My employer did not pay my Taxes to the IRS

[CarlosAndSveta 808]

Hello, I want to ditto what speedytax said but also to put my two cents in about the independent contractor vs employee post. It does not sound to me like the OP qualifies as an independent contractor. Speedytax, if you were doing the OP's returns, would you not treat the amount earned as wages, not self-employment income? I think that would be the best route to take. And yes, there eventually will be some ramifications of that to the employer and some correspondence with the OP/taxpayer. But I think that would be filing the returns properly. I hope the OP the best luck in your journey.

The OP can request a determination of her employment status by filing a Form SS-8 with the IRS. Here is a link to the form:

Form SS-8 - Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding

[Kristy S 13]

A sole proprietor may use any check they desire including their personal check from personal account. Since the OP has only worked this year, she isn't entitled to a W2 form or 1099 yet. The "employer" is required to provide one or the other by January 31, 2011.

The OP will need to sort out her sponsorship issues before the interview, which apparently will be AFTER January 31, 2011. I don't see any statement by the OP indicating anything illegal or even unusual has occurred with regard to her job or the owner of the restaurant where she works.

he didn't give her any form of stubs or documentation for hours worked or taxes/ss/unemployment deducted, she stated all she has is photocopies of the checks

[Gary and Alla 3,694]

Hello

After working one year now I found out that my employer doesn't deduct any tax from my paychecks. I know Consulate need two year tax return from me. I do not know what to do.

Then your "employer" is not your "employer" they are a "client" and you are self employed. whether or not taxes are deducted YOU still have to file tax returns. You should have received a 1099 form instead of a w-2 at the end of each year.

You can file tax returns at any time. Google 1040/2008 for example to download 2008 forms. If taxes are owed you will have to pay penalties. Get your tax situation in order BEFORE your fiance(e)'s visa interview

Taxes and the payment thereof are YOUR responsibility not your employer's. You need to be always aware of your employment situation and classification and either make sure your employer is doing what they need to do, or make sure you are doing what you need to do as a self employed person.

I am sure you knew before one year that there were no taxes deducted.

I suggest you contact a tax professional and get this sorted out.

[Gary and Alla 3,694]

I worked in a coffee shop. He paid me from his personal checks.So I kept a copy from each check. I also did not complete form W4.

You are being retained as an independent contractor. You are not an employee. Whether or not that is legal and whether you are legally classified as an independent contractor is another thing. But that has nothing to do with you not filing taxes. you MUST file tax returns either way.

Withholding is simply a way for the employer to use YOUR money to pay YOUR taxes. It is always YOUR responsibility to pay taxes. The employer in this case MAY be liable to pay a penalty for not withholding YOUR money to pay YOUR taxes...but you are still responsible.

even if a tax professional can determine that you should be classifed as an employee and the employer should be withholding taxes...they didn't and you still have to pay them. The bigger problem for the employer comes in when they DO withhold the money from employees but do not deposit it in their IRS account. Essentially this is stealing from the employees and THAT will get you in big trouble. Mistakenly classifying a person as a contractor usually gets you a nasty letter and that's about it, unless the employer is doing it extensively.

[pushbrk 12,764]

he didn't give her any form of stubs or documentation for hours worked or taxes/ss/unemployment deducted, she stated all she has is photocopies of the checks

I read that but while you may find it "unusual" or even improper, I do not. He may be treating her as an independent contractor or as an employee. She's asking about a tax return. The employer doesn't need to provide her with a 1099 or W2 until January 31, 2011. When he does, she can file a tax return. It's really as simple as that.

On the other hand, if she asks him his intentions and his answer indicates illegal intentions, that's another matter. She hasn't asked yet, so doesn't know. If she doesn't know, we certainly don't either.

[pushbrk 12,764]

I don't actually know but I suspect the following scenario intimately familiar to me is what is happening.

