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Q: Court cases on Social Security and Medicare tax (FICA) ( No Answer,   1 Comment )
Subject: Court cases on Social Security and Medicare tax (FICA)
Category: Business and Money > Employment
Asked by: ficaquestion-ga
List Price: $200.00
Posted: 22 Oct 2006 15:57 PDT
Expires: 31 Oct 2006 22:36 PST
Question ID: 775884
Dear Google Experts,

I am looking for a court case(s) between 2 parties (employee(s) and
employer) in which employer failed to withhold the social security and
Medicare tax (FICA) from an employee.

The Social security and Medicare tax (FICA) should be paid equally by
both employer and employee.  The employee?s portion of the social security
and Medicare tax should be withheld by the employer from the
employee?s pay/salary.  In my case, my employer should have withheld
social security and Medicare tax (FICA) from my wages but they did not
(neglected to do so).  According to IRS publications (Publication 15
Circular E ? page 28 and Publication 4483 ? page 3), employer is
liable for BOTH the employee?s and employer?s shares of FICA that the
employer failed to collect from an employee.

However, my employer is not convinced with the IRS publications
mentioned above and they are wanting to see court cases (preferably
tax court) where the court decision is in favor of the employee.  I am
looking for a court case(s) in which the court found the employer
liable for BOTH their share and the employee?s share of FICA they had
failed to withhold.

Please help. Any directions or suggestions are greatly appreciated. Thanks!

Request for Question Clarification by umiat-ga on 22 Oct 2006 17:55 PDT
Is your "employer" claiming that you are actually an independent
contractor (rather than an employee) and that you are therefore
responsible for your own Social Security and FICA? If so, I imagine
the IRS code establishing whether an employer-employee relationship
exists would be the primary factor in resolving this matter.

However, if your "employer" fully agrees that you are an "employee", I
don't understand why he/she needs a court case to back up the very
clear IRS rulings on this matter.

Can you clarify, please?

Clarification of Question by ficaquestion-ga on 23 Oct 2006 07:48 PDT
my employer agrees that i am an employee NOT an independet contractor.
the reason they want to see a court case is because the company's
lawyer is not convinced with the IRS publications, and in order for
them to change their mind, they want to see a court case on the
There is no answer at this time.

The following answer was rejected by the asker (they received a refund for the question).
Subject: Re: Court cases on Social Security and Medicare tax (FICA)
Answered By: umiat-ga on 23 Oct 2006 15:01 PDT
Hello, ficaquestion-ga! 

If there is no dispute over whether you are an actual employee, then I
can see no reason why your employer or his attorney would assume that
THEY are not responsible for your employment taxes.

Is your employer's attorney actually disputing IRS tax law by
proposing that his client (your employer) can get away with NOT paying
his share of your employment taxes?

Is the employer and his attorney proposing that YOU are responsible
for paying the employer's share of employment tax that your employer
neglected to pay on your behalf?

To be honest, I would report your employer to the IRS immediately. In
any case, you are not responsible for educating your employer and his
attorney about tax law!


Before you proceed, please be reminded of the disclaimer that
accompanies the GA service.

"Information provided via the Services is not intended to substitute
for informed professional medical, psychiatric, psychological, tax,
legal, investment, accounting, or other professional advice."


As an introduction, please read the following:

"IRS Warns Businesses, Individuals to Watch for Questionable
Employment Tax Practices."  IR-2004-47, April 5, 2004,,id=122521,00.html 


Please make SURE your employer and his attorney read this over!

Excerpts from "Statement of Steven T. Miller, Commissioner, Tax-Exempt
and Government Entities Division, Internal Revenue Service. Testimony
Before the Subcommittee on Oversight of the House Committee on Ways
and Means. May 25, 2006

II.  Applicable Law

Overview of Employment Tax Requirements 

"In general, employers are required to pay employment taxes on wages,
and to report wages and certain other payments to the IRS.  Federal
employment taxes include three components: (i) federal income tax
withholding, (ii) social security, and Medicare taxes (the Federal
Insurance Contributions Act "FICA" taxes), and (iii) the Federal
Unemployment Tax Act (FUTA) tax.  Employers are required to make
deposits of employment taxes on a daily, semi-weekly, monthly or
quarterly schedule, depending upon the amount of tax they accumulate
for deposit."

