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I was misclassified as an independent contractor in 2011 and I therefore received a 1099-MISC and filed as such. I should have been considered an employee and been issued a W-2 instead.

I therefore want to file form 1040x. I already tried once, but it got rejected since I wasn't able to provide a W-2. I was told to file form SS8 as well.

My question is: will that be sufficient? Or are there any other forms I should file? For example, I know there exists Form 4852 (Substitute for Form W-2, Wage and Tax Statement).

In case it matters, I'm not sure if my former employer ever corrected this misclassification with the federal government. I believe they corrected it at least with the state of MA. I can show that I filed as a W-2 (with the same company) in 2010, and can provide my W-2 from 2012 as evidence as well. I will also include an email exchange I had with my former boss where he acknowledges the mistake and tells me to refile my 2011 taxes.

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  • How was social security withholding addressed? Did you pay double the amount in 2011?
    – mhoran_psprep
    Jul 12, 2013 at 16:39
  • Who said you were misclassified to begin with? If it was the IRS/SSA - how come the employer wasn't forced to correct? Its a serious offence. Or you decided that on your own?
    – littleadv
    Jul 12, 2013 at 16:45
  • I'm saying that I was misclassified, and I have my former employer on record essentially agreeing.
    – maxedison
    Jul 12, 2013 at 19:53

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First suggestion - talk to a State-licensed tax practitioner (CPA in your state), because this can be nasty.

As I mentioned in the comments - its a serious offence, and your employer may get in trouble. But the fact that you (or your boss) think you were misclassified doesn't necessarily make you so.

For you it is of course better to be a W2 employee - less FICA. But on the other hand - also less withholding (probably too late to worry about it now), less unemployment compensation, less worker's compensation, etc.

For employer 1099 is better for the same reasons: they don't need to pay payroll taxes (FICA/FUTA/State taxes/insurance/etc), less liability and less benefits.

That is why such a misclassification is an offence, and a serious one, for the employer. They won't admit it unless they have to, and if they have to - they will have to correct.

However since its a prior year, some things may be difficult to address properly now and you may be stuck.

Its not just a matter of forms. I suggest taking this to a professional consultation. Don't take tax advice from your boss.

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