Social Security Info, Part 1
- Thursday 6 March 2008
Here are some notes I have on how to handle certain
situations re social security. When I find the source address,
I will post that.
This may provide one with info on how to defend, as well as how
to go on the offensive, if needed.
With increasing demands being placed on individuals to furnish a
social security number in circumstances when use of the number is
not required by Federal law or regulation, the Congress in 1974
passed the Privacy Act of 1974 (Pub. Law 93-579, 88 Stat. 1896; as
amended). Section 7 of Pub. Law 93-579 provides:
(a)(1) It shall be unlawful for any Federal, State, or local
governmental agency to deny to any individual any right, benefit, or
privilege provided by law because of such individual's refusal
to disclose his social security account number.
The Privacy Act makes it unlawful for any person to require an
individual to disclose or
furnish a social security number for any purpose, unless the
disclosure or furnishing the
number was specifically required under federal law.
Since the passage of the Privacy Act, a State cannot use the lack of
a social security number in any adverse way against anyone, unless
required under federal law. A State cannot make something which is
voluntary under federal law, mandatory.
The plain language of the Federal Social Security Act, its
legislative history, regulations, and the relevant decisional
precedents makes it clear that there is simply not a requirement
that an individual must obtain and disclose a social security
number, unless they receive federal welfare benefits and the
disclosure of the number is required under applicable federal law.
There is no law requiring a person to obtain, have or use a social
security number to live or work in the United States.
Labor is deemed to be property, especially within the meaning of
constitutional guaranties. Thus, the right to acquire property
includes the right to acquire property by labor. Since the right to
labor is protected by the Constitution and numerous guaranties of
state constitutions, one cannot be deprived of such right by
arbitrary mandate of the state legislatures and/or by the Federal
In Patton v. Bellingham, 179 Wash. 566, 38 P.2d 364 (1937), the
Washington Supreme Court reaffirmed the principle of law that labor
is a right of property by declaring:
"The right to labor or earn one's livelihood in any legitimate field
of industry or business is a right of property, and any unlawful or
unreasonable interference with or abridgment of such right is an
invasion thereof, and a restriction of the liberty of the citizen as
guaranteed by the Constitution." Yee Gee v. City and County of San
Francisco, 235 Fed. 757, 759.
Internal Revenue Service. 26 USC §6109(a)(3) provides:
Any person required under the authority of this title to make a
return, statement or other document with respect to another person,
shall request from such other person, and shall include in any
return statement, or document, such identifying number as may be
prescribed for securing proper identification of such other person.
26 USC §6109(a)(3)
The IRS regulation interpreting 26 CFR §6109 provides:
If he does not know the taxpayer identifying number of the other
person, he shall request such number of the other person. A request
should state that the identifying number is required to be furnished
under the authority of law. When the person filing the return,
statement, or other document does not know the number of the other
person, and has complied with the request provision of this
paragraph, he shall sign an affidavit on the transmittal document
forwarding such returns, statement, or other documents to the
Internal Revenue Service so stating. 26 CFR §301.6109-1(c).
Until December 1989, 26 U.S.C. §6676 (1989), set forth the penalties
for failing to supply the Internal Revenue Service with the
identifying number. This section states that a $50.00 penalty will
be imposed for failure of an employer to provide an identifying
number on any document filed with the Internal Revenue Service
unless it is shown that the failure is due to reasonable cause and
willful neglect. The regulation interpreting the statute provides:
Under Section 301.6109-1(c) a payer is required to request the
identifying number of the payee. If after such a request has been
made, the payee does not furnish the payer with his identifying
number, the penalty will not be assessed against the payer.
However, 26 USC §6724, provides for a waiver of any penalties
assessed under the code upon a showing of reasonable cause. Section
No penalty shall be imposed under this part with respect to any
failure if it is shown that such failure is due to reasonable cause
and not willful neglect. 26 USC §6724(a).
Therefore, the Code and regulations mandate a payer only to request
the identifying number of the employee or payee. If after such a
request has been made, the payee does not furnish the payer with his
identifying number, the penalty will not be assessed against the
payer, upon the filing of an affidavit with the Internal Revenue
Service stating that a request for the payee's identifying number
The Form W-4 is a Voluntary Withholding Agreement The reason that
an employee might "fail to furnish such certificate" is that 26 USC
§3402(a)(1), which defines the application of this entire section,
states: "Except as otherwise provided in this section ." While
reading further on in the section we find the "otherwise provided"
is explained in 26 CFR §31.3402(p)-1 where it explains that the Form
W-4 is a voluntary withholding agreement and its completion is not
required by law. 26 CFR §31.3402(p)-1 Voluntary withholding
(a) In general. An employee and his employer may enter into an
agreement under section 3402(b) to provide for the withholding of
income tax upon payments of amounts described in paragraph (b)(1) of
Sec. 31.3401(a)-3, made after December 31, 1970. An agreement may be
entered into under this section only with respect to amounts which
are includible in the gross income of the employee under section 61,
and must be applicable to all such amounts paid by the employer to
the employee. The amount to be withheld pursuant to an agreement
under section 3402(p) shall be determined under the rules contained
in section 3402 and the regulations thereunder. See Sec. 31.3405(c)-
1, Q&A-3 concerning agreements to have more than 20-percent Federal
income tax withheld from eligible rollover distributions within the
meaning of section 402.
(b) Form and duration of agreement. (1)(i) Except as provided in
subdivision (ii) of this subparagraph, an employee who desires to
into an agreement under section 3402(p) shall furnish his employer
with Form W-4 (withholding exemption certificate) executed in
accordance with the provisions of section 3402(f) and the
regulations thereunder. The furnishing of such Form W-4 shall
constitute a request for withholding.
(ii) In the case of an employee who desires to enter into an
agreement under section 3402(p) with his employer, if the employee
performs services (in addition to those to be the subject of the
agreement) the remuneration for which is subject to mandatory income
tax withholding by such employer, or if the employee wishes to
specify that the agreement terminate on a specific date, the
employee shall furnish the employer with a request for withholding
which shall be signed by the employee, and shall contain-
(a) The name, address, and social security number of the employee
making the request,
(b) The name and address of the employer,
(c) A statement that the employee desires withholding of Federal
income tax, and applicable, of qualified State individual income tax
(see paragraph (d)(3)(I) of Sec. 301.6361-1 of this chapter
(Regulations on Procedures and Administration)), and
(d) If the employee desires that the agreement terminate on a
specific date, the date of termination of the agreement.
If accepted by the employer as provided in subdivision (iii) of this
subparagraph, the request shall be attached to, and constitute part
of, the employee's Form W-4. An employee who furnishes his employer
a request for withholding under this subdivision shall also furnish
such employer with Form W-4 if such employee does not already have a
Form W-4 in effect with such employer.
(iii) No request for withholding under section 3402(p) shall be
effective as an agreement between an employer and an employee until
the employer accepts the request by commencing to withhold from the
amounts with respect to which the request was made.
(2) An agreement under section 3402 (p) shall be effective for such
period as the employer and employee mutually agree upon. However,
either the employer or the employee may terminate the agreement
prior to the end of such period by furnishing a signed written
notice to the other. Unless the employer and employee agree to an
earlier termination date, the notice shall be effective with respect
to the first payment of an amount in respect of which the agreement
is in effect which is made on or after the first ``status
determination date'' (January 1, May 1, July 1, and October 1 of
each year) that occurs at least 30 days after the date on which the
notice is furnished. If the employee executes a new Form W-4, the
request upon which an agreement under section 3402 (p) is based
shall be attached to, and constitute a part of, such new Form W-4.