Is it legal for a previous employer to withhold a W-2 wage and tax statement form from an employee?
My past employer in Ohio (2012) is telling me that he has incurred fees from cashing my check earlier than the date on the check.
My previous employer told me that he will not give me my W2 until I pay him for the fees he owes from cashing my check earlier than the date on the check. Can he legally hold my W-2? If not what should I do about getting my wage and tax statement from him? I want something in writing that states as an employee I have a legal right to my W-2 form to take to him but the IRS website has nothing on employers owing their employees their w2’s pertaining to my situation.
W-2's are not due until January 31 of the year following the year of employment. Accordingly, they are not withholding the W-2 for work in 2012 until the end of next month.
Here is What to do If You Are Missing a W-2
Before you file your 2012 tax return, you should make sure you have all the needed documents including all your Forms W-2. You should receive a Form W-2, Wage and Tax Statement, from each of your employers. Employers have until January 31, 2013 to send you a 2012 Form W-2 earnings statement.
If you haven’t received your W-2, follow these four steps:
Contact your employer If you have not received your W-2.
Contact your employer to inquire if and when the W-2 was mailed. If it was mailed, it may have been returned to the employer because of an incorrect or incomplete address. After contacting the employer, allow a reasonable amount of time for them to resend or to issue the W-2.
Contact the IRS If you do not receive your W-2 by February 14th; contact the IRS for assistance at 800-829-1040. When you call, you must provide your name, address, city and state, including zip code, Social Security number, phone number and have the following information:
Employer’s name, address, city and state, including zip code and phone number
Dates of employment
An estimate of the wages you earned, the federal income tax withheld, and when you worked for that employer during 2012. The estimate should be based on year-to-date information from your final pay stub or leave-and-earnings statement, if possible.
File your return.
You still must file your tax return or request an extension to file April 15, 2012, even if you do not receive your Form W-2. If you have not received your Form W-2 by the due date, and have completed steps 1 and 2, you may use Form 4852, Substitute for Form W-2, Wage and Tax Statement. Attach Form 4852 to the return, estimating income and withholding taxes as accurately as possible. There may be a delay in any refund due while the information is verified.
File a Form 1040X
On occasion, you may receive your missing W-2 after you file your return using Form 4852, and the information may be different from what you reported on your return. If this happens, you must amend your return by filing a Form 1040X, Amended U.S. Individual Income Tax Return.
Form 4852, Form 1040X, and instructions are available at http://www.irs.gov or by calling 800-TAX-FORM (800-829-3676).
7 lawyers agree
The answer to your specific question: can an employer refuse to issue a W2 to an employee simply because the employee owes money to the employer, is "no."
The Internal Revenue Code requires an employer to issue a W2 to an employee - including former employees - on or before Jan. 31 of the year following the year in which the employer paid wages to that employee. There are no exceptions to that rule for cases where the employer claims the employee owes money to the employer.
If your employer continues to refuse to issue you a W2 after Jan. 31, 2013, then you ought to contact the IRS to inform them of the situation. That being said, you still have to report all of your income, including the wages you earned from this employer, on your tax return for 2012, whether or not you've received a W2 from him. There is also no exemption from the obligation to file a tax return and report wages simply because you haven't received a W2 from your employer.
In addition, while I am not licensed to practice law in Ohio, I would suggest that you might want to consider contacting the Ohio Bureau of Wage & Hour Administration to find out if your employer can legally charge you fees for cashing your paycheck. There are many rules prohibiting employers for charging employees for a lot of things and it is possible that Ohio law might prohibit this employer from charging you for that fee.
My answer does not constitute legal advice and may not be relied upon by anyone for any purpose and does not constitute an attorney/client relationship or an offer to form such a relationship. This disclaimer is intended to be fully compliant with the requirements of Treasury Department Circular 230 and the terms thereof are fully incorporated by reference. If you wish to consult with me please contact me at dwatchley@newyorktaxcounsel or visit my website at www.newyorktaxcounsel.com
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Estate Planning Attorney
Mr. Walker offers a great answer. Assuming they do not want to violate the law they will send all the W2 information to the IRS. This allows cross-matching and verification - once this is sent to the IRS (after the due date) you will be able to call and inquire and obtain a copy of your "WAGE AND INCOME TRANSCRIPT) for 2012 which will have all the same information they reported for your to the IRS.
This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website: http://www.stevenzelinger.com/
First, I don't understand the issue of your past employer cashing your check prior to the date on the check. But DO NOT PAY THE EMPLOYER. There's not enough information here to determine if you owe this money or not, but I cannot think of any Ohio law that requires you to do so. Assuming you were employed by this employer in 2012, wait until after January 31 to determine if this employer sends you the W-2, anyway. If he doesn't, the link to the IRS Form to use as a substitute W-2 with instructions is below. File your returns, federal, Ohio, and local, if applicable, on time, unless you get an extension. I've been looking for about 15 minutes to find out how a non-tax professional can get a Wage and Tax Transcript without any luck. I suggest you call your closest taxpayer assistance center to try to find out how to do this. Yours is in Columbus -- (614) 280-8691, or use the link below to find any such office in Ohio. Good luck. Paul
Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. Do NOT rely on anything I have written here -- You should contact a lawyer in your area immediately after reading my posting. The following disclosure is required pursuant to IRS Circular 230: unless otherwise expressly indicated, any federal tax advice contained in this communication, including attachments and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.