Determining Liability for Tax

"The first step in evaluating liability for federal employment taxes
is to determine whether a worker is an employee or an independent

"Employers are generally liable for employment taxes, and the
associated withholding, reporting and deposits, on the wages they pay
their employees.

"Employers are also required to withhold and pay the employee portion
of social security taxes (currently 6.2 percent of wages up to the
maximum wage base, which is $94,200 for 2006) and Medicare taxes
(currently 1.45 percent of all wages) from payments of wages, and to
pay the equivalent employer portion of social security and Medicare
taxes with respect to wages paid to the employees.

** If the employer fails to withhold the proper amount of income tax
or the employee portion of social security or Medicare taxes from
wages paid to the employee,   **  the employer remains liable for such
tax. ***

Personal liability for employment taxes

"Section 6672(a) of the Code imposes a liability equal to the amount
of unpaid "trust fund taxes" upon any person responsible for
collecting, accounting for or paying over such taxes who willfully
fails to do so.  "Trust fund taxes" include income tax withholding and
the employee portion of social security and Medicare taxes."


the Criminal Tax Manual.

I don't see that you need to go any further in trying to convince or
persuade the attorney or the employere concerning your employer's
responsibility. Let the IRS do so! If your employer wants to continue
to badger you, tell him to take it up with the IRS and provide him
with the phone number!


Read and print all.....


Also see "United States Court of Appeals For the First Circuit. No. 01-2357
Defendant, Appellee.

"Employers are required to deduct from employee wages--and turn over
to the Internal Revenue Service--social security, Medicare and federal
income taxes. Although the primary liability for failing to do so is
the employer's, a penalty for such a failure equal to the unpaid tax
can be collected from "[a]ny person" who was "required" but
"willfully" failed to pay over the withheld taxes. I.R.C.  6672
(2000); Slodov v. United States, 436
U.S. 238, 250 (1978). Such persons are described in the case law as
"responsible persons" and a body of decisions has refined the concept,
albeit imperfectly. See Mertens, Law of Federal Income Taxation 
55:107-:113 (1997 & 2004 Supp.)."


Please review the following examples of Employment Tax Enforcement
taken from the IRS website.

See what happened to employers who refused to collect employment taxes
from their employees, or collected the tax but neglected to fork the
money over to the IRS!

** NOTE that in each of the following cases, the employer was
responsible for uncollected employment taxes - NOT the employee!

From "Examples of Employment Tax Enforcement",,id=129073,00.html

Man Sentenced In Employment Tax Evasion Case

"On July 7, 2005, in Cincinnati, OH, Eric Nystrom was sentenced to
eight months in prison followed by three years of supervised release,
and ordered to pay restitution in an amount of $311,323 as well as a
$2,500 fine for willfully attempting to evade or defeat the payment of
federal employment taxes to the Internal Revenue Service.

* Nystrom previously pleaded guilty to one count of income tax evasion
for willfully evading the payment of approximately $57,846 in federal
employment taxes to the IRS that was due on $378,084 of wages that
were paid to employees during the fourth quarter of the year ending
December 31, 2001.

* Nystrom failed to withhold the federal income taxes for wages paid
to his employees

* and failed to withhold the employer?s portion of the federal employment taxes. 

As a result, Nystrom evaded $311,325.52 in federal employment taxes. 
Nystrom also failed to pay unemployment insurance compensation taxes
due to the State of Ohio on wages paid to his employees and failed to
report the true number of employees to the Ohio Bureau of Worker?s

Attorney Sentenced for Evaded Employment and Personal Taxes

"On December 16, 2004, in Cleveland, OH, Mark S. Colucci, an attorney,
was sentenced to 18 months in prison to be followed by two years of
supervised release and ordered to pay an assessment of $125.  Colucci
pleaded guilty on October 12, 2004, to willfully failing to account
for and pay over federal income and social security taxes withheld
from the wages of his employees and willfully failing to pay personal
income taxes.

In his plea agreement, Colucci admitted that 

* he knowingly and willfully failed to pay the entire amount of the
employees' and employer's share of employment taxes owing with respect
to  his employees' wages and salaries, although he knew he was
required to file such returns and to remit such taxes to the IRS.

