CORRECTING ERRONEOUS IRS FORM 1042's
Form #04.003

TABLE OF CONTENTS:
  1. Why must correct Erroneous Reports?
  2. Background on IRS Form 1042
  3. Correction Procedure
  4. How the Information Return Correction Process Works
  5. Where to File Corrected Information Returns
  6. Examples
  7. Frequently Asked Questions
  8. Saving and Reusing Completed Forms
  9. Stopping the false 1042 reports from being filed in the first place
  10. Keeping Records of all Information Returns
  11. Further Reading and Research

1.  Why Must Correct Erroneous Reports?

The only parties who can use this website are "nonresidents" but not "aliens" or "taxpayers", who are not engaged in the "trade or business" franchise and who use the following forms to control their withholding in the priority presented, where the highest priority is the lowest number:

  1. PDF Affidavit of Citizenship, Domicile, and Tax Status, Form #02.001

  2. About IRS form W-8BEN, Form #04.202 (Compliant Members Only form)

  3. STANDARD IRS form W-8BEN with the following attached:
    PDF Tax Form Attachment, Form #04.201

IRS Publication 515, entitled "Withholding of Tax on Nonresident Aliens and Foreign Corporations", year 2000, says the following on page 3:

"Foreign persons who provide Form W–8BEN, Form W–8ECI, or Form W–8EXP (or applicable documentary evidence) are exempt from backup withholding and Form 1099 reporting."
[IRS Publication 515, year 2000, p. 3]

The backup withholding they are talking about above includes that indicated in the IRS' website for "nonresident aliens"

TIN Requirement

Generally, if a Taxpayer Identification Number (TIN) is not provided on Form 1042-S, the withholding agent must apply tax at a rate of 30% (30.00).  The TIN, name, and address of the recipient are required to be entered on the annual information forms for identification of the payee. 

[. . .]

Completion of Withholding Certification

Unless there is an exception, any withholding agent who receives a Form 8233 or, generally, a W-8BEN without a payee TIN for the purpose of claiming a tax treaty benefit is not allowed to grant that benefit until a proper Form 8233 or W-8 BEN that does report the payee's TIN is received.  In short, this means that, in the case of payments to nonresident aliens, if an NRA does not report his/her TIN to the withholding agent or does not meet an exception, the withholding agent is required to withhold 30% federal income tax on the payment(s) and the NRA is not entitled to any tax treaty benefit until a TIN is provided.

[SOURCE:  http://www.irs.gov/businesses/small/international/article/0,,id=132273,00.html]

Note the careful wording of the last paragraph above.  A nonresident alien wanting to claim an "exemption" of "gross income" under a a treaty MUST provide a TIN, whether they submit IRS form 8233 or form W-8BEN.  This situation could only apply to a statutory "U.S. citizen" pursuant to 8 U.S.C. 1401 or "resident alien" pursuant to 26 U.S.C. 7701(b)(1)(A) when abroad pursuant to 26 U.S.C. 911.  It would NOT apply to:

  1. A person who was not abroad pursuant to 26 U.S.C. 911, such as a nonresident alien domiciled in a state of the Union or any place not within the federal zone.
  2. A person who, even though abroad pursuant to 26 U.S.C. 911, is not claiming a an "exemption" of "gross income" by virtue of a tax treaty with a foreign nation.
  3. A person who does not have a "Taxpayer Identification Number". 

    3.1  A "Social Security Number" is NOWHERE defined in 26 U.S.C. 6109 as a "Taxpayer Identification Number".  Yes, 26 U.S.C. 6109(d) does authorize the use of SSN's as an "identifying number", but nowhere are they authorized or required to be used as a "Taxpayer Identification Number".  The top of IRS form W-7, in fact, says "For use by individuals who are not U.S. citizens or nationals", which is exactly what an "alien" is.  Pursuant to 26 CFR 301.6109-1(d)-3 and IRS form W-7, only "aliens" may lawfully be issued "Taxpayer Identification Numbers".  26 U.S.C. 7701(a)(41) makes an SSN equivalent to a "TIN", but nowhere is a TIN made equivalent to a "Taxpayer Identification Number".  The reason they didn't do this is that they cannot make you into a "Taxpayer" under I.R.C. Subtitle A without your consent.  Click here for details

    3.2  SSNs are issued pursuant to 20 CFR 422.104 to statutory "U.S. citizens" as defined in 8 U.S.C. 1401 and statutory "resident aliens" as defined in 26 U.S.C. 7701(b)(1)(A).  Statutory "U.S. citizens" and "aliens" are not interchangeable groups unless the "U.S. citizen" is abroad and coming under a tax treaty with a foreign country and the IRS has no statutory or regulatory authority to convert an SSN into a "Taxpayer Identification Number".  In fact, their Individual Master File (IMF) has a "VAL" field used by the computer to indicate that the number being used is NOT A VALID TIN issued pursuant to an IRS form W-9, and when this happens, the IRS isn't even allowed to lawfully use any of the information in the master file because it is INVALID.  Click here for details.

We remind our readers that:

  1. Only Members may use this website, and that all Members are "nonresident aliens" not engaged in a "trade or business" and who have no earnings from the "United States" (U.S. government) and who therefore do not need and should not claim the benefit of any tax treaty, because they do not earn "gross income" within the meaning of 26 U.S.C. 871
  2. BOTH the IRS form 8233 (Part II, blocks 11-18) AND IRS form W-8BEN (Part II, blocks 9-10) have a place to claim an "exemption" of "gross income" based on a tax treaty, and those who check these blocks and thereby avail themselves of the "privileges" (financial subsidies) associated with said treaty to reduce their ACTUAL tax liability are the ONLY ones required to provide a TIN.  For all others, a TIN is optional AND the person filling out the IRS form 1042-S CANNOT and SHOULD NOT do backup withholding.
  3. You can investigate the requirement for backup withholding further by reading our free training course below, which is item #3.10 in our Liberty University:
    Income Tax Withholding and Reporting, Item #3.10
    http://sedm.org/LibertyU/LibertyU.htm

The fact that "nonresident aliens" not engaged in a "trade or business" are not subject to withholding, including that mentioned above, is further reiterated both in the statutes, regulations, and even in the Form 1042-S Instructions themselves below:

  1. IRS Form 1042-S Instructions:

    Who Must File

    Every withholding agent (defined on page 2) must file an information return on Form 1042-S to report amounts paid during the preceding calendar year that are described under Amounts Subject to Reporting on Form 1042-S on page 4.  However, withholding agents who are individuals are not required to report a payment on Form 1042-S if they are not making the payment as part of their trade or business and no withholding is required to be made on the payment.

