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Social Security Info, Part 1

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  • mn_chicago
    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.
    Message 1 of 1 , Mar 6 5:49 PM
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      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
      government.

      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
      6724(a) provides:

      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
      was made.


      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
      agreements.

      (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.
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