Beginning with the quarter ending September 1996 through the quarter
ending June 2001, Colucci failed to pay over to the IRS $29,727 in
employment taxes.  Colucci also admitted to knowingly and willfully
failing to pay personal income taxes in the amount of $291,149 for the
calendar years 1997 through 2001.",,id=129073,00.html

Kansas Man Sentenced for Willfully Failing to Pay Federal Employment Taxes

"On December 7, 2004, in Topeka, KS, David G. Pflum was sentenced to
30 months in federal prison, without parole, to be followed by two
years of supervised release and ordered to pay a $6,000 fine.  Pflum
was convicted of eight counts of

* willfully failing to collect and pay federal employment taxes and
three counts of willfully failing to file federal individual income
tax returns.

According to evidence presented at trial, Pflum, owner of Coil Springs
Specialties, paid approximately $363,435 in wages from January 1,
1998, through December 31, 1999, and

* willfully failed to collect and pay to the IRS approximately
$138,853 in federal employment taxes.

Pflum received net income of $264,000 for tax year 1997, net income of
$488,000 for tax year 1998, and net income of $393,000 for tax year
1999 and willfully failed to file federal individual income tax
returns for 1997, 1998, and 1999 with the Internal Revenue Service.",,id=129073,00.html

Arkansas Resident Sentenced for Failure to File

"On March 31, 2005, in Little Rock, AR, Gary Ingle was sentenced to 18
months (1 month incarceration and 17 months home detention) and
ordered to pay $520,760 restitution to the Internal Revenue Service. 
Ingle owned and operated Environmental Data Services, Inc. (EDSI).

* He willfully failed to collect and pay over employment taxes for his
employees to the IRS.

Ingle instead used these funds for personal living expenses and the
purchase of personal assets.  Ingle pleaded guilty on March 22, 2004,
to violations of failing to collect or pay over employment taxes from
1997 through 2000 and failure to file personal income taxes for tax
years 1997 through 2000.  Ingle was ordered to pay the restitution
before his supervised release ends in three years after his
incarceration.  Ingle was also ordered to service 50 hours of
community service. Ingle admitted that his actions caused a tax loss
to the government of $463,000 in employment taxes and $57,760 in
personal income taxes.",,id=129073,00.html

Businessman Sentenced to Seven Years in Prison

"On April 30, 2004, in Dallas, Texas, Richard M. Simkanin, former
owner of Arrow Custom Plastics, was sentenced to seven years in prison
and ordered to pay over $300,000 in restitution.  Simkanin was
convicted on January 29, 2004, on 29 counts of various tax violations.

* According to evidence presented in court, Simkanin refused to
withhold taxes from his employees? paychecks despite warnings from
Simkanin?s bookkeeper and two members of an accounting firm who told
Simkanin it was illegal to refuse to collect employment taxes.

By not withholding taxes during the period 2000 through 2002, Simkanin
was able to retain over $175,000 in taxes lawfully due to the IRS. 
Testimony at trial indicated Simkanin also filed a $235,000 false
claim for a refund in taxes already collected for 1997 through 1999.",,id=106707,00.html


"Employer is Liable to IRS for Certain Unpaid Employment Taxes; Court
Holds IRS Properly Classified Worker as an Employee. (Nu-Look Design,
Inc. v. Commissioner of IRS, 3rd Circuit Court of Appeals, January 26,
2004) The 3rd Circuit Court of Appeals upheld IRS's classification of
a worker as an employee for Social Security (FICA) and Federal
Unemployment Taxes withholding based on its finding that Nu-Look
Design (employer) lacked a reasonable basis for not treating the
worker as an employee."



* "Al Thompson of Shasta Lake, California, doing business as Cencal
Sales Co., failed to withhold federal taxes from employees' wages, pay
employment and unemployment taxes, and file tax returns and W-2 wage

Thompson has been described by the New York Times as an "advocate of
the notion that American companies and their workers do not have to
pay income taxes." He appeared on the television program "60 Minutes
II," where he asserted that wages are not taxable and that employers
therefore need not withhold federal taxes from their employees? wages.
 In September 2003, the court entered a preliminary injunction,
ordering him to withhold and pay these taxes and to file returns and
W-2 statements.  In November 2004, Thompson was indicted, along with
co-defendant, Joseph Bannister, for conspiring to defraud IRS, filing
false returns, and willful failure to turn over $176,000 in employment
taxes.  In February 2005, he was convicted of 13 counts of filing
false returns and failing to turn over employment taxes."