    [IRS Form 1042-S Instructions, Year 2006, p. 2]

  2. IRS Form 1042-S itself:

    U.S. Income Tax Filing Requirements

    Every nonresident alien individual, nonresident alien fiduciary, and foreign corporation with United States income, including income that is effectively connected with the conduct of a trade or business in the United States, must file a United States income tax return.  However, no return is required to be filed by a nonresident alien individual, nonresident alien fiduciary, or a foreign corporation if such person was not engaged in a trade or business in the United States at any time during the tax year and if the tax liability of such person was fully satisfied by the withholding of United States tax at the source. (Corporations file Form 1120-F; all others file Form 1040NR(or Form 1040NR-EZ if eligible).) You may get the return forms and instructions at any United States Embassy or consulate or by writing to: National Distribution Center, P.O. Box 8903, Bloomington, IL61702-8903, U.S.A.

    [IRS Form 1042S, Year 2006, p. 3]

  3. IRS Publication 519 says that earnings of a nonresident alien from without the "United States" [District of Columbia] that is not connected with a "trade or business" is not taxable.

    Income Subject to Tax

    Income from sources outside the United States that is not effectively connected with a trade or business in the United States is not taxable if you receive it while you are a nonresident alien. The income is not taxable even if you earned it while you were a resident alien or if you became a resident alien or a U.S. citizen after receiving it and before the end of the year.

    [IRS Publication 519, Year 2000, p. 26]

  4. 26 U.S.C. 871(b)(2) says that only earnings connected with a "trade or business" are taxable on a 1040 form, ALL OF WHICH refers to sections 1 and 55 of Title 26:

    TITLE 26--INTERNAL REVENUE CODE
    Subtitle A--Income Taxes
    CHAPTER 1--NORMAL TAXES AND SURTAXES
    Subchapter N--Tax Based on Income From Sources Within or Without the United States
    PART II--NONRESIDENT ALIENS AND FOREIGN CORPORATIONS
    Subpart A--Nonresident Alien Individuals
    Sec. 871. Tax on nonresident alien individuals

    (b) Income connected with United States business--graduated rate of tax
     (1) Imposition of tax
            A nonresident alien individual engaged in trade or business within the United States during the taxable year shall be taxable as
        provided in section 1 or 55 on his taxable income which is effectively connected with the conduct of a trade or business within
        the United States.
    (2) Determination of taxable income
            In determining taxable income for purposes of paragraph (1), gross income includes only gross income which is effectively
        connected with the conduct of a trade or business within the United States.

  5. 26 CFR 31.3401(a)(6)-1 says that nonresident aliens whose earnings originate from outside the District of Columbia or which are not connected with a "trade or business" are not subject to withholding:

    Title 26
    PART 31—EMPLOYMENT TAXES AND COLLECTION OF INCOME TAX AT SOURCE
    Subpart E—Collection of Income Tax at Source
    31.3401(a)(6)-1   Remuneration for services of nonresident alien individuals.

    (a) In general.

    All remuneration paid after December 31, 1966, for services performed by a nonresident alien individual, if such remuneration otherwise constitutes wages within the meaning of 31.3401(a)–1 and if such remuneration is effectively connected with the conduct of a trade or business within the United States, is subject to withholding under section 3402 unless excepted from wages under this section. In regard to wages paid under this section after February 28, 1979, the term “nonresident alien individual” does not include a nonresident alien individual treated as a resident under section 6013 (g) or (h).

    (b) Remuneration for services performed outside the United States.

    Remuneration paid to a nonresident alien individual (other than a resident of Puerto Rico) for services performed outside the United States is excepted from wages and hence is not subject to withholding.

  6. 26 U.S.C. 3406(g) and 26 CFR 31.3406(g)-1(e) both say that foreign persons (which includes "nonresident aliens") are not subject to backup withholding or information reporting

    TITLE 26 > Subtitle C > CHAPTER 24 > 3406
    3406. Backup withholding

    (g) Exceptions

    (1) Payments to certain payees Subsection (a) shall not apply to any payment made to— (A) any organization or governmental unit described in subparagraph (B), (C), (D), (E), or (F) of section 6049 (b)(4), or (B) any other person specified in regulations.

    (2) Amounts for which withholding otherwise required Subsection (a) shall not apply to any amount for which withholding is otherwise required by this title.

  7. 26 CFR 31.3121(b)-3 says that persons working outside the District of Columbia are not involved in "employment" under Subtitle C of the Internal Revenue Code

    Title 26: Internal Revenue
    PART 31—EMPLOYMENT TAXES AND COLLECTION OF INCOME TAX AT SOURCE
    Subpart B—Federal Insurance Contributions Act (Chapter 21, Internal Revenue Code of 1954)
    General Provisions
    31.3121(b)-3   Employment; services performed after 1954.

    "(c) Services performed outside the United States—

    (1) In general. Except as provided in paragraphs (c)(2) and (3) of this section, services performed outside the United States [District of Columbia, as defined in 26 U.S.C.  7701(a)(9) and (10)] (see 31.3121(e)–1) do not constitute employment."

There are LOTS more citations like those above, which you can read by clicking here.  What the IRS "conveniently" overlooks and omits and refuses to mention in their article, to their own unlawful financial benefit we might add, are the following provisions within the I.R.C.:

