Severance pay not subject to FICA

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

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.

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?

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

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.

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.

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

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

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.,