Re: [tips_and_tricks] Digest Number 908
NO SOCIAL SECURITY NUMBER REQUIRED.
The Internal Revenue Code section 6109(a)(3) states:
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 other document, such identifying number as may be prescribed for securing proper identification of such other person.
26 US. C 6109(a) (3). (Emphasis added).
The regulation interpreting section 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 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, statements, or other documents to the Internal Revenue Service so stating.
26 CFR 301.6109-1(c) (In part, emphasis added).
If a document must be filed and the employer has been unable to obtain the number but has made the request, then the employer needs only to include an affidavit stating that the request was made.
The Internal Revenue Code section 6723 states:
In the case of a failure by any person to comply with a specified information reporting requirement on or before the time prescribed therefor, such person shall pay a penalty of $50 for each such failure,
. . . . 26 U S C 6723. (In part).
However, Internal Revenue Code section 6724(a) 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 to willful neglect.
26 U S C. 6724(a). (Emphasis added).
Since the Internal Revenue Code provides a waiver of any penalties for "any failure" to obtain a social security number, it is not mandatory that you obtain such number or supply such number to the Internal Revenue Service. The fact that an individual will not sign a tax form or supply a number after you have made the request, eliminates willful neglect on your part.
Even under the Immigration Reform and Control Act, codified at 8 U S C. 1324a(b), documents other than a social security card can be used for identification purposes; a birth certificate being one of them.
NO FORM W-4 IS REQUIRED.
Just like the request for a social security number (or "taxpayer" identifying number), the Internal Revenue Code merely requires that the employer request a Form W-4 (or withholding exemption certificate) from each employee. The Code instructs that in the event the employee does not furnish such certificate, such employee shall be considered as a single person. Note that the Internal Revenue Code only relates to those persons who are subject to (liable for) a revenue tax.
See Economy Plumbing and Heating Co. v. United States, 470 F.2d 585, cited below.
Just like the social security number, you will also see that there is no absolute requirement for withholding exemption certificates or withholding allowance certificates (such as Form W-4) required to be signed by an individual in order for him or her to obtain a job. You will see that such forms apply only to individuals who are claiming some sort of statutorily authorized allowance or exemption.
The Internal Revenue Code provides:
On or before the date of the commencement of employment with an employer, the employee shall furnish the employer with a signed withholding exemption certificate relating to the number of exemptions which he claims, which shall in no event exceed the number to which he is entitled.
26 U S C 3402(l)(2)(A). (Emphasis added).
Here, the language is clear. Such a form is required only in the event some sort of exemption is claimed. Please be advised that I make no claim at all . I do not claim "exempt", I do not claim "zero" and I do not claim any other number of exemptions. I simply make no claim at all. I submit that you will find no law requiring an individual to complete such certificate if such individual makes no claim. It goes without saying that an individual cannot be forced to claim a "benefit" or be forced to sign a government form which is not absolutely required by law in order to contract for a job.
Furthermore, the regulation issued pursuant to 26 U S C. 3402(f)(2)(A) states that an employer is only required to request a "withholding exemption certificate" and tells you precisely what to do in the event you are not furnished such certificate. On commencement of employment. . . . . . The employer is required to request a withholding exemption certificate from each employee, but if the employee fails to furnish such certificate, such employee shall be considered as a single person claiming no withholding exemptions.
26 CFR 31.3402(f)(2)-l(a). (In part, emphasis added).
Summarizing all of the above, it is clear that the statutes and regulations issued pursuant to the statutes do not provide you with any protection for refusing to hire an individual or for dismissing an individual simply because the individual has not supplied a social security number or signed tax forms.
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