  1. That a nonresident aliens who submit IRS form W-8BEN to the withholding agent can exempt themselves from backup withholding.  See Pub 515 above.
  2. That the only way you can be subject to involuntary backup withholding is if you claim financial benefits called "exemptions" from a tax treaty.  See the following article on the IRS website pointed out at the beginning of this page:
    http://www.irs.gov/businesses/small/international/article/0,,id=132273,00.html
  3. The term "U.S. sources" is legally defined as ONLY "income" originating from within the District of Columbia or the U.S. Government.  26 U.S.C. 7701(a)(9) and (a)(10), 26 U.S.C. 7701(a)(39), and 26 U.S.C. 7408(d) all confirm that I.R.C. Subtitle A is really a tax upon instrumentalities of the U.S. government in the District of Columbia.
  4. That there is no reason to withhold on a person who has no tax liability.  26 CFR 1.871-2(f) says that "nonresident aliens" with no "trade or business" earnings have no tax liability.
  5. Involuntary backup withholding pursuant to 26 U.S.C. 3401 is only authorized on "nonresident aliens" engaged in a "trade or business" and may NOT be lawfully instituted against those NOT engaged in a "trade or business".
  6. The IRS form 1042 is an "information return".  26 U.S.C. 6041 says that information returns may ONLY be completed in the case of transactions connected with a "trade or business", which is defined in 26 U.S.C. 7701(a)(26) as "the functions of a public office".
  7. Few nonresident aliens domiciled in states of the Union are actually engaged in a "public office"/"trade or business", and therefore few qualify for the filing of information returns.  Those "nonresident aliens", in fact, who are not engaged in a "trade or business" are identified as a "foreign estate" in 26 U.S.C. 7701(a)(31), none of whose earnings are subject to tax OR withholding of any kind.
  8. Private companies are not lawfully allowed to act as "withholding agents" as defined in 26 U.S.C. 7701(a)(16) and pursuant to 26 U.S.C. 1461.  A party can ONLY act as a withholding agent when explicitly authorized by the Secretary of the Treasury pursuant to IRS form 2678 and 26 U.S.C. 3504.  Chances are, those private companies who "think" they are "withholding agents" in fact DO NOT and CANNOT lawfully qualify as "withholding agents".  A private company that is engaged in a "trade or business" is NOT a "private company", but a "public company" that essentially is a business partner and instrumentality of the U.S. government.  Click here (OFFSITE LINK) for details.
  9. You cannot hold a "public office" without authority from Congress, pursuant to 4 U.S.C. 72.  The Internal Revenue Code doesn't authorize any "public offices" outside the District of Columbia in connection with the Internal Revenue Code, so no one in a state of the Union can lawfully be engaged in a "public office", even if they think or act like they are.

    "Congress cannot authorize a trade or business within a State in order to tax it.” 

    [License Tax Cases, 72 U.S. 462, 18 L.Ed. 497, 5 Wall. 462, 2 A.F.T.R. 2224 (1866)]

Therefore, it is obvious that the IRS, by its vague article on IRS Form 1042's above, is deliberately trying to deceive and mislead private employers and companies into committing perjury under penalty of perjury on the 1042-S and 1042-T information returns they submit in order to ILLEGALLY manufacture more "taxpayers" out of those who are not liable.  This injury to those not engaged in a "trade or business", as usual, is occurring primarily because of a willful omission of ALL of the pertinent facts that would allow withholding to be properly and lawfully executed.  Does this surprise you?

The term "trade or business" is legally defined as follows:

26 U.S.C. Sec. 7701

"The term 'trade or business' includes the performance of the functions of a public office."

"public office" as used above is then legally defined as follows:

Public office

“Essential characteristics of a ‘public office’ are:

(1) Authority conferred by law,

(2) Fixed tenure of office, and

(3) Power to exercise some of the sovereign functions of government.

(4) Key element of such test is that “officer is carrying out a sovereign function’.

Essential elements to establish public position as ‘public office’ are:

       Position must be created by Constitution, legislature, or through authority   conferred by legislature.

       Portion of sovereign power of government must be delegated to position,

       Duties and powers must be defined, directly or implied, by legislature or through legislative authority.

        Duties must be performed independently without control of superior power other than law, and

        Position must have some permanency.”

[Black’s Law Dictionary, Sixth Edition, p. 1230]

Nowhere in the entire I.R.C. or any IRS publication is the above definition of "trade or business" expanded to include any activity other than a "public office", which is defined above, and therefore it is all-inclusive and limited to "public offices".  This is also confirmed by the rules of statutory construction, which say on this subject:

Expressio unius est exclusio alterius.  A maxim of statutory interpretation meaning that the expression of one thing is the exclusion of another.  Burgin v. Forbes, 293 Ky. 456, 169 S.W.2d 321, 325; Newblock v. Bowles, 170 Okl. 487, 40 P.2d 1097, 1100.  Mention of one thing implies exclusion of another.  When certain persons or things are specified in a law, contract, or will, an intention to exclude all others from its operation may be inferred.  Under this maxim, if statute specifies one exception to a general rule or assumes to specify the effects of a certain provision, other exceptions or effects are excluded.”
[Black’s Law Dictionary, Sixth Edition, page 581]

The requirement for Information Returns, including the IRS form 1099, originates from Internal Revenue Code section 6041, which says under paragraph (a) that all payments of over $600 that are made in connection with a "trade or business" must have Information Returns filed on them.  To wit:

TITLE 26 > Subtitle F > CHAPTER 61 > Subchapter A > PART III > Subpart B > 6041
6041. Information at source

(a) Payments of $600 or more

All persons engaged in a trade or business and making payment in the course of such trade or business to another person, of rent, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, or other fixed or determinable gains, profits, and income (other than payments to which section 6042 (a)(1), 6044 (a)(1), 6047 (e), 6049 (a), or 6050N (a) applies, and other than payments with respect to which a statement is required under the authority of section 6042 (a)(2), 6044 (a)(2), or 6045), of $600 or more in any taxable year, or, in the case of such payments made by the United States, the officers or employees of the United States having information as to such payments and required to make returns in regard thereto by the regulations hereinafter provided for, shall render a true and accurate return to the Secretary, under such regulations and in such form and manner and to such extent as may be prescribed by the Secretary, setting forth the amount of such gains, profits, and income, and the name and address of the recipient of such payment.

It is quite common for financial institutions and private companies to misapply the state and federal revenue "codes", and especially the provision above.  Notice we didn't says "laws" (OFFSITE LINK), because the Internal Revenue Code (OFFSITE LINK) Subtitle A, not being enacted into positive law (OFFSITE LINK) , can only be "private law" that attaches to the individual through explicit consent.  Instead, it is only "a decree under legislative forms" [tyranny, in fact] as the Supreme Court describes it below.  Neither does the Internal Revenue Code Subtitle A describe a lawful "tax" (OFFSITE LINK) in most cases either, except where the individual has given consent by choosing to involve in excise taxable activity called a "trade or business".  Instead, it is a "bible" that describes a state-sponsored religion, not a public law:

"To lay, with one hand, the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law and is called taxation.  This is not legislation [law].  It is a decree under legislative forms.

