What do I do, legally, when a former employer will not hand over the W2s I need for filing my taxes?
I used to work for this restaurant. A little over 6 months ago it went under. They sent out the W-2 tax forms to everyone else. The only reason I know is because I called some of the other employees. I have tried to contact the restaurant over 10 times about sending me my W2 tax forms, and they will not return my emails, phone calls or Facebook messages.
I don’t know how much I made while I was there, and have no way of filing without the W2 papers from them.
Employment / Labor Attorney
Your place of employment is supposed to provide you with a W-2. You can call the IRS at 1-800-829-1040. Be prepared to provide your name, address, phone number, social security number, dates of employment and your employer/payer's name, address and phone number. The IRS can use that information to contact the employer for you and request the missing W2 tax form. They can also send you a Form 4852 (Substitute for Form W-2 or Form 1099-R).
If you do not receive the missing form in time to timely file your tax return, you can use Form 4852. If you receive the missing or corrected Form W-2 or Form 1099 after you file your return and a correction is needed, use Form 1040X (PDF) (Amended U.S. Individual Income Tax Return).
If your employer used a payroll service (like Paychex) to handle issuing checks (which you should be able to determine based on old paystubs) you might also contact them.
Answers to questions are meant to be general only, are not intended to be legal advice and do not create an attorney-client relationship. Answers to questions are based on NY law, and the laws of other states may create different rights and obligations.
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Estate Planning Attorney
Mr. Knauth offers good advice. While it may take a while, the employer is required to report all W2s it issues with a summary to the IRS about all its employees. This is how the IRS will determine if you received wages and did not report them (cross-referencing).
There is an off chance that a failing restaurant did not submit the W2s to the IRS (although if they used a payroll service it probably was done) although that would be very stupid. You could file for an extension for your 2011 tax return and over the next several month contact the IRS and ask for a "Wage and Income Transcript" to see if they report your W2 info then it can be sent to you. Then you will have the federal W2 info you need to file.
If they don't report it to the IRS the IRS will not be aware of those W2 wages you receive but you'll be obligated to report the wages to the extent you can figure out what you earned. The only problem with this approach is that if you are required to file a State income tax return the federally reported W2 info does not include state withholding information (usually). What I am saying is, it would be much better to have the W2 now.
This is not legal advice nor intended to create an attorney-client relationship.
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The previous attorneys are correct. It is the employer's duty to issue a W-2 and they can be fined for failing to do so. But in the absence of this, you can prove your income with pay stubs, or even bank statements as a final choice.
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