Ah yes the fabled mandatory W-4 withholding agreement. When is the last time you had to agree to anything that was mandatory. This should be a big red flag that something isn't right. No law requires a worker to file a form W-4 (or it's equivalent)In U.S.v. Mobile oil Co.82-1 USTC para 9242,U.S.D.C ND Tex Dallas 1981 CA 3-800438-G the court ruled that an Entity does not even have to send a form W-4 or other employment forms to the Internal Revenue Service unless served with a judicial court-ordered summons to do so.
United States v. Malinowski 347 F. Supp 352 in 1992. "The company is not authorized to alter the form (W-4 or its equivalent), or to dishonor the workers claim. The certificate goes into effect automatically. U.S. District Court Judge Huyett.
Also Holmstrom v. PPG Industries, 512 F. Supp 552, 554 DC WD Pa. 1981..."the withholding. party is not responsible for misstatements made on form (W-4 or equivalent) by an owner of income and hence would not be liable for tax which should have been withhled. Defendants manifest courtesy as to whether or not the plaintiff would pay tax, but this is none of their concern.
Review section 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 enter 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.
(This is great, if you do execute a W-4 you can terminate it with a simple written notice at any time.)
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.
26 USC 3402(p)(3)(a)
(p) Voluntary withholding agreements (3) Authority for other voluntary withholding The Secretary is authorized by regulations to provide for withholding - (A) from remuneration for services performed by an employee for the employee's employer which (without regard to this paragraph) does not constitute wages, and (B) from any other type of payment with respect to which the Secretary finds that withholding would be appropriate under the provisions of this chapter, if the employer and employee, or the person making and the person receiving such other type of payment, agree to such withholding. Such agreement shall be in such form and manner as the Secretary may by regulations prescribe. For purposes of this chapter (and so much of subtitle F as relates to this chapter), remuneration or other payments with respect to which such agreement is made shall be treated as if they were wages paid by an employer to an employee to the extent that such remuneration is paid or other payments are made during the period for which the agreement is in effect.
You've just seen it for yourself. There is no basis in law for an employer to withhold from your pay absent a VOLUNTARILY signed W-4 agreement. As an American citizen you are a protected worker and cannot be compelled to participate in social security, or to provide any specific government forms. Pursuant to D.O.J.I-9 companies cannot specify which documents they will accept from a worker. They cannot refuse you employment or terminate you for failing to do so as such would be a violation of Title VII of the civil rights act of 1964, discrimination against your national origin, or citizenship.
Furthermore sections 26 CFR 31.3402(a)-1
, 26 CFR 31.3402(f)(2)-1(e)
, 26 CFR 31.3402(f)(2)-1(g)
, 26 CFR 31.3402-(n)(1)
, and 26 CFR 31.3402 (g)-1(a)(2)
address Requirement of withholding, Withholding exemption certificates, Employees incurring no income tax liability, and Supplemental wage payments. All of these sections are here for context as curiously most employers assert a requirement to withhold from employees wages for income taxes. And the tax professionals that companies rely upon are most likely unaware of these sections of law or through cognitive dissonance have dismissed them. As seen below most Americans are not liable for income taxes on their domestic sources of income so one could easily make the statements in 26 CFR 31.3402-(n)(1) which are what constitutes a withholding exemption certificate. Tax professionals will try to confuse you with the W-4 exempt form which is STILL A WITHHOLDING AGREEMENT, not a WITHHOLDING EXEMPTION CERTIFICATE.
26 CFR 31.3402-(n)(1)
An employers requirements as shown in 26 CFR 31.3402(a)-1
and others like it are all nullified by 26 CFR 31.3402-(n)(1).
Here is the entire section for context. It clearly establishes that a withholding exemption certificate is not a substitute W-4 and that the statements as described are what constitute the certificate, not the specified government form W-4. You will see it says W-4 no where in this section. The rules of 26 CFR 31.3402(f)(2)-1(e),
and 26 CFR 31.3402(f)(2)-1(g).
determine what is an INVALID withholding exemption certificate. I encourage you to see these sections. Law is easy to read if you just read it. It has to be easy enough for a person of average inteligence to understand.