Nor is it taxation.  ‘A tax,’ says Webster’s Dictionary, ‘is a rate or sum of money assessed on the person or property of a citizen by government for the use of the nation or State.’  ‘Taxes are burdens or charges imposed by the Legislature upon persons or property to raise money for public purposes.’  Cooley, Const. Lim., 479."
[PDF
Loan Association v. Topeka, 20 Wall. 655 (1874) (OFFSITE LINK)]

If you would like to learn more about why the Internal Revenue Code is not "public law" but "private law", and why it is also a state-sponsored federal religion based on explicit consent of each person in becoming a "taxpayer", and why the tax is NOT voluntary AFTER they become "taxpayers", see:

  1. PDF Requirement for Consent, Form #05.003-memorandum of law by SEDM
  2. The free Great IRS Hoax, Form #11.302 (OFFSITE LINK) book, sections 5.4.1 through 5.4.1.4 entitled "The Internal Revenue Code is not Positive Law, it is a private voluntary contract".
  3. PDF Socialism: The New American Civil Religion Form #05.016 -memorandum of law by SEDM

Violation of the revenue codes by financial institutions and private companies happens mainly because the IRS has illegally harassed, terrorized, and threatened them usually verbally when they insist on following the revenue statutes exactly as written or when they insist that such statutes have no jurisdiction over them.  In effect, the IRS and state revenue agencies and a colluding and compromised federal judiciary (OFFSITE LINK)  (see also Chapter 6, sections 6.9 through 6.9.12 of the free Great IRS Hoax, Form #11.302 (OFFSITE LINK) book, which proves they are compromised) have made it risky and very confrontational to follow the revenue statutes exactly as written and have done so completely without any lawful or delegated authority to do so.  This has been done mainly using what is called "judge-made law" (OFFSITE LINK) , and Congress has looked the other way on this scandal because they want it to happen and it benefits them hugely, to the tune of over a Trillion extorted dollars a year, to let it continue.  As a consequence, these institutions attempt to transfer the inherent risks to their workers so that they don't have to deal with them and can focus on the more important aspects of maintaining their businesses and their profitability.  The most important result of this abuse and illegal extortion directed at these institutions by the IRS is the misreporting of earnings and payments reported on 1042, 1099, and W-2 forms.  These types of filings are called "Information Returns" by the IRS.  If you do not take the responsibility to promptly correct these erroneous Information Returns with the IRS and state taxing authorities, then these agencies will automatically make the following usually false and completely illegal and prejudicial presumptions, and in the process, violate your due process rights (OFFSITE LINK) under the Constitution:

  1. That you have a Social Security Number, which means you are a federal "employee" and also are exercising agency of a federal entity that has a domicile in the District of Columbia.  Therefore, in the context of anything in which the number is used, you are presumed to be representing a federal corporation called the "United States" which has a domicile in the District of Columbia, which becomes your domicile as well.  See 20 CFR 422.104, which describes who may be issued a Social Security Number.  This regulation is under CFR Title 20, which is entitled "Employee benefits", and the only type of "employee" they can legislate for are federal employees.
  2. That because there is an identifying number on the 1042, that you consented for it to be treated as a "Taxpayer Identification Number" (OFFSITE LINK) .  The only kind of number the IRS is authorized to use by law are Taxpayer Identification Numbers, and the Treasury Department readily admits in its regulations at 26 CFR 301.6109-1(d)(3) that a Social Security Number is NOT a "Taxpayer Identification Number" (OFFSITE LINK).
  3. That because you consented to have a "Taxpayer Identification Number" (OFFSITE LINK), that you must be a "Taxpayer" (OFFSITE LINK)
  4. That because you supplied any kind of identifying number, you must be a "U.S. person" (OFFSITE LINK) .  26 CFR 301.6109-1 says that only "U.S. persons" can be required to provide identifying numbers.  A "U.S. person" is defined in 26 U.S.C. 7701(a)(30) (OFFSITE LINK) as either a "citizen" (a person born in the District of Columbia or a federal territory) or a "resident" (an "alien" domiciled in the District of Columbia).
  5. That because the earnings were reported on a federal form, then you must reside within federal jurisdiction, because you wouldn't fill out the form to begin with if you weren't subject to federal jurisdiction
  6. That because you have a "Taxpayer Identification Number"  (OFFSITE LINK) , and because TINs  (OFFSITE LINK) can ONLY be issued to "aliens"  (OFFSITE LINK) , then you are an "alien"  (OFFSITE LINK) and a "resident"  (OFFSITE LINK) under federal law domiciled in the federal zone  (OFFSITE LINK) .  See our Liberty University pamphlet "Who are 'Taxpayers' and who needs a 'Taxpayer Identification Number'?"

If you do not rebut the above false government presumptions which you encouraged on government forms you signed under penalty of perjury, then your rights will be prejudiced and the government will mercilessly harass you, even if you never explicitly consented, to collect what they think are lawful "taxes" on these earnings, even though such earnings were earned entirely outside of their jurisdiction and do not satisfy the definition of "gross income"  (OFFSITE LINK) under the Internal Revenue Code.  This article will show you how to prepare a corrected IRS form 1099 so that you can effectively zero out these false and unauthorized reports of taxable "gross income",  (OFFSITE LINK) and negate all the above false government presumptions that you do not consent to.  If you do not rebut them, then you will be presumed to agree with them by default.  After they have been rebutted, the government will be left with no legally admissible or reliable evidence upon which to base any kind of assessment.  Without the power of assessment, there is nothing to collect.  Without the ability to collect, they are supposed to leave you alone.

The Corrected IRS Form 1099 is for use primarily in undoing the damage done by private employers and companies, who usually because of their ignorance of the law, either complete Information Returns such as the Form 1099 when they don't need to, or who put false information on these returns.  If you would like to prevent this problem from happening in the future, then we suggest using our free form below:

Demand for Verified Evidence of "trade or business" Activity: Information Return, SEDM Form #04.007
http://sedm.org/Forms/Tax/CorrErrInfoRtns/DmdVerEvOfTradeOrBusiness-IR.pdf

The U.S. Government Accounting Office (GAO) has published some interesting reports that show that even federal agencies have been completing their Information Returns (IR) improperly and explaining why the returns are incorrect.  Below is a sampling, and you can look at more by clicking here  (OFFSITE LINK):

2.  Background on the IRS form 1042

IRS form 1042 is yet another type of information return used to report payment of “gross income” and “trade or business” income to "foreign persons", such as nonresident aliens.  The IRS Form 1042-S has only one block for reporting earnings, which is Block 2 entitled "Gross income".  This is the same "gross income" identified in  26 U.S.C. 61, which makes you into a "taxpayer" subject to the I.R.C.!  WATCH OUT!  You can't earn "gross income" as defined in the I.R.C. without being a "taxpayer", and the reason the IRS will encourage financial institutions and private employers to fill out this form even in cases when it is not required, is to manufacture more "taxpayers" using false presumption to prejudice your constitutional rights.  We cover this in our free pamphlet below:

Presumption: Chief Weapon for Unlawfully Enlarging Federal Jurisdiction, Form #05.017

http://sedm.org/Forms/MemLaw/Presumption.pdf

Like all other information returns, the IRS Form 1042-S is a type of Information Return, and the only authority for demanding information returns is 26 U.S.C. 6041.  This section says that the only occasion where information returns are required is in the case of those in receipt of "trade or business" income, which means income from a "public office" in the United States government.  If you aren't engaged in a "public office" in the United States government and don't have earnings from the U.S. government, then there is nothing to report and no report need be filed, and if a report IS mistakenly filed, then the "Gross income" block must be zero and the tax rate must be zero.  This is consistent with the content of 26 U.S.C. 871 and 26 CFR 1.872-2, which says:

Title 26: Internal Revenue
PART 1—INCOME TAXES
nonresident alien individuals
1.872-2  Exclusions from gross income of nonresident alien individuals.

