Trouble with Ex-employer
Thank you for your input.
Yes, I am aware of the nomenclature that I had used as far as the "employer" term. I would NEVER use that term in any "legal" doc. I was trying to convey the circumstances to the group...and I was lazy. By definition, I do know that "employer" is defined as the "government". So, the contractor is a "private" entity....correct? That would be "positively identifying the person" ?
Ahhh, "payroll deductions"....yes......thank you....
One reply I received was, " Your mistake was to work after they withheld. You bet on the possibility that the worker can get justice. I would not have taken that bet."
Again, thank you for your input. Trying to figure the correct tact for all this will be a learning experience.
> Sat Mar 7, 2009 2:50 pm (PST)characterized the company you worked for as an "employer". This term is a term of art(defined in the law) and to use it when it is not applicable in your situation is fatal to your cause, particularly when used in your correspondence.
> First, you have
>from you as "withholding". The term "withholding" is not a term of art but is construed according to its common meaning. That meaning is " to deduct tax from income"(http://www.merriam-webster.com/dictionary/withholding). To the extent that you have used these terms , and others, to describe your situation you have admitted certain facts that you may not have intended to admit.
> Next, you have characterized what was taken
>aforementioned terms do not apply to your situation, you use different terms such as "payroll deductions" and "the company you work for" and avoid the use of terms of art altogether to describe your situation. That will go along way toward helping you avoid the pitfalls of "judicially admitted fact" when corresponding with the principles in this matter.
> Might I suggest that, to the extent that the
>said all that, here are some other factual matters:
> Now, having
> 1. Only personsidentified in the law as "employers" pay wages subject to withholding or pay wages subject to the FICA taxes. Because of this, only persons so identified are required to withhold payroll taxes.
>can positively idetify the person you work for as a person not among those identified as employers paying wages subject to withholding or wages subject to the FICA taxes, any amounts removed from your pay under the guise, pretext and sham of "withholding" are unlawful payroll deductions. Such amounts may be recoverable under state law through a cause of action for negligence and/or conversion.
> 2. To the extent that you
>get you rolling in the right direction
> There is a lot more to this but I hope this helps
- You're welcome.
What I refer to by "positevly identify" is this: suppose you work for a corporation incorporated under the laws of one of the fifty states. You can obtain a certficate of incorporation from the secretary of state for the state of incorporation and thus you have "positively identified" the person as a person not among those identified as "employers" paying wages subject to withholding.
- --- In firstname.lastname@example.org, "jpes8888" <jcpes1@...> wrote:
> Trouble with Ex-employer
> Here's a good one.
> I worked on a 12 week project for a contractor at a power plant. It ran from April to June 2008. I gave the employer NO Social Security Number. I did not file a W-4 when offered. I gave the employer a Certificate of Exemption. Also, I gave the employer a couple letters from Social Security stating that there was NO LAW that required me to USE the SS number. The letters from SS just said I would not get credit; I did not have to USE the number. I preferred to have NO SS deductions. So, I had NO Federal withholding (since there is NO tax on labor) but they still withheld FICA (Social Security) and a couple local taxes that amounted to a couple dollars. The contractor had some fictitious Social Security Number in place of mine. I have NO idea who this number belongs to. It was not the one assigned to me.
> I believe that I should seek:
> A Declaratory Judgment
> Compensatory and consequential damages
> Punitive damages
> The costs and disbursements of the action
> All attorney's fees incurred in prosecuting this action pursuant to 42 U.S.C. Section 1988
> The right to amend complaint as needed !!!
> Such other and further relief both at Law and in equity may be justly entitled or as the court deem proper; Taking of property without due process of law under 26 CFR 601.106(f)(1)
> Unauthorized collection activity under 26 U.S.C. 7433
> Breach of fiduciary duty in violation of 26 CFR 2635.101, Executive order 12731, and Public Law 96-303
> Conspiracy against rights under 18 U.S.C. 241
> Criminally Prosecute all those responsible under all applicable provisions and Mandates of the Ordained Constitution for the Union of several States of the United States of America, and Laws made in pursuance thereof, including, but not limited to 18 U.S.C.S. 219, 241, 242, 645, 654, 912, 951, 1001, CIVIL LIABILITY FOR LOSS OR DAMAGE TO PROPERTY also treble damages, and Interest
> Civil Rights ?????
> knowingly falsified a document by inserting fictitious information
> ANY input would be appreciated Having a little trouble on how to go about this.
> THANK YOU
Am sorry you ran into someone who has been brainwashed, and is willing to break the law to do something he thinks is right.
I also agree with the comments about the use of correct terminology, and yes, if the government won't help you, you need to sue the bastard. If it comes to that, let us know -- I am sure we can help. Whenever you must use their terms, it's a good idea to put them in quotations. But make sure you use the word "term" or "terminology" as opposed to "word."
