you as an independent contractor.

If the IRS has caught him doing this and is now demanding that he pay the back FICA taxes that he owes, he cannot come back to you for your share of these FICA taxes, because, for Tax Year 2009 and earlier, he has NO LEGAL STANDING to collect those taxes.

Since you are no longer work for him, he CANNOT pursue you in the courts for the FICA taxes from 2000 through 2008, and the IRS will NOT bother you about these taxes. You can tell J's accountant to go fly a kite. Any threat he makes has NO legal basis.

[Fr_Chuck]

Agree with Atlanta tax, and will add you should not talk to them, and risk saying something that could obligate you in any way. Ignore is good in this case, In this case they will have to pay the full amount to the IRS, and hopefully a lesson learned.

I guess though you get a pay stub every week, why did you not notice for all those years, and when you went to do your income taxes that you did not have any of those withholdings form your check

[tyoshida]

Hi all-

Thank you so much for all your answers, these help me a lot really.

My accountant found that J didn't deduct these 2 taxes from my 2008 W2 form. (I was doing TurboTax thing until 2007.)
I told J about this, and they checked the all past payments and taxes for 8 years and they found out this mistake. They simply told forgot and mistake. They fixed with W2C for 2008 quickly, but they told they have to talk with IRS to find out about a solution before 2007.

I was full-time employee and J hired as so because they told so and had initial documentation, and also I was with H1B visa and got my Green Card later with J. I don't believe just consultant status can get H1B and Green Card.

And, yes, what I didn't understand how to look at my pay stubs was one thing I could avoid this issue for long time... I didn't even understand about social security benefit at all.

So, it sounds like I lost a part of benefit that I could earn from my 8 years employee status whatever reason and whosever responsibility because like Mr. AtlantaTaxExpert answered " ...because, for Tax Year 2009 and earlier, he has NO LEGAL STANDING to collect those taxes. "

But, J is saying that J is wiling to collect half part of these 2 taxes. So, still my question is...

Another half of taxes will be too big to pay off once & soon. Is there any way to hold, break up or avoid my part of the payment because this issue started from J's mistake?

Thank you so much!

[AtlantaTaxExpert]

Tyoshida:

You may have to take a stand and threaten to quit if they attempt to collect the FICA taxes prior to 2008, especially if it is a substantial amount of money.

That decision is ultimately yours to make. If you DO quit, they CANNOT pursue you via court action to collect your share of the FICA taxes.

[tyoshida]

Thank you so much, AtlantaTaxExpert.

So, what my accountant says is not true, then...
Yes, it is big payment for me to pay off but I still wanted to fix my benefit...



Thank you so much again.

[AtlantaTaxExpert]

Glad to help!