(f) Other exclusions.

Income which is from sources without [outside]  the United States [federal territory, see 26 U.S.C. 7701(a)(9) and (a)(10) and 4 U.S.C. 110(d)], as determined under the provisions of sections 861 through 863, and the regulations thereunder, is not included in the gross income of a nonresident alien individual unless such income is effectively connected for the taxable year with the conduct of a trade or business in the United States by that individual. To determine specific exclusions in the case of other items which are from sources within the United States, see the applicable sections of the Code. For special rules under a tax convention for determining the sources of income and for excluding, from gross income, income from sources without the United States which is effectively connected with the conduct of a trade or business in the United States, see the applicable tax convention. For determining which income from sources without the United States is effectively connected with the conduct of a trade or business in the United States, see section 864(c)(4) and 1.864–5.

Don't take our word for it.  Read the instructions for the form yourself.  It should also be pointed out that instructions for the form say that if you aren't engaged in a "trade or business", which is everyone except federal employees, and federal business entities and contractors participating in "social insurance" (e.g. SOCIALIST INSECURITY), then you don't have to provide a Social Security Number either:

Box 14, Recipient’s U.S. Taxpayer Identification Number (TIN)

You must obtain and enter a U.S. taxpayer identification number (TIN) for:

Any recipient whose income is effectively connected with the conduct of a trade or business in the United States.
[
IRS Form 1042-S  Instructions, p. 14]

Only the "nonresident alien" who is engaged in a "trade or business" and who REFUSED to provide an SSN or TIN can have backup withholding involuntarily attempted against them.  Therefore, the IRS CANNOT lawfully order or command a private company in a state of the Union to initiate 30-% backup withholding in the case of a "nonresident alien" who is not engaged in a "trade or business", even if he in fact has an SSN or TIN.  There is no statute or regulation that creates a presumption or inference that simply by the existence of an SSN or TIN, a person is engaged in a "trade or business".  All public offices are VOLUNTARY employments and you can quit a job whenever you want.  Therefore, taxes are voluntary for those who choose not be or act as voluntary federal instrumentalities.

If you are not in fact engaged in a “public office”, then you should object vociferously against anyone filing this form against you by any third party.  If you do object to this form being filed on you by a financial institution or employer, and if the payer fills this form out against you despite your hopefully vociferous objections, then you should make sure that the Exemption Code in Block 6 reads "03, which means "Not from 'U.S. sources'" and the tax rate in block 5 is "00.00".  Then, when you get a copy of this form from them at the end of the year, you can file a corrected version by checking the "AMENDED" block and reporting "0" for "Gross income" in block 2. 

IMPORTANT:  If you aren’t filing or paying and you get a 1099 filed against you that you don’t rebut, you are virtually guaranteed at some point to be hounded by the IRS to pay up.  Don’t forget to correct every such report incorrectly filed against you if you are not in fact and in deed engaged in a “trade or business” so that you don’t suffer the adverse consequences of this omission as an innocent “nontaxpayer”.

3.  Correction Procedure

Whenever we complete government forms, the first thing to remember is that even the Standard government forms usually contain false presumptions or statements that will prejudice one's rights and which typically would slip by unnoticed by the general public.  This is especially true of the "words of art"  (OFFSITE LINK) used on the form and the perjury statement at the end of the government form.  Therefore, it is usually unwise to use the government's Standard forms, and to instead use a modified or what we call an "Amended" form.  Amended forms are the only kinds of forms we recommend and the Family Guardian Website  (OFFSITE LINK) contains a catalog of both the original government forms and the Amended versions below:

http://famguardian.org/TaxFreedom/Forms/IRS/IRSFormsPubs.htm (OFFSITE LINK)

Whenever possible, you must use the Amended forms or else you will suffer having your rights unjustly prejudiced by the government.  All of the SEDM response letters which include government forms as exhibits or attachments include blank Amended, and not Standard, government forms, and you should not substitute the Standard government form unless compelled to do so.  Click here to see a list of the changes  made to the Standard forms to make them into the Amended forms if you are curious. To give you one glaring example of a TRAP that greedy state lawyers set which should be avoided at all costs, take a look at the Oregon "Employees Substitute Wage and Tax Statement" form.  Notice it has "Taxpayer's Signature" at the end and "Employee" at the top.  There is no way to fill out this form and send it in without creating TWO false presumptions:  1.  That you are an "employee" under the I.R.C.; 2.  That you are a "taxpayer".  The state of Oregon DOES NOT have a substitute form suitable to be submitted by those who claim to be neither "taxpayers" nor "employees" and who want to zero out false reports by their private employers, who coerced them into participating because they quite frankly do not want people exiting the fraudulent tax system.  WATCH OUT!   

Below is a link to both the Standard and Amended IRS form 1042, so you can compare and see the differences for yourself.  The Amended forms are "fillable" with the free Adobe Acrobat Reader.  They have been preinitialized with the most common values to save you time.  You can edit the year as well as fill in any of the blocks.  The term "NTIN" means "Nontaxpayer Identification Number", not to be confused with an "SSN" or "ITIN".   The NTIN is issued under the authority of 26 CFR 301.6109-1(1)(i).

