Severance pay not subject to FICA

What need to be done by an employee to safeguard the right to a refund in case the supreme court uphold the ruling that Severance Pay is not subject to FICA? Should the employer neglect to act or miss deadline is the employee left hanging and out of the refund? Laid off in 2013 and paid $3500 on severance pay FICA.

Thanks

Reply to
MG
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File for a refund of employment taxes withheld in error on Form 843. Read the instructions for completing Line 7.

Reply to
Alan

Just noticed that I didn't answer all your questions. An employer can file a protective refund claim to either obtain a refund of the employer and employee halves of FICA tax or they can file for a refund of just the employer half. Obviously, if they only file for themselves, you would be left "hanging out" and would have to file your own claim. In order for the employer to file for both, they would have to obtain your written consent. As far asI can tell, that written consent could be obtained after the refund claim is filed.

Reply to
Alan

Form 843 exclude the use for "employer's FICA" however the instruction seems to allow the use for for FICA overpayment. My understanding is that the operative word is "employer's", as an employee I should be right in using form 843. Correct?

Reply to
MG

Employers use Form 941/941x. You use 843.

Reply to
Alan

Is it urgent to do this if the year is recent, or should we wait for the final court decision? Seems a 2013 severance has some time before the need to file, I'm asking.

Reply to
JoeTaxpayer

2013 will remain open until 4/15/17.
Reply to
Alan

Sure, there is no rush, plus we have to wait the supreme court final decision since the IRS has dug in. I am just getting ready with information.

Reply to
MG

The only year which would need a protective claim is 2010. The deadline for filing those claims is 4/15/2014, which is likely before the court's decision is issued.

Phil Marti VITA/TCE Volunteer Clarksburg, MD

Reply to
Phil Marti

Is a protective claim also filed using form 843? Should one use the words "protective claim pending XYZ" on the form?

Reply to
remove ps

An employee (not the employer) would use Form 843. You can use whatever language you desire in explaining on Line 7 why you are entitled to the refund. Personally, I would cite United States v. Quality Stores Inc.,

693 F.3d 605 (6th Cir. 2012) as part of the reason.
Reply to
Alan

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