Although the following reference pertains to a case involving the
liabilities of individuals in a partnership, your employer's attorney
should still find it relevant to your employer's responsbility to pay
your portion of employment tax:


"Here, the liability arose from the Partnership?s failure to comply
with 3402(a)(1)?s requirement that an "employer [paying] wages"
deduct and withhold employment taxes. And 3403 makes clear that the
"employer" that fails to withhold and submit the requisite employment
taxes is the "liable" taxpayer.


In another twist - look at the employer's responsibility when the
payroll service screws up!

"Employers are Still Responsible for Payroll Taxes Even if They Use a
Payroll Service."

"A company had used a payroll service to process their payroll, file
the company's payroll tax returns and make payroll tax deposits. The
owner of the payroll company filed phony payroll tax returns and stole
the tax deposits.

A U.S. district court in New Jersey ruled that the company is liable
not only for the unpaid payroll taxes, but for interest and penalties
on those unpaid taxes (Pediatric Affiliates, D.C., N.J.). Although the
company can sue the payroll service company, it will be of little use
because the payroll service filed for bankruptcy.

This case provides a great example of why business owners must stay on
top of their payroll tax responsibilities, even if they are
outsourcing that function."


Your employer might be interested in reading this brief overview about
Payroll taxes:

"A Primer on Payroll Taxes for the Small Business Owner."


"What can be done if an employer will not withhold income taxes,
social security, and Medicare from my pay?"

"Generally, in situations such as this, the employer is not
considering you to be an employee. Rather, you are being treated as an
independent contractor (self-employed person). If you cannot resolve
this matter with your employer, and if you feel that an
employer-employee relationship exists, you should submit a Form SS-8
(PDF), Determination of Employee Work Status for Purposes of Federal
Employment Taxes and Income Tax Withholding. The factors used to
determine if an employer-employee relationship exists are covered in
Chapter 2 of Publication 15-A (PDF), Employer's Supplemental Tax

"If your status as an employee is not at issue, it may be that you are
in a category of employment whose earnings are not defined as wages
under U.S. federal tax and social security law. Find out from your
employer the reason that social security and Medicare taxes and income
taxes are not being withheld from your pay. If you have further
questions, contact the IRS at 800-829-1040 or visit an IRS walk-in
office for assistance."


* Form SS-8 (PDF), Determination of Employee Work Status for Purposes of  
  Federal Employment Taxes and Income Tax Withholding
* Publication 15-A (PDF), Employer's Supplemental Tax Guide
* Publication 1779 (PDF), Independent Contractor or Employee


 I hope this information is helpful as you go foward. Best of luck!



employer liability for employment tax
court cases involving employment tax
employer is liable for employment taxes if fails to withhold
employer responsible for unpaid employee taxes
employer fails to withhold employment tax
Court AND employer is liable for employment taxes if fails to withhold
responsibility for unpaid employment tax AND legal OR court
Slodov v. United States

Clarification of Answer by umiat-ga on 23 Oct 2006 16:30 PDT
I am afraid that the IRS may, in fact, ultimately force you to pay
your share of the employee taxes that were not withheld despite your
employer's unethical behavior:

"In addition, if the employer refuses to withhold employment taxes
from these wages and the IRS is unable to collect the employment taxes
from the employer, the employee still has the responsibility to pay
income tax and is ultimately responsible for his/her share of the FICA

Request for Answer Clarification by ficaquestion-ga on 24 Oct 2006 18:51 PDT
Hello Umiat,

Thank you so much for your response.   I have read through all the
documents you pointed out and I had been doing research on LexisNexis
Legal Research database on my own these past few days before my friend
told me about Google Answers, and I was unsuccessful in finding cases
I need.

As mentioned on my question, I am looking for a court case(s) between
employer and employee where the employer failed to withhold FICA from
the employee.  The lawyer wants to see if there was such case in the
past, where the employee won the case and the court was in favor of
the employee.  That?s the only way, my employer would pay my share of
FICA that they failed to withhold from my wages.

