My husband came to the States in 1999, and got on employer-sponsored H1-B during 2002. FICA was never withheld by his company before or after his H1-B. We never worried about it because we thought it was because he was here less than 5 years and therefore a non-resident.

He has just received word from the company that during a recent audit it was determined that he was wrongly classified as being exempt from FICA, and they are starting to collect back-owed FICA for 2005 immediately, and are evaluating the years before 2005.

We did some research ourselves after this, and it seems correct that he should be paying FICA since his H1-B, i.e. 2002. But we are not sure that his employer is entitled to collect the back-owed FICA before 2005. We are very worried, as it is obviously a large sum. Please help!

I appologize for missing the post by chris_ns posted a couple weeks ago, who had the same question, and you answered to quite completely.

If I understand correctly, my husband's employer can only collect 2005 FICA taxes from him. This is an enormous relief.

Thank you!

Dixu:

You are correct. My understanding of the tax law is that the employer can only collect back taxes for 2005.

It is too late for 2004 and earlier.

Hi,

I am still fighting about this SSN and Medicare issue with my employer. Has anyone actually have case law or examples to substantiate this position?

Thanks again!

Chris_ns:

I cannot cite case law. However, a phone call to the IRS will probably give you a definitive answer regarding this matter. They will cite case law.

Hi,

Thanks for the advice.

I have tried repeated calls to the IRS and get caught in the perpetual 'I don't know but I can transfer you funnel'. Starting to work with a lawyer now. Hopefully I can report back positive news!

Chris

Hi, Chris

I have exactly same case that you have.

My company already suspended my paycheck for this month and
Asking me to pay last 3 years of FICA tax which they forgot
To put me in and withhold social tax for last 5 years.

I was wondering how you have figured out this problem so far
Because I also look for a laywer and all of them I contacted
Could not even understand this case to consider to go or not.

I am not saying I am not going to pay the money
But I was wondering what would be the best resolution
That I can go with the company rather than having
These awful burdens thanks to the company's stupid CPA.
( Probably the cheapest one they could get )


Thank you,

-- Sunkyu

Hello,

Sorry I can't be helpful - I am still fighting my employer internally on this and I have had the same result when trying to get a lawyer to take the case.

All Concerned:

Consult a tax attorney on these issues. They are the ones with the specialized tax training.