Philip E. Lucas - Page 4




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          party liable for such taxes.  He relies on IRS Publication 15                 
          (Pub 15), known as “Circular E, Employer’s Tax Guide”:                        
               You [meaning the employer] will be liable for Social                     
               Security and Medicare taxes and withheld income tax if                   
               you do not deduct and withhold them because you treat                    
               an employee as a nonemployee.  See Internal Revenue                      
               Code section 3509 for details.                                           
               Because IRS publications are not authoritative sources of                
          Federal tax law, see Zimmerman v. Commissioner, 71 T.C. 367, 371              
          (1978), affd. without published opinion 614 F.2d 1294 (2d Cir.                
          1979); Green v. Commissioner, 59 T.C. 456, 458 (1972), we must                
          necessarily consult section 3509.  Indeed, Pub 15 itself directs              
          the reader to consult that section "for details".                             
               Section 3509 provides, as a general rule, that an employer               
          who fails to withhold income tax from an employee's wages by                  
          reason of treating such employee as not being an employee for                 
          withholding purposes shall be liable for income tax as if the                 
          amount required to be withheld were equal to 1.5 percent of the               
          wages paid to such employee.  However, section 3509(d)(1)                     
          specifically provides that the employee's liability for income                
          tax shall not be affected by the assessment or collection of any              
          tax determined against the employer under section 3509.  In other             
          words, the employee remains fully liable for income tax arising               
          from the receipt of gross wages.  See Navarro v. United States,               
          72 AFTR 2d 93-5424 (W.D. Tex. 1993); see also Stewart v. United               
          States, 55 AFTR 2d 85-506, 84-2 USTC par. 9962 (E.D. Wis. 1984).              





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