So far, I haven?t been able to find such court case(s).  What you
found is a court case between employer and the IRS (the United
States).  My employer wants me to pay my portion(only) of FICA that
they failed to withhold from my wages.

I even showed them the research and the case you found, and the lawyer
stressed that it is not a similar case and  they insist to see court
case(s) between employee and employers before they change their mind.
I really appreciate your time and effort, however, the only way for me
is to find a court case between an employer and an employee

I have contacted IRS several times and they referred me to the two
publications I mentioned on my question.  Unfortunately, my employer?s
lawyer is still not convinced because he found codes that contradict
the IRS publications.

I appreciate your effort in helping me.  If you can find court case(s)
between employer and employee that would help me greatly.


Clarification of Answer by umiat-ga on 24 Oct 2006 21:42 PDT
To be honest, I don't think I will be able to find a court case
between an employee and employer in which the employee won. It is
quite clear that the IRS rules follow the old saying of "ignorance of
the law is no excuse." In this case, though your employer was
obviously negligent, it is still your legal obligation to pay your
portion of employee tax once you are made aware that it was not
withdrawn. However, the IRS is likely not going to come after you.
They are going to come after the employer, who is the responsible
party for collection. It is your employer who will then try to extract
the money from you, not the IRS.
 Now...suppose you don't have the money at your disposal. I suppose
you could tell your employer that due to his negligence, you had no
idea that you were getting a "fuller" paycheck than you should have
and that you simply don't have the funds to pay what he should have
withdrawn. However, the employer still has every right to legally try
to get you to pay. Will the employer do this? Are you willing to take
it to court? I don't think it would be worth the money, do you?
 Just out of curiosity, what is your employer's excuse for not
withdrawing the employee tax? Did you receive a W-2 or a 1099 at the
end of the year? Did your employer originally treat you as a
subcontractor and then turn around and create a reversal in your
status to make you an employee? Has your employer been negligent about
taking payroll taxes out of the paychecks of other employees as well?
If you were getting weekly paychecks, didn't you notice that the
employer was not taking out your payroll taxes?
 I am asking this out of curiosity - I realize I have not provided the
answer you are hoping to find.
 To be very honest, I have looked at the Tax Court website as well as
other legal databases and could find no cases that address the issue
of an employee coming up against an employer on this issue. I believe
it is due to the fact that the majority of such court cases would cost
far more to the employee than the amount of payroll taxes owed.
Secondly, I also believe that in many cases, the employer simply
absorbs the employee's share of tax as well, because the employee
simply does not have the money when the problem comes to light, it
takes too much time and effort to take the employee to court for such
a small amount of employee tax, or the employer feels embarassed
enough about his negligence to not admit his mistake! I was hoping
that the cases I found would put you in a position of strength in some
way - either by showing your employer the seriousness of such
ignorance of the law, or by creating a degree of sympathy for you and
any other employees he is now trying to collect from. Obviously, this
is not the case, since he is letting the company lawyer handle it all.
  If the information I have provided has been of no use in helping you
to understand the process at stake here, I will certainly ask to have
my answer withdrawn. On the other hand, if you feel that I can be of
any further help in some way, even if I cannot find a court case,
please let me know.

Clarification of Answer by umiat-ga on 25 Oct 2006 12:15 PDT
Hello again, ficaquestion-ga,

 I have spent many additional hours of research this morning, trying
to come up with anything that might help you to resolve this matter. I
am forced to settle for the same conclusions that I posted in my
latest clarification.

 Basically, it appears you are in a bind. Your employer was extremely
negligent in not withholding your employee taxes. However, now that he
has caught his error, he is responsible for satisfying the IRS. If he
is having any money problems at all, or simply lacks sympathy for your
plight, he will certainly try to help himself out by trying to make
you partially responsible for his error.


 The following Discussion Forum from Tax Almanac discusses some
situations very similar to yours. Note that there are variations on
the opinions and outcome of this matter in terms of employer and
employee responsibility, even among CPA's.

Please take a look and read through until the end. 

