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At some point in the hiring process for a new job,
a new hire will be
given a Form W-4 to fill out. The reason often stated is because, "The law says so."
Actually the
law says so only for certain classes of person. If you are
not in any of those classes of person, the law does not require
you to fill out the form. Likewise, if your company is not in those
certain classes of person required to collect the information, then the
law does not
require your company to collect the form.
Form W-4 states what law applies to
itself:
The Internal Revenue Code requires this
information under sections 3402(f)(2)(A) and 6109 and their regulations.
Verify: http://www.irs.gov/pub/irs-pdf/fw4.pdf
Section 6109 and its regulations are a "mouse in a
maze looking for cheese" type of law. Mazes can be fun and
this one is. Let's go find that piece of cheese.
Let us take a look at the written
words of law that apply in
regard to giving your social security number
to a company you work for.
Internal
Revenue Code
Sec. 6109. Identifying numbers
(a) Supplying of identifying numbers
When
required by regulations prescribed by the Secretary:
(2) Furnishing
number to other
persons
Any person
with respect to whom a return, statement, or other document is required
under the authority of this title to be made
by another person
or whose
identifying number
is
required to
be shown on a return
of another person
shall
furnish to such
other person
such
identifying number as
may be prescribed
for securing his proper identification.
Clearly, if your company is required to submit a
document to the IRS with your information on it, then you must give
your number to your company as
prescribed by the Secretary's tax regulations. Conversely:
- This section does not
apply unless there is actually a requirement under the authority of this title
(Internal
Revenue Code) that requires your company to submit the
documents to the IRS.
- This section does not apply
unless the
Secretary makes it apply by prescribing regulations.
- If neither of the above is met, you are not
required to give your number to your company.
Let us take a look at the written
words of law that apply to your company in regard to asking you for
your social security
number.
Internal
Revenue Code
Sec. 6109. Identifying numbers
(a) Supplying of identifying numbers
When
required by regulations prescribed by the Secretary:
(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.
If your company is required to submit a
document to the IRS with your number
on it, your company is required to ask you for your number,
and your company is required to put it on their document as
prescribed by the Secretary's tax regulations.
- This section does not
apply unless there is actually a requirement under the authority of this title
(Internal
Revenue Code) that requires your company to submit
the
documents to the IRS.
- This section does not apply
unless the
Secretary makes it apply by prescribing regulations.
- If neither of the above is met, you are not
required to give your number to your company.
So let's turn another corner in this maze and find
the
regulations that apply.
Code
of Federal Regulations
Information and Returns
Sec. 301.6109-1 Identifying numbers.
(b) Requirement to furnish one's own number--
(1) U.S. persons.
A U.S. person whose number must be included on a document filed by
another person must give the taxpayer identifying number so required to
the other person on request.
If your company is required to put your number on
its document, you are required to give your number to your company.
- If your company is not
required to put your number on its document, you are not
required to give your number to your company.
- This regulation does not tell
you if your company is required to put your number on its document.
- Therefore, this regulation by itself
does not
require you to give your number to your company.
Code
of Federal Regulations
Information and Returns
Sec. 301.6109-1 Identifying numbers.
(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.
Your company is required to furnish your
number
on its
form if you are described in the
cited paragraph sections.
- If the cited paragraph does not
describe you, then your company is not
required to put your number on its form.
- If the cited paragraph does not
describe you, then you are not
required to give your number to your company.
Sec.
301.6109-1 Identifying numbers.
(c) Requirement to furnish another's number.
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.
If your company does not know
your number, and
you are
described in the cited paragraph, your company is required to
request your
number "under authority
of law".
- If you are not
described in the cited paragraph, your number is not "required to be furnished under
authority of law".
Let's get that piece of cheese. Let's see if you
are described in the cited paragraph.
Code
of Federal Regulations
Sec. 301.6109-1 Identifying numbers.
(b) Requirement to furnish one's own number--
(2) Foreign persons.
(i) A foreign person
that has income effectively connected [...]
(ii) A foreign person
that has a U.S. office or [...]
(iii) A nonresident alien
treated as a resident under section 6013 [...]
(vi) A foreign person
that furnishes a withholding certificate [...]
(vii) A foreign person
whose taxpayer identifying number is [...]
(viii) A foreign person
that furnishes a withholding certificate [...]
If you are a foreign person or a nonresident
alien, then your "identifying
number is required to be furnished under authority of law."
- If you are not a
foreign person or a nonresident alien, then your "identifying number is"
not
"required to be
furnished under authority of law."
I am not within
the class of person to which section 6109 applies. Are you?
With section 6109 and its regulations found to be
without application, that leaves section 3402(f)(2)(A) and its
regulations as the only other avenue to require one to fill out a W-4
form.
TITLE
26 - INTERNAL REVENUE CODE
Subtitle C - Employment Taxes
CHAPTER 24 - COLLECTION OF INCOME TAX AT SOURCE ON WAGES
Sec. 3402. Income tax collected at source
(f) Withholding exemptions
(2) Exemption certificates
(A) On commencement of employment
On or before the date of the commencement of employment with an employer, the employee shall
furnish the employer
with a signed withholding exemption certificate relating to the number
of withholding exemptions which he claims, which shall in no event
exceed the number to which he is entitled.
