If employer reclassifies a subcontractor to W-2 employee and files 941 forms for that year, and employee pays his half via Form 8919, does employer pay both halves (941)?

[Greta]

Form 941 asks for payment for both halves of social security tax, but employee paid his half on Form 8919.

[TaxGuyBill · Accepted solution]

Is the IRS asking for a 941?  I would think they would just sent a bill.

I haven't read this too closely, but at first glance it seems like the employer is responsible for the whole thing, plus more.

https://www.irs.gov/irm/part4/irm_04-023-008#idm139645210046880

https://www.law.cornell.edu/uscode/text/26/3509

[Just-Lisa-Now-]

Not sure there's a way for the employer to avoid both halves on the 941.    Seems like the employee would end up getting the amount paid in with the 8919 refunded to them at some point.....I've never had this situation before though.

[George4Tacks]

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[itonewbie]

I don't believe the statues and Regs provide any authority for the employer not to remit employer's and employee's portions of FICA, even though the employee is primarily responsible for his/her share of FICA until is is collected by the employer and may have paid that over by filing a F.8919.

Since your question alludes to the filing of F.8919, my presumption is that it had already been filed with your client's return.  In that case, your client could file a F.1040-X to claim a refund based on the W-2 issued for the reclassification of his/her work status.

On the other hand, the employee's portion of the FICA which the employer had paid will be considered taxable income in the year paid unless it is recovered from your client.

Hope this helps.