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  1. #1
    Join Date
    Jul 2017
    Posts
    3

    Default Can an Employer Withhold Taxes Without a W-9 or W-4

    My question involves labor and employment law for the state of: South Carolina

    Sorry in advance for how confusing this situation might be. I've tried finding an answer through Google, but haven't had any luck.

    So, my husband's employer is a real piece of work. When he was hired he was told that he would be 1099 (though by the definition of an Independant Contractor, he is not one, but that is a separate issue) but was never given a W-9 to fill out. His employer's wife, who manages the company's payroll, showed up at a job one day and asked for my husband's social security number, but he never filled out or signed any tax forms when he was hired. Is the W-9 required to generate a 1099 at the end of the year, or is it just helpful for the employer to have the information it provides when it comes time to do the tax paperwork? Is it possible to get a copy of any W-9 that was sent to the IRS to see if one was forged with my husband's information?

    Also, last week's paycheck was processed as a regular, tax-withholding employee's paycheck. My husband most definitely has never filled out a W-4 for these people. His employer says their new payroll provider made a mistake (which I find highly unlikely). Are they required to return the withheld taxes to us since they do not have a signed W-4 for my husband?

    Thanks!

    Jennifer

  2. #2
    Join Date
    Oct 2016
    Posts
    2,812

    Default Re: Tax Form

    No a W-9 is not required. It simply provides the information needed to complete a 1099 and the W9 is not sent to the IRS unless it is requested by the IRS.

    If taxes were filed as a W4 employee and he was not, the employer should be discussing the issue with the payroll provider and yes it should be corrected on a future check or they will have to send your husband a W2 at the end of the year as well as a 1099 and that raises all sorts of red flags with the SSA, IRS and state taxing authorities.

  3. #3
    Join Date
    Jul 2017
    Posts
    3

    Default Re: Tax Form

    Does withholding tax without a signed W-4 constitute tax fraud, or would it only be fraud if they didn't give him a W-2 for that check?

  4. #4
    Join Date
    Feb 2008
    Posts
    1,107

    Default Re: Tax Form

    An employer who doesn't receive a (valid) W-4 is instructed by the IRS to withhold at Single 0 for FIT. So it isn't fraud, but a mistake that they withheld if he is truly an IC. Hopefully the employer and payroll provider will correct it before year end, refund the taxes to him and then give him one 1099 for all payments. If they choose to go the W-4/W-2 route for that paycheck he would have a case that he was treated as an employee (and honestly this is a red flag that he truly should be considered an employee).

  5. #5
    Join Date
    Jul 2017
    Posts
    3

    Default Re: Tax Form

    From what I can tell from playing around with paycheck calculators, the taxes withheld were based on two allowances. Would that make any difference?

  6. #6
    Join Date
    Oct 2006
    Posts
    15,218

    Default Re: Can an Employer Withhold Taxes Without a W-9 or W-4

    Quote Quoting jspringer4
    View Post
    My question involves labor and employment law for the state of: South Carolina

    Sorry in advance for how confusing this situation might be. I've tried finding an answer through Google, but haven't had any luck.

    So, my husband's employer is a real piece of work. When he was hired he was told that he would be 1099 (though by the definition of an Independant Contractor, he is not one, but that is a separate issue) but was never given a W-9 to fill out. His employer's wife, who manages the company's payroll, showed up at a job one day and asked for my husband's social security number, but he never filled out or signed any tax forms when he was hired. Is the W-9 required to generate a 1099 at the end of the year, or is it just helpful for the employer to have the information it provides when it comes time to do the tax paperwork? Is it possible to get a copy of any W-9 that was sent to the IRS to see if one was forged with my husband's information?
    The W-9 does not get sent to the IRS. It is for the company's records.

    Also, last week's paycheck was processed as a regular, tax-withholding employee's paycheck. My husband most definitely has never filled out a W-4 for these people. His employer says their new payroll provider made a mistake (which I find highly unlikely). Are they required to return the withheld taxes to us since they do not have a signed W-4 for my husband?

    Thanks!

    Jennifer
    If they are going to continue to treat him as an employee, or they will at least treat him as an employee for that paycheck, then no, they do not have to return the taxes. If they are going to cancel that paycheck and add the income to a 1099, then yes, they would need to return the withholding.

    However, I strongly suspect that your husband has been misclassified as a contract and really should be treated as an employee.

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