Employees incurring no income tax liability. (a) i In general. Notwithstanding any other provision of this subpart (except to the extent a payment of wages is subject to withholding under 26 CFR 31.3402 (g)-1(a)(2)
, an employer shall not deduct and withhold any tax under chapter 24 upon a payment of wages made to an employee, if there is in effect with respect to the payment a withholding exemption certificate furnished to the employer by the employee which certifies that (1) The employee incurred no liability for income tax imposed under subtitle A of the Internal Revenue Code for his preceding taxable year; and (2) The employee anticipates that he will incur no liability for income tax imposed under subtitle A for his current taxable year. Mandatory flat rate withholding. To the extent wages are subject to income tax withholding under 26 CFR 31.3402 (g)-1(a)(2)
, such wages are subject to such income tax withholding regardless of whether a withholding exemption certificate under section 3402(n) and the regulations thereunder has been furnished to the employer.
Rules about withholding exemption certificates. For rules relating to invalid withholding exemption certificates, see 26 CFR 31.3402(f)(2)-1(e)
, and for rules relating to disregarding certain withholding exemption certificates on which an employee claims a complete exemption from withholding, see 26 CFR 31.3402(f)(2)-1(g).
Regarding Sections of the code that relate to mandatory withholding requirements, specifically sections
26 USC 1441
, 26 USC 1442
, 26 USC 1443
, and 26 CFR 1.1441-7
. These sections do not apply citizens of the United States that live and work exclusively within America. No employer in America has forms 2678, or 8655 on file with the IRS with respect to their employees and are not legal withholding agents with respect to employees that are citizens. These companies cannot provided evidence of having executed these forms specific to any of their employees that are citizens of The United States of America. With respect to sections 31 CFR 31.215.9
and 31 CFR 31.215.6
these sections do not apply to the vast majority of American Citizens living and working exclusively within the United States, and the companies have never and will never provide evidence of having entered into a Standard Agreement with the Secretary of the Treasury, and Fiscal Assistant Secretary, or his delegates.
"Protected individual" as defined at 8 USC 1324b(a)(3)(A)
, cannot lawfully be compelled to submit any specific documents (irs form W-4 or it's equivalent) or DOJ I-9, or to disclose a social security number as a condition of being hired or maintaining a position with any company.
All employers must comply with the anti-discrimination act 8 USC 1324a
, and 8 USC 1324b(a)(3)(A)
, the Civil Rights Act of 1974 which is codified in law under sections; 42 USC 2000e
, 42 USC 2000e-1
, 42 USC 2000e-2
, 42 USC 2000e-3
, 42 USC 2000e-4
, 42 USC 2000e-5
, 42 USC 2000e-6
, 42 USC 2000e-7
, and 42 USC 2000e-8
see SUBCHAPTER VI--EQUAL EMPLOYMENT OPPORTUNITIES
for more information.
All employers must also comply with the Privacy Act which is codified in law at 5 U.S.C.A. 552a(7)(a)(1)
It isn't just employers that must comply with these provisions, every form of state or local government and institutions such as banks must comply with these regulations.
5 U.S.C.A. 552a(7)(a)(1)
(a)(1) It shall be unlawful for any Federal, State or local government 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.
(2) the provisions of paragraph (1) of this subsection shall not apply with respect to--
(A) any disclosure which is required by Federal statute, or
(B) any disclosure of a social security number to any Federal, State, or local agency maintaining a system of records in existence and operating before January 1, 1975, if such disclosure was required under statute or regulation adopted prior to such date to verify the identity of an individual.
(b) Any Federal, State or local government agency which requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it.
Violations of Section 7 of the Federal Privacy Act (5 USC 552a note) could be construed as felonious under both the Social Security Act 42 USC 408
and the Civil Rights Act 18 USC 241
42 USC 408
(a) In general
(8) discloses, uses, or compels the disclosure of the social security number of any person in violation of the laws of the United States; shall be guilty of a felony and upon conviction thereof shall be fined under title 18 or imprisoned for not more than five years, or both.
18 USC 241
If two or more persons conspire to injure, oppress, threaten, or
intimidate any person in any State, Territory, Commonwealth, Possession,
or District in the free exercise or enjoyment of any right or privilege
secured to him by the Constitution or laws of the United States, or
because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the
premises of another, with intent to prevent or hinder his free exercise
or enjoyment of any right or privilege so secured--
They shall be fined under this title or imprisoned not more than ten
years, or both; and if death results from the acts committed in
violation of this section or if such acts include kidnapping or an
attempt to kidnap, aggravated sexual abuse or an attempt to commit
aggravated sexual abuse, or an attempt to kill, they shall be fined
under this title or imprisoned for any term of years or for life, or
both, or may be sentenced to death.
All of these provisions prohibit discrimination against "protected individuals" based on their citizenship or national
origin, or to deny any individual any right benefit or privilege provided by law because of failure to disclose a social security number.