Form Standard IRS
 form
Amended version
1042-S

PDF Click here

WordClick here

PDF Click hereWordClick here

1042-T

PDF Click here

WordClick here

 
1042 Instructions Click here NA
IRS Pub 1187: Specification for
completing IRS form 1042-S
Click here NA

Remember the following requirements for the IRS Form 1042:

  1. One corrected 1042 form must be filled out for EACH Form 1042  (OFFSITE LINK) that was wrongfully filed on you, and must include all the information about the original organization that made the report.  If you don't have the original forms that hopefully were mailed to you by your business associate, then you can request replacement copies from the associate or from the IRS.
  2. Enter the identification numbers for the PAYER and RECIPIENT and after "RECIPIENT identification number" write "NONTAXPAYER". 
  3. Do NOT attach or send in the original Form 1042  (OFFSITE LINK) that your financial institution or employer gave you, because they are wrong and will just confuse the IRS or state revenue agency.  Give them ONLY the substitute form and make it hard for them to even see the false information on the original reports.
  4. The 1042 is filled out with all the same information as what was on the original 1042, including "taxes" paid, but with Income earned set to zero.  Therefore blocks 7 and 22, the tax withheld, should reflect whatever was wrongfully reported by your business associate, while blocks 2, 4, and 8 will be zero.  The reason that income blocks should be zero is because the only nonzero amounts in these blocks are those connected with a "trade or business", meaning a public office in connection with the United States government as defined under 26 U.S.C. 7701(a)(26).  Since you probably don't hold public office, then you shouldn't be reporting earnings in connection with it.

    WARNING!:  If you do not have any earnings in connection with a "trade or business" (OFFSITE LINK) , you also cannot be taking any deductions (26 U.S.C. 162), earned income credit (26 U.S.C. 32), or apply a graduated rate of tax (26 U.S.C. 1) if you file a return.  All such "privileges" will make you into a person engaged in a "trade or business".  The rate on all "gross income" for those with no earnings connected with a "trade or business" is a flat 30% for Nonresident aliens, as indicated under 26 U.S.C. 871(a).  This is normally not a big deal, because the only type of "gross income" that is not specifically identified as connected with a "trade or business" is Social Security under 26 U.S.C. 861(a)(8) and you cannot become a Member without quitting Social Security using the PDF Resignation of Compelled Social Security Trustee Click here (OFFSITE LINK) for details.

  5. If you provided a TIN for the original 1042-S form, then you should attach a note indicating that you are not a statutory "taxpayer", "resident", "alien", or "U.S. person", but instead are a "nonresident alien NON-individual" not  not engaged in a "trade or business" as defined in 26 U.S.C. 7701(b)(1)(B) who has no "SSN", "TIN", or "ITIN". Our PDF Corrected Information Return Attachment Letter, Form #04.002, does this with Enclosure (8), PDF Tax Form Attachment, Section 3.  That form also makes any original information return reports FALSE and FRAUDULENT.
  6. If you don't have the original erroneous 1042 reports, then you won't have anything you can start with to transfer numbers onto the 1042.  In that case, fill out one form for each tax year and each institution or employer, and put as much information as you have about the institution on the form, and indicate under blocks 2, 4, and 8 the amount "zero".

We have prepared a sample letter in Microsoft Word format that you can use to attach to your corrected IRS form 1042-S that explains all the details of why you are seeking the correction and the authority for requesting the correction.  Feel free to modify the form, but please don't do so unless you have REALLY done your homework, because you are likely to create more problems for yourself than you solve in the process, mostly because of ignorance.  Click on the links below:

Some states have their own substitutes for the IRS form 1042.  These substitutes must be used when you are filing state income taxes, but accomplish the same affect as the IRS form 1042.  If your state does not have a 1042 substitute form and you are corresponding with a state revenue agency, then its best to provide either a corrected form W-2 or 1042, or to use the IRS form 1042 to correct erroneous reports of gross income.  The decision is yours.  If you would like more information about the tax laws of a specific state, see the link below:

4.  How the Information Return Correction process works

W-2's, 1042's, 1098's, and 1099s are called "Information Returns" by the IRS.  Below is the overall process for correcting erroneous or false W-2's or 1099's so you know exactly how it works and what to expect:

  1. If you haven't archived or kept all the inforamtion returns filed against your name, obtain copies of the corrected information returns received by the IRS using one of the following:
    1.1  PDF Information Return FOIA: "Trade or Business", Form #03.023.
    1.2  PDF IMF Decoding Freedom of Information Act Request, Form #03.015, FOIA #3. 
    1.3  Write your own request using information contained in our PDF Correcting Erroneous Information Returns, Form #04.001, Section 6.
  2. Complete corrected Information Returns:

    2.1  Complete form W-2c for all years false W-2 reports were made against you.

           http://sedm.org/Forms/FormIndex.htm

    2.2  Complete corrected form 1042s for all years false W-2 reports were made against you.

           http://sedm.org/Forms/FormIndex.htm

    2.3  Complete corrected form 1098s for all years false W-2 reports were made against you.

           http://sedm.org/Forms/FormIndex.htm

    2.4 Complete Amended/Corrected form 1099's for all false 1099 forms filed against you.  See our article below for information on how to do this:
          http://sedm.org/Forms/FormIndex.htm

  3. Find the Data Processing Center address to mail the completed information return from the form instructions:   Examine the IRS Instructions for the information return form you prepared above.  The instructions provide the address of the Data Processing Center to mail the completed information returns.  Write down this address from the form instructions.  Alternatively, you can look in the next section, which summarizes the Data Processing Center addresses for the various information returns.  Each information return form has a different Data Processing Center so make sure you get the right one.
  4. Mail one set of completed forms above to EACH of the following TWO separate destinations:

    4.1.  To the Data Processing Center address in the previous step.

    4.2.  To the IRS Service Center where you would normally file returns WITH THE FOLLOWING COVER LETTER
               For nonresident aliens, this would be the International processing center, which was at the following address last we checked:
               Internal Revenue Service; P.O. Box 80102; Cincinnati, OH 45280-0002.

    Corrected Information Return Attachment Letter, Form #04.002

    http://sedm.org/Forms/FormIndex.htm

  5. When the Social Security Data Processing Center and IRS receive the corrected information returns, they will correct the entries in the Information Return Master File (IRMF).  IRS will also send out an IRS Form 4598 to the employer or financial institution that originally sent in the erroneous W-2 or 1099 asking them to provide an updated form or to explain why their form was incorrect.  If they are following the directions in our cover letter, they will use the Amended IRS form 4598 to send to the employer, and not the standard form so as to remove presumptions and offer additional explanation options to the employer or financial institution.  The employer or financial institution has 10 days to fill out and return the IRS Form 4598.  They may also respond by sending the IRS a W-2c or W-3c form, which corrects the erroneous reports they provided and which hopefully will agree with your submission.
  6. The IRS may then further change the entries for the returns in question based on the IRS Form 4598 the employer or financial institution completed and returned to the IRS.
  7. If the IRS is unable to reconcile the employer or financial institution's response with what you said in your cover letter, then they may amend the IDRS based on their own determination.

