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CAN MY HUSBANDS EMPLOYER CHANGE FROM 1099 TO W2 EMPLOYEE AND RETROACTIVE TAX DEDUCTIONS?

San Antonio, TX |

MY HUSBAND WAS WORKING AS A 1099 EMPLOYEE HIS EMPLOYER STATED HE WILL LIST HIM AS A W2 EMPLOYEE AND RETROEFFECTIVE THAT DATE TO DAY 1 HE WILL START DEDUCTING TAXES FROM FUTURE CHECKS FOR CURRENT DEDUCTIONS AND PAST DEDUCTIONS AS WELL . EMPLOYER STATED HE DEDUCTED FROM 2 PREVIOUS CHECKS FOR TAXES BUT NEVER SUPPLIED A STUB ON WHAT THE AMOUNT WAS AND WHERE IT WAS APPLIED HE STATED IT WAS BASED ON TEXAS 7.25% WHICH THE MATH STILL DIDNT ADD UP. CAN HE LEGALLY DO THIS ?

Attorney Answers 3


  1. The answer to this question depends upon whether or not your husband is truly a independent contractor (who receives a 1099) or an employee in the disguise of an independent contractor. Many attempt to compensate workers as an independent contractor and issue a 1099 to avoid withholding and payroll tax obligations imposed by federal law and workman's comp required by state law. If your husband's employer has been busted by the IRS or the state and he is really an employee in disguise, then it's possible they are requiring that your husband be treated as an employee subject to withholding. Having said this, usually a busted employer and not the former worker turned employee is responsible for payment of the back payroll taxes owed. I strongly recommend your husband seek the advice of an attorney experienced in payroll tax and worker classification issues.

    Any statements made by Peter G. Milne in response to the question posed is not intended to be legal advice and/or is not legal advice and/or should not be considered by the questioner or any third party reader as legal advice. Further the answering of this question is not intended to create an attorney-client relationship and/or does not create an attorney-client relationship and should not be considered by the questioner and/or any third party ready to create an attorney-client relationship. Man­dated by the Texas Dis­ci­pli­nary Rules of Pro­fes­sional Con­duct: The prin­ci­pal law office of Peter G. Milne, P.C. is located in Tyler, Texas. Attor­ney Peter G. Milne, SBOT 24037118 is the per­son respon­si­ble for the con­tent of this reply. Attor­ney Peter G. Milne has not been awarded a Cer­tifi­cate of Spe­cial Com­pe­tence by the Texas Board of Legal Spe­cial­iza­tion and has not been Cer­ti­fied by the Texas Board of Legal Spe­cial­iza­tion in the prac­tice areas of tax law, estate plan­ning, pro­bate and fam­ily law


  2. The answer is "yes," especially if you agree that the other party is an "employer." The "employer" has obviously decided that your husband is not an independent contractor, but an employee. If your husband does not have any other "customers" but the employer, that is a pretty good indication that your husband is, indeed, an employee and not an independent contractor. Go the IRS information on this topic at http://www.irs.gov/taxtopics/tc762.html to see how your husband measures up.


  3. If your husband's employer believes him to be an employee as opposed to an independent contractor, under the law, then they likely have an obligation to do so and can be fined if they do not do this.

    This answer does not constitute legal advice and you should contact an attorney to confirm or research further any statements made in this answer. Any statements of fact or law I have made in this answer pertain solely to New York State and should not be relied upon in any way in any other jurisdiction. Additionally, we also encourage you to reach out to us via Twitter (https://twitter.com/#!/employattorney) or Facebook (http://www.facebook.com/WhiteRicottaandMarks) if you have follow up questions as we do not monitor questions after providing an initial answer.

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