No W-2

[RightOn]

Taxpayer worked in a restaurant that has gone out of business. I suppose he was an employee there because I have never seen an independent contractor works in a restaurant. He said his former employer did not withhold any taxes from his paychecks and also did not give him a Form W-2. What is the right way to file his tax return now?

I am thinking about to use a Form 4852. Is it ok?

[ChEAr$]

You're right.

now your software may balk if you don't have an EIN, so probably have to paper file the return.

[David1980]

I agree that he would be an employee. But will offer a differing option on the reporting. Was the restaurant treating him as an employee? No tax withheld, no W-2 issued, sounds like the restaurant was just paying cash under the table?

I think with no social security/medicare tax withheld, the restaurant was not treating the taxpayer as an employee. Which would then lead to 8919 rather than 4852.

[RightOn]

You're right.

now your software may balk if you don't have an EIN, so probably have to paper file the return.

So how does the taxpayer pay back his share of the social security and medicare since it has not been withheld from his paychecks? And will the IRS go after his former employer (which is already out of business) for their share of it?

[ChEAr$]

So how does the taxpayer pay back his share of the social security and medicare since it has not been withheld from his paychecks? And will the IRS go after his former employer (which is already out of business) for their share of it?

he doesn't have to worry about it. Under all state laws if he worked in a restaurant, he was a common law employee and therefore should have gotten a W2 with proper tax withheld.
The fact that tax was not withheld is not his concern.

There was an old case of this in Texas if memory serves, and the employee was held not liable by an IRS ruling for her half of social security at that time.
however, don't ask me for a citation. i'd never find it today.
(it's a 'citation;' ; and not a "cite".

[RightOn]

I agree that he would be an employee. But will offer a differing option on the reporting. Was the restaurant treating him as an employee? No tax withheld, no W-2 issued, sounds like the restaurant was just paying cash under the table?

I think with no social security/medicare tax withheld, the restaurant was not treating the taxpayer as an employee. Which would then lead to 8919 rather than 4852.

I know what you are talking about. But I just can't imagine someone works in a restaurant as an independent contractor.

[Lion]

8919

File the SS-8 now and Form 8919 as was mentioned above. He'll pay only his share of FICA and Medicare.

[David1980]

I know what you are talking about. But I just can't imagine someone works in a restaurant as an independent contractor.

Exactly why I believe they were an employee. If employers always reported employees as employees form 8919 would not exist.

[NotEasy]

File the SS-8 now and Form 8919 as was mentioned above. He'll pay only his share of FICA and Medicare.

What will happen if they do not file the SS-8 and just file the Form 8919 in their tax return to pay their share of the FICA and Medicare?

[FEDUKE404]

One word: tips

Assuming the employee was a waiter, that could really muck up things. His "pay" could have been quite small in relation to what he received and/or what should have been reported on the W2.

Sometimes it is wise to keep your paystubs.

Of course, there may not have been any in the first place.....

FE

[NotEasy]

File the SS-8 now and Form 8919 as was mentioned above. He'll pay only his share of FICA and Medicare.

Hi I have a similar situation to deal with. And I am curious to know what will happen if they just file the Form 8919 but not the SS-8. Thank you.

[Lion]

Which

Which reason are you putting on the 8919 for why you're filing it? Seems like the only one that matches your circumstances is the one about filing SS-8. If another choice fits, then use it instead.

[taxea]

I know what you are talking about. But I just can't imagine someone works in a restaurant as an independent contractor.

Really? If the restaurant has a bar many of the bartenders get paid under the table, so why not waitresses.
If TP is young enough she probably didn't realize it was illegal or the owner gave her a song and dance. He should have sold her a bridge at the same time.

[Gary2]

Really? If the restaurant has a bar many of the bartenders get paid under the table, so why not waitresses.
If TP is young enough she probably didn't realize it was illegal or the owner gave her a song and dance. He should have sold her a bridge at the same time.

I think there's just a difference over semantics, because to me, "under the table" and "independent contractor" have two different meanings. The only similarity is that in both cases, no taxes are withheld. But the former implies intent to evade on the part of both parties, while the latter implies that the worker and possibly both parties honestly believe that filing Schedules C & SE is a legal position (even if it isn't).

In this case, assuming no 1099-MISC (and over $600 in payments received, excluding tips), I'd be tempted to do it with the 4852 and 4137, treating the actual wages received as net of FICA, and doing the math to determine the gross. This effectively gives the worker a raise. But I wouldn't rule out an 8919 using code G, along with the SS-8.