Correcting employment tax errors.

• Author: Mort, Kathleen

Correcting an employment tax error that is discovered in the year in which the error occurs is generally a simple process. However, employers often discover such errors after the close of the calendar year in which they paid the wages to an employee. The adjustment process to correct those errors is confusing and often leads to further mistakes.

The mechanical process for making adjustments of wages and related taxes varies depending on whether there is a correction to FICA taxes or to income tax withholding, whether the error is identified before or after the close of the calendar year of the wage payment, and whether there is an overpayment or underpayment of taxes. Many of these mechanical difficulties are products of the statute; unfortunately, even the most recent revised regulations have not resolved these problems (T.D. 9405, amending Regs. Sec. 31.6205-1).

Subtitle C of the Code imposes on an employer liability to withhold and pay over to the government an employee's income taxes and the employee's (one-half) share of FICA taxes on the employee's wages. The employer must also pay the other one-half share of FICA. An employer remains liable for the federal income and FICA tax withholding that it should have made, whether or not the taxes are in fact withheld (Regs. Secs. 31.3403-1 and 31.3102-1(d)).

Adjusting FICA

Underpayments: If an employer fails to withhold and pay over to the government an employee's FICA taxes, in either a current or a subsequent year the employer can make an adjustment when the error is discovered to the quarter in which the underpayment occurred. Beginning January 1, 2009, Form 941-X, Adjusted Employer's Quarterly Federal Tax Return or Claim for Refund, can be used to make the adjustment, generally on an interest-free basis under Sec. 6205. (The employer can make a similar correction for its share of FICA taxes.)

If the employer discovers the error after the calendar year of the wage payment closes, the employer provides the employee and the Social Security Administration (SSA) a corrected Form W-2 (Form W-2c, Corrected Wage and Tax Statement) reflecting additional FICA earnings for the prior year and FICA tax withholding as if the employer had made it correctly (Regs. Secs. 31.6051-2(c)(a)(c) and 31.6051-1(c)(1)).

This change to FICA wages and FICA tax withholding generally does not affect the employee's prior year individual tax return. At this point the employer has paid the employee's taxes. The...