If you would like more information about Information Returns processing, visit the IRS website at:

http://www.irs.gov/taxpros/content/0,,id=98185,00.html

5.  Where to File Corrected Information Returns

The table below lists where corrected information returns must be filed as of 2008:

Table  1: Place to file corrected information returns

Forms

IRS Publication containing address

Applicable Region

Place to file

1042-S

Instructions for Form 1042-T, Catalog Number 28848W

All

Internal Revenue Service

Ogden Service Center

P.O. Box 409101

Ogden, UT  84409

1098, 1099, 5498, W-2G

1099 General Instructions (PDF) Instructions for Forms 1099, 1098, 5498, and W-2G, Catalog #27976F, Sections C and D

Alabama, Arizona, Arkansas, Connecticut, Delaware, Florida, Georgia, Kentucky, Louisiana, Maine, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, Texas, Vermont, West Virginia

Department of the Treasury

Internal Revenue Service

Austin, TX  73301

Alaska, California, Colorado, District of Columbia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maryland, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Utah, Washington, Wisconsin, Wyoming

Department of the Treasury

Internal Revenue Service

Kansas City, MO  65999

W-2 and W-3

Instructions for Forms W-2 and W-3, Catalog Number 25979S

All

Social Security Administration

Data Operations Center

Wilkes-Barre, PA 18769-0001

6.  Examples

Below are some example documents to help show you how to fill out the corrected IRS form 1042.  Note that Block 12 does not list an option for "transient foreigner", and so the only thing you can put in the box is "20".

IRS Form sent in by institution Example completed
original form
Example Amended
1042 replacement
PDF Form 1042-S PDF 1042-S example PDF 1042-S Replacement
PDF Form 1042-T   PDF 1042-T Replacement

7.  Frequently Asked Questions

Q1:  What if I don't have the original 1042 forms that I want to zero out that I can take the original information from to put on the 1042?

A1:  You can call the provider and ask them to fax you the 1042 information again.  Alternatively, you can file a 1042 that simply says "All sources" under item 5 on the 1042 form.

____________

Q2:  Is it ever too late to submit these forms for past years?

A2:  No.  There is never a wrong time to do the right thing.  As long as the government has records of receipt of "gross income", then it is our duty to rebut the wrong evidence, no matter how old it is, because sooner or later, they will use it to come back to us and demand that we either file or pay.

____________

Q3:  Should I fill out the 1042 for past years, or only for the years they are going after me for?

A3:  It's always safest to file 1042 forms for all years that a person didn't file a return.  This is a preventive measure if they decide later on to go after a person later for those years.

8.  Saving and reusing completed forms

The form 1042 is frequently used when corresponding with the IRS and state taxing authorities as a way to remind the government that a person has no taxable income. Once you have completed the form for a particular tax year, it is best to keep the original in a safe place and reuse it by photocopying it and attaching it to correspondence.  This will save you lots of work and time.  We scan in ours and make it into an Adobe Acrobat PDF and just reprint it whenever we need it.

9.  Stopping the false 1042 reports from being filed in the first place

If mortgage companies and lenders would obey the law in the first place, their false 1098 reports would never be filed.  You can prevent these false reports in the first place by educating all of your business associates, and especially the lenders you deal with.  We have prepared a document you can send to lenders and mortgage companies to educate them and prevent these false reports from being filed below.  We encourage you to use this, because the more lenders who get educated, the greater the chance that others they lend to will be removed from the fraud, slavery, and compelled association that these false reports produce.  The following specific steps are recommended to bring errant lending companies into compliance with the law:

  1. Submitting the following form to the filer of the false form and demanding that they prove with evidence that you are engaged in a "trade or business".  Do so with a Certificate of Service and have it notarized.  Send via certified mail or personally by a neutral third party.  This will provide formal notice and legal evidence that they have been notified.  If they do not rebut the information, you have readily admissible evidence that their conduct beyond that point becomes legally actionable and FRAUDULENT.

    Demand for Verified Evidence of "trade or business" Activity: Information Return, SEDM Form #04.007

    http://sedm.org/Forms/Tax/CorrErrInfoRtns/DmdVerEvOfTradeOrBusiness-IR.pdf

  2. If the financial institution or private employer insists that you contact the legal department of the company to resolve your dispute about fraudulent filing of information returns and unlawful withholding, we suggest sending the following very powerful letter directly to the employer or financial institution legal office according to the instructions:

    Legal Notice to Correct Fraudulent Tax Status, Reporting, and Withholding, Form #04.401

    http://sedm.org/Forms/FormIndex.htm

  3. If the legal department doesn’t correct the illegal, harmful, and fraudulent reporting and withholding of the company based on the above letter, you may consider suing the payroll, withholding, or reporting person individually and by name.  We are working on a canned lawsuit suitable for this purpose which will be referenced in this document when available.
  4. After they have been confronted about the false information returns, if they persist and insist on continuing to violate the law, you can write the IRS to ask them to correct the false information return and also financially and civilly penalize the employer and/or withholding agent for submitting false information pursuant to 26 U.S.C. 6702.  Starting in January 2007, the IRS posted a notice warning those who submit false 4852's that they could be civilly penalized for submitting a false return.  This penalty applies just as readily to the submitters of the original false information return as it does to those who are submitting the corrections.  PDF Click here to view the current version of the form that shows the penalty language.  You can cite the language on the form as your authority for demanding that the submitter of the false returns be penalized.

    4.1  You should also do follow-up to ensure that this penalty is instituted.  Once their violations of law begin affecting their bottom line, usually the submitters of the false returns will reform their ways.

    4.2  If the IRS refused to EQUALLY enforce the law, inform them that a criminal complaint will be filed against the IRS Commissioner for the following:

    4.2.1  18 U.S.C. 3: Accessory after the fact.  The IRS, by refusing to remedy the situation, becomes an accessory after the fact to fraud and false statement by the submitter of the false information returns.

    4.2.2  18 U.S.C. 912: Falsely impersonating an officer [PUBLIC OFFICER] or employee of the United States.  The IRS is causing you to be misrepresented as a "public official".  The tax in Subtitle A of the I.R.C. is a tax upon a "trade or business", which is defined as "the functions of a public office" in 26 U.S.C. 7701(a)(26).  By allowing their records to falsely reflect the fact that you are a "public official", they are causing you to involuntarily and falsely impersonate an officer of the United States government.

    4.2.3  18 U.S.C. 1030: Fraud and related activity in connection with computers.  The IRS is deliberately and willfully falsifying the records that describe your status and they should be prosecuted.