I suggest you Contact the Social Security administration immediately! Advise them that the contractor used an invalid SS# for you. They HATE it when this happens and I know this from personal experience. Explain that you need the funds refunded to you, and ask them for the money, or instructions on how to get it. It's their responsibility to make their records correct, and they are usually vigilant. They may or may not send the money, but I am sure they will help you get it back. I would explain exactly how this happened, and give them the employer's EIN and ask them to investigate him for other frauds on the government -- since that is what this really is. Here's the contact info:
Social Security Administration
Office of the Inspector General
Social Security Fraud Hotline
P.O. Box 17768
Baltimore, Maryland 21235
10:00 a.m. to 4:00 p.m.EST
Here's the rest of today's thoughts --
If you need to file any informational paperwork with the IRS, do not file a 1040 ever!! For refunds like this one, you should probably use Form 843, and send it to the Internation Division in Philadelphia.
We all should file a general statement with them that we are an "International person", and not conducting "any trade or business with the federal government." This should be done as a notarized statement under oath, blah blah blah. Those that have done this state that no reply is good news, as they have accepted it without question. There used to be a form available, 4598E that is perfect for this, and I will upload it into the files section. The IRS removed it from their forms list 2 years ago, but did not invalidate it. When you fill it out, should check the non-resident and not doing business sections. The SS# section is really up to you, as it states it's for a "nontaxpayer."
I also believe we should file W-8BEN forms with all our banks and and other entities that pay interest, dividends, etc, that are considered as "federal source funds." This will tell them not to report the interest. You CAN file a W-8BEN without a TIN, but it will expire 3 years from the date you signed it. The IRS tries to convince withholding agents that you must enter a TIN, but do not do so. Just make sure you re-file as needed. I started filing these in 1992, and have not been slapped for it since.
You are absolutely right about a W-4 being voluntary. And when the W-4 is voluntary, there is no SS# associated with you.
Am listening right now to an ad by Lifelock, that is telling folks that "you must give your SS# to your employer, your bank, ..." What a bunch of BS. You only need a SS# if you, as a non-resident alien, wish to work for the government and have your "wages" taxed.
Dearest ones, I don't know why so many of you are not aware of this. Once you stop filing a W-4, you are done with the IRS!! Without any of the info from a W-4, they cannot withhold anything since they have no SS# and nothing is ever reported. And done correctly, they will never bother you again.
To "un-volunteer" from withholding, send a letter to your employer's payroll dept. telling them that you are terminating your agreement for voluntary withholding, and that your W-4 is no longer valid. Advise them that your SS# should be redacted from all files, and that you have notified the IRS of this change. (You will send a copy of your letter to the Int. Div. along with Form 4598E.) Put the employer's EIN on the letter, and use your employee id# as a new identifier. If your employee ID is your SS#, advise them that this must be changed also. The IRS cannot do anything to anyone of us that does not volunteer!!!
Few of us are "employees" nor do we have "employment." Despite this, we continue to "volunteer!!" This is not dependent on explaining our "national affliation" or "legal domicile."
If you do not work for the federal government in a federal area, you are not subject to any of the IRS's jurisdiction. My Ex working for the USPS at corporate inside DC, but as a resident of Virginia, he is a non-resident alien even though he is working inside the 10-mile area.
BTW: This is fascinating!
Carefully read 26 CFR 1-1 !! (http://cfr.vlex.com/vid/1-0-internal-revenue-code-regulations-19700270)
Unless I am very wrong, all the guts of the Title 26 were repealed in Aug. of 1954, just as the 1939 IRS was repealed on Feb. 11, 1939!! The teeth of the IRS code are gone. In fact, other than creating the office of the Commissioner of the Internal Revenue Service, Congress never created the actual Internal Revenue Bureau!! Most of the remaining laws concern Social Security, Medicare, and other federal benefits. Yet the courts continue to punish people without the law to do it!! We are lost as long as the courts are rigged, unless we know the way around this mess.
So much of what the IRS claims is "frivolous" is actually very true. Treasury Decision 6091 clearly states that the "income," "employment" and domestic corporation taxes are EXCISE taxes. Yet the IRS continues to scream that these are not "excise" taxes!! If it weren't so horrific, it might be funny.
I recommend filing amended returns on a 1040NR (after notice is given to the IRS Intl. Office), and sending it to the same place as all other international forms are supposed to go. I have not done this yet, but am preparing my son's amended returns. He put exempt on his W-4 that the employer demanded, and was told that without a W-4 he could not get paid. What BS!! That falls under duress, and any document attested to under duress cannot be held as legal and binding. So, into the breach I go. (Am going to read all the postings again before I jump.)
Title 26 - Internal Revenue 26 C.F.R. § 31.3402(p)-1 Voluntary withholding agreements.
PART 31EMPLOYMENT TAXES AND COLLECTION OF INCOME TAX AT SOURCE
Subpart ECollection of Income Tax at Source
§ 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 §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 §31.3405(c)1, Q&A3 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 enter into an agreement under section 3402(p) shall furnish his employer with Form W4 (withholding exemption certificate) executed in accordance with the provisions of section 3402(f) and the regulations thereunder. The furnishing of such Form W4 shall constitute a request for withholding.
(1) (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 §301.63611 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 W4. An employee who furnishes his employer a request for withholding under this subdivision shall also furnish such employer with Form W4 if such employee does not already have a Form W4 in effect with such employer.
(1) (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 W4, the request upon which an agreement under section 3402 (p) is based shall be attached to, and constitute a part of, such new Form W4.
(86 Stat. 944, 26 U.S.C. 6364; 68A Stat. 917, 26 U.S.C. 7805) These are the statutes and laws that correspond to this.