"If the employer did not withhold FICA and Federal Taxes from the
employees in tax year 2005,  - 1. Is the employer liable for all the
taxes due for each employee?  2. If so, can the employer deduct from
the employee paycheck money owed for 2005 in 2006?"

My employer has not deducted FICA. Who is responsible?


 While the IRS code cited in the above discussion can "appear" to be
in your favor, I tend to think it references the employer's initial
responsibility for payover to the IRS, but does not absolve you from
paying it back to the employer later if he recognizes his mistakes and
requests it.

See Sec. 601.401 Employment taxes:

(3) Collection methods. Employment taxes are collected by means of
returns and by withholding by employers. Employee tax must be deducted
and withheld by employers from wages or compensation (including tips
reported in writing to employer) paid to employees,

* and the employer is liable for the employee tax whether or not it is so deducted.,_Subchapter_H,_Sec._601.401


See (c) Adjustments by employers(1) Undercollections and
underpayments(i) Employer tax or employee tax. If a return is filed by
an employer under the Federal Insurance Contributions Act or the
Railroad Retirement Tax Act, and the employer reports and pays less
than the correct amount of employer tax or employee tax,

* the employer is required to report and pay the additional amount due.,_Subchapter_H,_Sec._601.401


If you want to read through all relevant sections, see:

Subchapter C - Employment Taxes and Collection of Income Tax at Source


 Besides my own research, I have discussed this problem at length with
a CPA who has also expressed that if the employer elects to ask you
for your share of the employee tax, it is within his right to do so.
Again, it is then up to you to go along with the request, sit down
with the employer and try to negotiate a settlement between the two of
you, or try to fight it. Unfortunately, you have learned a hard
lesson. I am sure you will not neglect to look at your paystubs in the
future! (If there are numerous people within the organization who have
been affected by your employer's negligence, perhaps you can band
together. I cannot help but wonder how many of the employees affected
by the numerous court cases I referenced eventually ended up coughing
up their share of the money. I looked at that angle as well but could
find no further information about employee payback)


 Once again - I realize this is not the information you had hoped for
and my offer still stands. If you would like me to request the removal
of my answer, your credit card will not be charged and I will receive
no payment for my research. I will understand.

 If you believe that the information I have compiled is helpful in
some way, even if not in the way you had hoped, I will let the
information I have compiled remain. Just let me know.

Sincerely, and best of luck!


Request for Answer Clarification by ficaquestion-ga on 26 Oct 2006 18:17 PDT
Hello Umiat,

Thank you so much for all the effort and time you put into researching
my question.  I have read and showed all the documents you provided to
my employer and they are still not convinced. At this point, I am
giving up myself.  Since I didn't get the answer I was looking for, I
would like to ask for the removal of your answers.  However, I want to
be fair and I want to pay you $20.00 for all the effort and time you
spent.  Please let me know how to do this?

Thanks again,

Clarification of Answer by umiat-ga on 26 Oct 2006 20:41 PDT
I will ask the editors to remove my answer. I then suggest you expire
your question so another researcher does not attempt this all over
 If you want to pay me $20, then the best thing to do is to post a
totally different question for the lowest possible price of $2, titled
"For Umiat." You can simply put "Thanks for your time" in the question
area. When I post "Your welcome" in the answer box, you can then use
the tip feature to pay me $18. Otherwise, if you post a $20 question,
Google will take 25% of the price right off the top. Does that make
 Please be patient. I will write to the editors right now, but this
probably won't be removed until tomorrow.

Clarification of Answer by umiat-ga on 27 Oct 2006 12:56 PDT
Upon further thought, I think the best course of action is for you to
request a refund. That way, you can explain your reasoning for
disliking the answer I provided.

To request a refund, please see the following link:
Reason this answer was rejected by ficaquestion-ga:
I didn't get the answer I asked for.  I was asking for a court case(s)
between employer and employee. But, the results I was given are court
cases between employer and the IRS.

Subject: Re: Court cases on Social Security and Medicare tax (FICA)
From: pinkfreud-ga on 26 Oct 2006 22:00 PDT
If the only answer that you would accept was one that bolstered your
viewpoint, why did your question end with this? "Please help. Any
directions or suggestions are greatly appreciated."

Frankly, I am baffled that you value this answer, and the subsequent
efforts during the clarification process, at only twenty dollars.

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