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My employer where I worked for 2 months last year (at the end of 2015/beginning of 2016) isn't able/willing to generate W-2 for whatever reasons. I see on the IRS website that if he doesn't get back to me by Feb 14, I need to call the IRS, and they will call the employer to generate a W-2. Has anyone done this before? Also, is it really required to wait until Feb 14, as I am 100% sure he is not going to do anything about it? Can I call IRS now or after Jan 31st?

For more background, see my question from last year, in which I ask about the same employment period for last year's taxes.

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    You mention on your other thread you "weren't on payroll" for this employer. It really sounds like you were a contractor. Will you be getting a 1099 form instead? – Carl Veazey Jan 24 '17 at 0:27
  • @CarlVeazey officially, as per the offer letter, I was a full time employee. That employer messed up everything. Initially he told me I was in payroll and then after my resignation he said I wasn't on payroll. – John Jan 24 '17 at 0:32
  • Is this the same employer as last year? How did you get yourself in this situation twice? – Ben Miller - Reinstate Monica Jan 24 '17 at 0:42
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    @BenMiller same employer. It didn't happen twice. Since I got my salary in 2016 I am dealing with all of this in 2017. I never worked for that employer after feb 2016 – John Jan 24 '17 at 0:44
  • @John I understand now. Thanks for the explanation. – Ben Miller - Reinstate Monica Jan 24 '17 at 0:45
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Daniel Carson provided a good answer to your specific question, but it's possible you may not even need a W2 to complete your taxes.

In a comment from your thread from last year, Ben Miller asked if you received a paystub, and your response was:

No. It's just a check with an X amount payable to me. No pay stub or anything else.

The most important thing is to determine if you were paid as an employee or a contractor. Do you remember if you filled out a W4 (employee) or W9 (contractor) form?

Was the amount of the check equal to the amount you agreed to get paid according to the contract you signed?

  • If yes, then it is very likely that you were paid as if you were an independent contractor, and if the total amount you were paid in 2016 was more than $600, you should be receiving a 1099 form in the mail, but even if you don't you can still file your taxes based on the exact total amount you were paid.
  • If no, (your check was for less than the the contracted amount), then you were likely paid as an employee with taxes withheld. In this case you should receive a W2, and if you don't your former employer is obligated to provide you with one, and you can proceed as planned by contacting them, or the IRS if they need an extra nudge.

Update: In a comment below, Joe pointed out that if you file as if you received a 1099 you would also be paying the employer portion of FICA, and I agree with him that this may be unfair. Normally, if you can't decide if you are an employee or an independent contractor, there is a set of rules which help determine it, and the scale is heavily weighted towards being an employee. I have heard of many cases of the IRS reclassifying independent contractors as employees, but I have never heard of a single case of the reverse. Therefore, since you have a contract with your employer specifying that you would be an employee, IMHO that by itself should be proof enough that this was the intention under which your work was performed, and you should not be held liable for the employer portion of FICA. Unfortunately, in order to avoid paying it, you may have to fill out additional paperwork. Note the amount you will save will be 7.65% of the amount you were paid from that employer, (unless you made more than $118,500 in 2016, in which case it will be less), so that may help you determine if it's worth it.

If you decide to save the 7.65%, instead of filing as if you received a 1099, you can follow these instructions. In your case, the first bullet point applies to you:

You had a job and your employer ended up not paying you as an employee, but as a freelancer.

(You actually don't know with 100% certainty what your employer was thinking, but based on our conversation in the comments I think it's extremely likely that no taxes were withheld or paid.)

The summary of what the article describes is that you'll need to fill out Form 8919 and Form SS-8.

  • Thanks for your answer. The total amount for two months was more than $600. The offer letter says that I was a full-time employee of the company and the employer never gave me W4 or W9 form. It was a startup company without any physical office location where people were working from home.The employer agreed to pay X amount and because of financial loss in the company, he paid me one fourth of the promised amount. I am still waiting for the deferred payment. – John Jan 24 '17 at 2:50
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    Yikes. That's unfortunate. I'd bet they did not withhold any taxes, so despite the contract specifying you were an employee, you should most likely file as if they sent you a 1099 for the exact amount they paid you. I wouldn't hold your breath waiting for anything from them. – TTT Jan 24 '17 at 2:57
  • Filing as 1099 I believe means that I will have to pay out of my pocket if I am not wrong. – John Jan 24 '17 at 3:08
  • Correct. Unless your employer withheld some of your pay and gave it to the tax authorities, then you will have to pay your taxes yourself. – TTT Jan 24 '17 at 13:25
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    If he files as 1099, he'd have to pay both sides of employment taxes. I don't know that he should have to pay employer side of those taxes, even if employer folded and failed to pay them, should he? – Joe Jan 25 '17 at 22:08
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Can I call IRS now or after Jan 31st?

The IRS says this: "If you are unable to get a copy from your employer, you may call the IRS at 800-829-1040 after Feb. 23." Unfortunately, it does not look like the IRS will take any steps until after February 23. Before that date, they recommend you contact your employer.

  • Hmm, I have already contacted him. Will see if he responds – John Jan 24 '17 at 0:33
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    +1. The W-2 deadline is Jan 31, and the IRS won't deal with missing W-2 complaints until after that deadline has passed and time has been allowed for the form to arrive through the mail. – Ben Miller - Reinstate Monica Jan 24 '17 at 1:02

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