The restaurant owner is withholding no income tax because the checks are small and he knows the tax computation will indicate that. He intends to do the tax calculation and pay the taxes when his accountant produces the W2 forms. The checks represent only the minimum wage. (and perhaps tips included on credit card payments but perhaps those were given in cash already) The only taxes the employer will pay is social security and medicare. Any further taxes on tips not included in the W2 will be the responsibility of the employee. This scenario is common.

The OP simply doesn't yet know the employer's policy or plans because she hasn't asked. Now is a good time to ask.

To the OP. Those cash tips you carry home after work are part of your "income".

Edited November 22, 2010 by pushbrk

[JohnC811 4]

Other questions to ask, Does the person have a SSN Number and a I-765 the person would need the I-765 to work and the SSN to file and pay taxes

[Speedytax 3]

Waitresses normally don't qualify as independent contractors, because the Business owner is telling her when she has to work and he is providing the tools she need to do her job, in this case, the food. But my recommendation to her was to talk to the employer and ask for a pay stub. At that time he would tell her if he thought she was a contractor or employee.If he tells her she is an independent contractor, I would go to the state labor board and file a complaint. Where I live, that is called the Job Services Department.The owner would like her to be independent, then he doesn't have to pay 1/2 of her Social Security and Medicare. Also he wouldn't have to carry workmans comp insurance or unemployment on her.It would save her employer a lot of money, but it would cost her more money in taxes.And yes, the taxes withheld are her money, her employer doesn't pay her taxes for her.except as mentioned above.

And the state normally calls the same day and they do have the power to shut down his business immediately,but normally when they call, the owner complies with the state and the problem is solved.But the owner may get ticked off and fire her, but she is better getting a job where the employer follows the laws.

But either way, the girl does owe taxes on the wages earned and the tips she receives.The government requires the employer to guess the tips at 8% of wages, but if she received more, she is required to report it on Form 4137, unreported tip income.Most waitresses don't report their extra tip income,but legally they are required to do so.

And in the OP case, reporting the extra tips might be a good thing,as it would raise her income for the Visa Application process.But if she only worked for one year,she may still have to get a sponsor, as they want to see income for the last 3 years. Bill

[Tater&Bugger 3]

personal checks? so no mention of how many hours or what your hourly rate?

anyone know how uscis feels about under the table jobs?

Same as the rest of the law, it's illegal :S

[Kristy S 13]

Waitresses normally don't qualify as independent contractors, because the Business owner is telling her when she has to work and he is providing the tools she need to do her job, in this case, the food. But my recommendation to her was to talk to the employer and ask for a pay stub. At that time he would tell her if he thought she was a contractor or employee.If he tells her she is an independent contractor, I would go to the state labor board and file a complaint. Where I live, that is called the Job Services Department.The owner would like her to be independent, then he doesn't have to pay 1/2 of her Social Security and Medicare. Also he wouldn't have to carry workmans comp insurance or unemployment on her.It would save her employer a lot of money, but it would cost her more money in taxes.And yes, the taxes withheld are her money, her employer doesn't pay her taxes for her.except as mentioned above.

And the state normally calls the same day and they do have the power to shut down his business immediately,but normally when they call, the owner complies with the state and the problem is solved.But the owner may get ticked off and fire her, but she is better getting a job where the employer follows the laws.

But either way, the girl does owe taxes on the wages earned and the tips she receives.The government requires the employer to guess the tips at 8% of wages, but if she received more, she is required to report it on Form 4137, unreported tip income.Most waitresses don't report their extra tip income,but legally they are required to do so.

And in the OP case, reporting the extra tips might be a good thing,as it would raise her income for the Visa Application process.But if she only worked for one year,she may still have to get a sponsor, as they want to see income for the last 3 years. Bill

question for you: a friend of mine here is working for a mexican restaurant, and they don't pay her AT ALL. they tell her she works for tips, and if that's not good enough then she can find another job. i know she does quite well on tips and it works out to more than minimum wage when she breaks it down, but how do they get away with that?

