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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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