reply to post by hotpinkurinalmint
Just as it is with supplying a Form W-4, so it is with Social Security Numbers in that the most the employer is required
to do is
a Social Security Number:
26 USC 6109(a)(3)
(3) Furnishing number of another person 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 such return, statement, or other document, such identifying
number as may be prescribed for securing proper identification of such other person.
The CFR interprets this code as such:
26 CFR 301.6109-1(c)
(c) Requirement to furnish another's number. Every person required under this title to make a return, statement, or other document must furnish such
taxpayer identifying numbers of other U.S. persons and foreign persons that are described in paragraph (b)(2)(i), (ii), (iii), (vi), (vii), or (viii)
of this section as required by the forms and the accompanying instructions. The taxpayer identifying number of any person furnishing a withholding
certificate referred to in paragraph (b)(2)(vi) or (viii) of this section shall also be furnished if it is actually known to the person making a
return, statement, or other document described in this paragraph (c). If the person making the return, statement, or other document does not know the
taxpayer identifying number of the other person, and such other person is one that is described in paragraph (b)(2)(i), (ii), (iii), (vi), (vii), or
(viii) of this section, such person must request the other person's number. The request should state that the identifying number is required to be
furnished under authority of law. When the person making 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 (c), such person must sign an affidavit on the transmittal document forwarding such returns,
statements, or other documents to the Internal Revenue Service, so stating. A person required to file a taxpayer identifying number shall correct any
errors in such filing when such person's attention has been drawn to them. References in this paragraph (c) to paragraph (b)(2)(viii) of this section
shall apply to partnership taxable years beginning after May 18, 2005, or such earlier time as the regulations under §§1.1446–1 through 1.1446–5
of this chapter apply by reason of an election under §1.1446–7 of this chapter.
a document must be filled out and the employer has been unable to obtain the number but has made the request
, then the employer
needs only include an affidavit stating that the request
Now, consider this: Section 6723 of the Code states:
26 USC 6723
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, but the total amount imposed on such person for all such failures during any calendar year
shall not exceed $100,000.
Thus, any failure on the part of the employer to comply with a specified reporting requirement
on or before the date specified will have to pay
a fine of $50 for each such failure, BUT
such failure during any calender year shall not exceed $100. However, Section 6724(a) of that same
26 USC 6724(a)
(a) Reasonable cause waiver 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.
Since the Internal Revenue Code provides a waiver of any penalties
for any "failure" to obtain a Social Security Number, it is NOT
that the employer obtain such number or supply such number to the Internal Revenue Service. The very real FACT
individual WILL NOT
sign a tax form or supply a number after the employer made the request
, eliminates any willful neglect on the part
of the employer.
Further, there is the matter of the Immigration Reform and Control Act, codified at 8 U.S.C. 1324a(b)(1)(C), which states:
8 USC 1324a(b)(1)(C)
(C) Documents evidencing employment authorization A document described in this subparagraph is an individual’s—
(i) social security account number card (other than such a card which specifies on the face that the issuance of the card does not authorize
employment in the United States); or
(ii) other documentation evidencing authorization of employment in the United States which the Attorney General finds, by regulation, to be acceptable
for purposes of this section.
Clearly an immigrant is offered an either or situation where they may supply a Social Security Number if they have one, or
documentation evidencing authorization of employment for that immigrant. If an immigrant does not have to supply a Social Security Number, and can
prove legal residence through some other means, this is acceptable to the IRS, and since an immigrant is not required
to supply such a number,
surely those naturalized citizens residing in the U.S. don't have to do so either.
The most important thing to consider when studying these sections of the code is that if the individual is not subject to
a tax, there can be
no requirement to furnish a number, nor can there be any "failure" to do something that is not required to begin with.
For further evidence that no Social Security Number is required
in order to obtain employment, (by a reputable employer or otherwise), please
consider the following case of EEOC
EEOC v. ISC CA3-92-0169-T
The defendant ... shall be permanently enjoined from terninating an employee or refusing to hire an individual for failure to provide a social
security number.... If an employee or applicant for employment advises the defendant that he does not have a social security number....., the defndant
shall request, pusuant to Section 6724 of the Internal Revenue Service Code [sic], 26 USC 6724, a waiver of any penalties that may be imposed for
failing to include an employee social security number on forms and documents submitted to the IRS.
This is the law, however, just as my respected colleague, and trusted friend with the self depreciating user name of Hotpinkurinalmint has advised, I
will do the same and insist that nothing I have posted or stated in this thread should be construed as legal advise in any way. I am not an attorney
such as my friend HPUM. I am, however, a person presumed to know the law, and as such, it must be presumed I am more than capable, (assuming I am of
sound mind and average intelligence...I know big assumption there), of interpreting the laws as written, and this is precisely what I have done.
It should be perfectly clear, upon reading the actual Code that no requirement to fill out and sign a W-4 Form exists for an employee, (although the
employer is most certainly required to request a completed and signed form), nor is there any requirement for any employee to provide a Social
Security Number, unless
they are a "taxpayer" as specifically defined by the Code and therefore subject to
any applicable revenue
laws. For clarification I will now post the two
separate definitions that Code provides for the term "taxpayer":
26 U.S.C. 7710(a)(14)
(14) Taxpayer The term “taxpayer” means any person subject to any internal revenue tax.
26 U.S.C. 1313(b)
(b) Taxpayer Notwithstanding section 7701 (a)(14), the term “taxpayer” means any person subject to a tax under the applicable revenue law.
There is no denying that neither one of these definitions supplied have described how a person became liable for
the tax to begin with in order
to be subject to
the applicable revenue laws, and merely defines the term "taxpayer", who is one subject to and liable for a tax. Whether
everybody who earns income is a "taxpayer" as defined by the IRC, is another question entirely. My good friend HPUM and I have gone around and
around the question of liability before in this thread:
It has been my contention and continues to be, that not a single living soul can comprehend The Internal Revenue Code, including myself, and in all
likelihood my friend HPUM. The tautological nature, or circumlocution of the Code rivals that of Abbot and Costello's "Who's on First" routine,
and I would suggest "Who's on First" is infinitely easier to understand than this five volume set
of a horribly written piece of
legislation. If the IRS doesn't understand it, if judges and lawyers don't, then why should we be expected to understand it?