[Speedytax 3]

question for you: a friend of mine here is working for a mexican restaurant, and they don't pay her AT ALL. they tell her she works for tips, and if that's not good enough then she can find another job. i know she does quite well on tips and it works out to more than minimum wage when she breaks it down, but how do they get away with that?

Kristy S, they get away with it because no one wants to complain and lose their job. But you can work a commission job, such as car salesmen do. But Federal law says they have to make at least minimum wage or the employer has to pay them minimum wage.Even then, the person is an employee and will receive a W2 at the end of the year.And the employer is required to pay 1/2 the Social security, workmans comp and so on. But lets be honest, at most Mexican Restaurants, they hire illegals and illegals will take anything they can get and don't want taxes withheld, because they know they cann't file a tax return and get a refund, though there are ways they can legally do that,But if you are in the US illegally, obviously, you aren't worried about breaking the law.

[Kristy S 13]

Kristy S, they get away with it because no one wants to complain and lose their job. But you can work a commission job, such as car salesmen do. But Federal law says they have to make at least minimum wage or the employer has to pay them minimum wage.Even then, the person is an employee and will receive a W2 at the end of the year.And the employer is required to pay 1/2 the Social security, workmans comp and so on. But lets be honest, at most Mexican Restaurants, they hire illegals and illegals will take anything they can get and don't want taxes withheld, because they know they cann't file a tax return and get a refund, though there are ways they can legally do that,But if you are in the US illegally, obviously, you aren't worried about breaking the law.

actually, this one is in a small town in kansas, and i think my friend (local kansas, born and raised) is the only non-family member working for them, but they are all legal. she told me they were on the up and up with them not paying her, i just thought it odd.

[belinda63 3,030]

Minimum wage set by federal law is $2.13 per hour. They are required to pay this if the person is an employee of the company. I don't know enough about the difference between an employee and an independent contractor to state if she would fall in the later category but I believe she would be considered under the law as an employee.

[Nataliya-Ron 7]

If he's paying by personal check and she didn't fill out a W4 then i'm guessing she'll have no W2. she will have to file and just declare her earnings with the copies of the checks as proof if they ask i guess?

and there's a good chance he isn't paying into social security as well sara.

Yeah if he paying you out of pocket by personal check it could be he doing it a

temperary employee its fine and he can just submit your work as a 1099 and your

responsable for paying the federal & SS tax your self.

But he has to submit a 1099 to you and the end of the year by the end of

January 31th each new yerar if he didnt you have problems also.

Your responsibel for 3 year tax returns. if not your required to have a co sponsor to

support you in case something happens and he cant support you or you him.

The co sponsor than takes on the chore of supporting NOT THE GOVERNMENT

Make sure you kep copy of the check and make sure they match you income

your responsible for paying what ever he submits to IRS

You have to show everything to USCIS or the agency requesting the info.

It is required by US law to have taxes to prove support.

I dont know where you get miniunm wage it $2.13

FEDERAL law its more like $7.25 per hour or more in the USA

GO to the Department of Labor if you want to know exact figures....

If this guy no with doing a W-2 you i would be a little worried

your no going to be in good with the IRS unless you get a 1099

LAW STATES YOUR REQUIRED TO FILE TAXES OR A 1099 if your working.

If your not sure contact the website for the IRS and read up on

taxes and 1099 filings.

GOOD LUCK !

if he's paying her by personal check and she didn't fill out a W4 then i'm guessing she'll have no W2. she will have to file and just declare her earnings with the copies of the checks as proof if they ask i guess?

and there's a good chance he isn't paying into social security as well sara.

[Kristy S 13]

i believe they are referring to the federal tipped workers minimum wage, which i believe is 2.13, i pay my servers 2.65 an hour for the time they are actually waiting on tables, and it's my responsibility to pay them the difference if they don't make at least the regular federal minimum of 7.25 (which rarely happens if they are good servers).