Are you an "employee"?
Is your company an "employer"?
Are you paid "wages"?
DO
NOT ANSWER THE QUESTIONS UNTIL YOU READ THE STATUTORY DEFINITIONS!
The statutory definitions are found in section
3401.
TITLE
26 - INTERNAL REVENUE CODE
Subtitle C - Employment Taxes
CHAPTER 24 - COLLECTION OF INCOME TAX AT SOURCE ON WAGES
Sec. 3401. Definitions
(a) Wages
For purposes of this chapter, the term "wages" means all
remuneration (other than fees paid to a public official) for
services performed by an employee
for his employer,
including the
cash value of all remuneration (including benefits) paid in any
medium other than cash; except that such term shall not include [things that
don't matter for the purpose of this web page.]
- Please note that the statutory definition of "wages" is dependent
upon the statutory definition of "employee".
- If you are not an
employee, you are not
paid
wages.
- If your company is not an
employer,
you are not
paid wages.
This is an example of law that is designed to make
you think it says something other than what it actually says. You must look at the statutory definition of "employee" to
know what this law is actually saying.
TITLE
26 - INTERNAL REVENUE CODE
Subtitle C - Employment Taxes
CHAPTER 24 - COLLECTION OF INCOME TAX AT SOURCE ON WAGES
Sec. 3401. Definitions
(d) Employer
For purposes of this chapter, the term "employer" means the
person for whom an individual performs or performed any service, of
whatever nature, as
the
employee
of such person, except that - [these
exceptions don't matter for the purpose
of this web page.]
- Please note that the statutory definition of "employer" is
dependent upon the statutory definition of "employee".
- If you are not an
employee,
your company is not
an
employer.
This is another example of law that is designed to make
you think it says something other than what it actually says. In this case, the gobbledegook
is
readily apparent when pointed out.
You must look
at the statutory definition of "employee"
to know what this law is saying.
TITLE
26 - INTERNAL REVENUE CODE
Subtitle C - Employment Taxes
CHAPTER 24 - COLLECTION OF INCOME TAX AT SOURCE ON WAGES
Sec. 3401. Definitions
(c) Employee
For purposes of this chapter, the term "employee"
includes an officer, employee, or elected official of the United
States, a State, or any political subdivision thereof, or the District
of Columbia, or any agency or instrumentality of any one or more of the
foregoing. The term "employee"
also includes an officer of a corporation.
For the purposes of collecting an income
tax at source on wages, the employees which the law applies to are
officers, employees, and elected officials of the (federal)
'government' and the officers of federal
corporations
like the TVA
or the BPA.
- If
you are not
an employee as defined in this definition, then you are not an
employee required to fill out an IRS Form W-4.
I am not
within the class of person to
which section 3402(f)(2)(A) applies. Are you?
My
dictionary defines a "class"
as "A set, collection,
group, or configuration containing members regarded
as having certain attributes or traits in common; a kind or category."
Understanding that section 3402(f)(2)(A) applies
to the class of person defined in section 3401(c) is important to
understanding who the law acts upon, and how the Status
Quo Brigade will
attempt to corrupt that understanding when they attack what you have
just read.
The word "includes"
is a word
of limitation, but based upon context can be a word of limited
expansion. The Status Quo Brigade
argue the word "includes"
creates unlimited
expansion by citing another law that is meant to create
misunderstanding and make you believe
"includes" is a term of unlimited
expansion. That law is specifically
addressed elsewhere on this website. Meanwhile:
in·clude tr.v. in·clud·ed,
in·clud·ing, in·cludes. 1. To take in as a
part, an element, or a member. 2.
To contain as a secondary or subordinate element. 3. To consider with
or place into a group, class, or total.
[Middle English includen,
from Latin inclūdere, to enclose : in-,
in; see IN-2
+ claudere,
to close.]
Source: American
Heritage Electronic Dictionary
The root word of includes means to enclose;
to surround on all sides; close in. Swapping thesaurus
synonyms into the
first part of the definition statute makes clear what the Status
Quo Brigade intends to obfuscate.
- the term "employee" includes an officer,
employee, or elected official
- the term "employee" encloses an officer,
employee, or elected official
- the term "employee" contains an officer,
employee, or elected official
- the term "employee" embodies an officer,
employee, or elected official
- the term "employee" embraces an officer,
employee, or elected official
- the term "employee" encompasses an
officer, employee, or elected official
- the term "employee" incorporates an
officer, employee, or elected official
- the term "employee" involves an officer,
employee, or elected official
- the term "employee" takes in an officer,
employee, or elected official
The root word and all the synonyms make it clear
that
the purpose of the law is to identify a class of persons and to limit
to that class only those persons having characteristics common
to
the class.
In this case, being paid by the federal government
(an excise taxable
privilege) is the characteristic in common for all members of the
class.
Return to where you left the U.S.
Federal Income Tax page.
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