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What should/can I do if my employer has not given me my 1099 and W2 for 2010?

San Diego, CA |

I worked half of 2010 as a w2 employee and half of the year as 1099 employee. After many emails and in-person meetings, my former employer has yet to provide me with my w2 and 1099 documents. I learned earlier today that he hasn't kept good accounting records and has no real intention to get me the documents that I need. Furthermore, I learned that he never deposited the money that was withheld from my pay check for taxes.

What can I do? I've honestly done everything I can do to get these documents and don't feel I should be penalized for my former employers disorganization. Any advice would be greatly appreciated.

Thank you in advance.

Attorney Answers 2

  1. Report the employer to the EDD audit department. This can trigger an investigation. If the employer failed to pay required withholdings, it could be looking a severe penalties and back taxes, which will be enforced by both the state and federal government. I also would not be surprised if you were misclassified as a 1099 independent contractor when you should have been an employee. Which may lead to other complications for the employer (i.e. wage and hour and workers comp. insurance violations).

  2. The IRS requires businesses to report payments they made during the year to independent contractors. The 1099-MISC forms must be issued to any person paid at least $600 in rents, services or other income payments. Employers are required to provide Copy B to the person they are reporting to the IRS by January 31st. Copy A of the 1099-MISC form is for the IRS and the employer must file it by February 28th by mail or by March 31 if filed electronically.

    It appears that your employer is in violation of these laws. However, the law requires you to keep accurate business records and use them to prepare your tax return from those records (even if you do not have an accurate 1099). The penalty on your former employer for not providing you with the 1099 is relatively small, but the penalty on you for not filing an accurate tax return can be pretty significant. I suggest you contact the IRS directly for guidance or a tax attorney. Below is information on how to contact the IRS.

    If you feel that you should have been classified as an employee rather than an independent contractor, you may also have some claims against your employer such as overtime, meal/rest penalties, etc. If this is the case, you should also contact an employment law attorney as well.

    The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.

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