    4.2.4  26 U.S.C. 7207: Fraudulent Returns, Statements, or other documents.  The IRS is facilitating the submission and processing of knowingly false information returns, such as IRS forms W-2, 1042S, 1098, and 1099.

  5. If the IRS does not take responsibility to civilly penalize the submitter of the false information returns pursuant to 26 U.S.C. 6702, next you can file a criminal complaint against them with the Department of Justice of the United States pursuant to 28 U.S.C. 2679.  Charge as follows:

    5.1  Charge the submitter of the information return and the withholding agent with the following

    5.1.1  26 U.S.C. 7207: Fraudulent Returns, Statements, or other documents

    5.1.2  18 U.S.C. 912: Falsely impersonating an officer [PUBLIC OFFICER] or employee of the United States

    5.1.3  18 U.S.C. 1589: Forced Labor.  The private employer, by inducting you illegally into the tax system, is causing you to engage in forced labor for the portion of your compensation that he illegally diverts to the government.   18 U.S.C. 1593 mandates restitution for the slavery be paid to you by the submitter of the fraudulent information return.

    5.2  Charge the IRS with the following:

    5.2.1  18 U.S.C. 3:  Misprision of felony.  The IRS is cooperating with the crimes of the information return submitter and withholding agent.

    5.2.2  18 U.S.C. 241: Deprivation of Rights.  The IRS is causing you to involuntarily forfeit your rights to the fruits of your labor and the compensation from it, by refusing to take action on your petition for redress.

    5.2.3  18 U.S.C. 1002: Possession of false papers to defraud the United States.  The fraudulent information returns received from the submitter are used in crediting Social Security Earnings, which in turn become a basis for collecting Social Security benefits.  If these reports are wrong, then the person who is the subject of the report is entitled to increased Social Security earnings, which in turn can be used to defraud the United States out of monies that they in fact are not legally entitled to.  No one domiciled in a state of the Union on other than federal territory can lawfully participate in or collect benefits from Social Security.  See
    Resignation of Compelled Social Security Trustee, Form #06.002
    http://sedm.org/Forms/AvoidingFranch/SSTrustIndenture.pdf

    5.2.4  18 U.S.C. 1028A: Aggravated Identity Theft.  The IRS, by using a Social Security Number as a Taxpayer Identification Number, and by falsely associating you with the status of a "public employee", is stealing your identity and transporting it unlawfully to the District of Columbia pursuant to 26 U.S.C. 7701(a)(39) and 26 U.S.C. 7408(d).

    5.2.5  18 U.S.C. 1030: Fraud and related activity in relation to computers.  The fraudulent information returns received from the submitter by the IRS are processed entirely by computer.  By allowing knowingly false information in their computer system, they are engaging in computer fraud.

    5.2.6  18 U.S.C. 1583: Enticement into Slavery.  The IRS, through the omission of failing to correct the false information return reports or in LYING to you by telling you that they are required, is inducting you illegally into the tax system, is causing you to engage involuntarily in slavery for the portion of your compensation that he illegally diverts to the government.

    5.2.7  18 U.S.C. 1589: Forced Labor.  The IRS, by refusing to correct the fraud of the information return submitter, is inducting you illegally into the tax system, is causing you to engage in forced labor for the portion of your compensation that he illegally diverts to the government.  18 U.S.C. 1593 mandates restitution for the slavery be paid to you by the IRS.

    5.2.8  18 U.S.C. 1951: Interference with commerce by threats or violence.  If the IRS threatened to penalize, audit, or "selectively enforce" against you in retaliation for brining the illegal activity of the submitter of the fraudulent information return and withholding agent to their attention, then they are engaging in criminal racketeering.

    5.2.9  18 U.S.C. 1956: Laundering of monetary instruments.  If the submitter of the false information return also involuntarily withheld monies from your pay, the IRS, in receiving the proceeds of said extortion, is engaging in laundering of monetary instruments.

    5.2.10  42 U.S.C. 1994: Peonage abolished.  The IRS, by its omission in correcting the fraudulent information returns, is recruiting you into peonage and making you into involuntary surety for debts of a foreign jurisdiction.

    Tell the U.S. Attorney in your criminal complaint that he is invited to prosecute the false returns and false claims pursuant to 31 U.S.C. 3729 and that if he does not do so, then you will be filing a Quit Tam civil action in the name of the United States to collect more than 100% of the false claim amount plus damages under the False Claims Act.

  6. If the DOJ does not prosecute the IRS employees engaging in the fraud because of their omission, file a criminal complaint with the Attorney General of your State against the commissioner of the IRS and the specific employees at the IRS who refused to correct the fraudulent information returns.  Use the following as a resource:

    6.1  State legal resources

    6.2  State income taxes

    6.3  28 U.S.C. 2679(c ):  Authorizes you to sue a federal employee in a state court if he is operating outside of his delegated or lawful authority.

    6.4  28 U.S.C. 1652: State laws as rules of decision.  States that state law prevails in cases where federal actors are operating outside their authority on land under exclusive state jurisdiction.

  7. Next, you can file a civil lawsuit as follows:

    7.1  26 U.S.C. 7434: Civil Damages for Fraudulent Filing of Information Returns.  To recover civil damages for false filing of information returns for $5,000 or more, including attorneys fees, against the submitter of the false information returns.

    7.2  31 U.S.C.  3729:  False Claims Act.  Use this statute and file in the name of the United States to recover false claims against the United States.  Since the U.S. Attorney declined to prosecute, then this statute allows you to file suit individually as an agent of the United States.

10.  Keeping records of all Information Returns

W-2, 1042, and 1099 reports are called "Information Returns" by the IRS.  The IRS and state revenue agencies make it very difficult for you to rebut the bogus W-2, 1042, and 1099 reports by:

Consequently, it is VERY IMPORTANT that you maintain an archive of all of the Information Returns filed on you, along with the rebuttal to each one in the form of either a 4852, an amended W-2, etc.  That way, when the IRS institutes collection activity, you can include rebutted versions of the Information Returns with your response, and you can reuse these rebuttals in all future correspondence with a minimum of effort.

For those of you who are trying to reconstruct a file of all of your Information Returns so you can prepare rebuttals and keep them on file for future use, the following options are available:

  1. You can contact the employers, financial institutions, and organizations that filed the Information Returns and ask them to send you replacements.
  2. The IRS website contains links describing how to get copies of these bogus reports below:
    Topic 154 - 2004 Forms W-2 and Form 1099–R (What to Do if Not Received) (OFFSITE LINK)
    Topic 159 - Prior Year(s) Form W-2 (How to Get a Copy of) (OFFSITE LINK)

11.  Further reading and research

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