CORRECTING ERRONEOUS IRS FORM W-2
 Form #04.006
TABLE OF CONTENTS:
  1. Why We Must Correct False IRS Form W-2's
  2. Correction Procedure

    2.1  Form W-2CE: W-2C Replacement for use by workers who are NOT "employees" (CUSTOM FORM)

    2.2  Form W-2CC: Certificate of Fraudulent W-2 and Criminal Complaint (CUSTOM FORM)

    2.3  IRS Form W-2C: Submit Annually after private employer submits false returns

    2.4  IRS Form 4852:  Submit ONLY with 1040, 1040X, and 1040EZ Tax Return.  Not for use with 1040NR.

    2.5  IRS Form 4598:  Submit to private employer to get him to permanently correct reporting

    2.6  Corrected Information Return Attachment Letter

  3. How the Information Return Correction Process Works
  4. Where to File Information Returns
  5. Examples
  6. Frequently Asked Questions
  7. Saving and Reusing Completed Forms
  8. Stopping the false W-2 reports from being filed in the first place
  9. Keeping records of all Information Returns
  10. Further Reading and Research

1.  Why We Must Correct False IRS Form W-2's

It is quite common for financial institutions and private companies to misapply the state and federal revenue "codes".  Notice we didn't says "laws" (OFFSITE LINK), because the Internal Revenue Code (OFFSITE LINK) Subtitle A is "private law" that attaches to the individual through explicit consent to engage in the "trade or business" franchises .  The U.S. Supreme Court called it "a decree under legislative forms" [tyranny, in fact] in the cite below in the case where it is used to redistribute wealth among private individuals, which seems to be the main purpose at this time.

"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."

[ Loan Association v. Topeka, 20 Wall. 655 (1874) (OFFSITE LINK)]

The Internal Revenue Code Subtitle A describes a lawful "tax" (OFFSITE LINK) only in cases where the individual has given express consent by voluntarily choosing a domicile or residence on federal territory and then electing to consensually participate in excise taxable, "privileged" activity or franchise called a "trade or business".  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, see sections 9 through 9.6 of our free memorandum of law below:

Requirement for Consent, Form #05.003
http://sedm.org/Forms/MemLaw/Consent.pdf

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 (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", 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 on financial accounts reported on 1099 forms and earnings from labor reported on the W-2 form (OFFSITE LINK).  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 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 worker or contractor engaged in a "trade or business" or "public office" 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 pursuant to Fed.Rul.Civ.Proc. 17(b).  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.  Click here for more details.

  2. That because there is an identifying number on the W-2 report, 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) (OFFSITE LINK) 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).  Click here for details.

  4. That because the earnings were reported on a federal form, then you must reside within federal territorial or subject matter jurisdiction, because you wouldn't fill out the form to begin with if you weren't subject to federal jurisdiction.

  5. That because you have a "Taxpayer Identification Number" (OFFSITE LINK), and because TINs 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, 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" under the Internal Revenue Code.   Click here (Subscriptions) for details on why your silence equates with consent.  This article will show you how to prepare the forms necessary to lawfully and completely zero out these false and unauthorized reports of taxable "gross income", 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 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:

2.  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.  For examples of more frequently used "words of art", we refer you to the following two resources:

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 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!   

All the above preliminaries now aside, we can get to work showing you how to fill correct erroneous IRS form W-2's.

2.1  Form W-2CE:  W-2C Replacement for use by workers who are NOT "employees" (CUSTOM FORM)

The Social Security Date Processing center may try to tell you that they accept W-2C forms from workers and that the "employer" must send them.  This is a customer form that says it is ONLY for use by the worker instead of the company.  Since the submitter is not an "employee", "employer", "taxpayer", or "U.S. person", the data processing center cannot regulate or penalize their conduct or tell them they can't use this form.

2.2  Form W-2CC: Certificate of Fraudulent W-2 and Criminal Complaint (CUSTOM FORM)

This form looks like the 4852 but serves a totally different purpose not served by any other IRS form we could find:

  1. Unlike the 4852, the form can be used with a 1040NR or equivalent nonresident form.  The form specifically says it is ONLY for use by nonresident aliens who are NOT "individuals", who are "nontaxpayers", and "nonfilers".
  2. Unlike the 4852, does not act as a substitute for the W-2 form, but rather INVALIDATES fraudulent forms.   It proves that submitter of the original forms was notified of the false reports, which makes their continued submission of the forms not only actionable, but fraudulent beyond that point.
  3. Briefly describes the status of the submitter to ensure that they are not victimized by common   false and injurious presumptions.
  4. Reserves the rights of the submitter and ensure that they do not forfeit any of their Constitutional rights or waive sovereign immunity.
  5. Demands correction of the fraudulent IRS Information Return Master File (IRMF) records.
  6. Demands that the submitter of the false information return be first warned and eventually criminally prosecuted by the IRS.
  7. Protects the submitter from penalties or criminal prosecution.  The perjury statement on this form is also consistent with the nonresident status of the submitter, thus ensuring that they may not be penalized or criminally prosecuted.
  8. Imposes penalties upon the IRS for misuse of the information about the submitter.
  9. Identifies the submitter as a private person not subject to federal law and protected by the constitution and OTHER than a "public officer".

Below is a link to this very important form:

2.3  IRS Form W-2C: Submit Annually after private employer submits false returns

When employers make a mistake on the W-2 form that they submit, they use the IRS form W-2C to correct their mistake.  Like the IRS form W-2 that it corrects, the IRS Form W-2C is:

  1. Not signed under penalty of perjury.

  2. Because it is not signed under penalty of perjury, it constitutes Hearsay Evidence excludible under the Hearsay Rule, Federal Rule of Civil Procedure 802.

The "C" in the IRS Form W-2C stands for "Corrected".  The advantage of using the IRS form W-2C instead of the IRS Form 4852 are the following:

  1. You can file it without filing a tax return.  The IRS 4852 says it is to be attached to a tax return, which "nontaxpayer" is not supposed to be filing.

  2. Because you can file it without filing a tax return, then you can avoid the need to file BEFORE you start receiving collection notices based on the submission of the false W-2 forms filed by your private employer.

Like any other form from the IRS, we recommend using the AMENDED version of the form to remove false presumptions about your status that might connect you to being either a "taxpayer" as defined in 26 U.S.C.  §7701(a)(14) or a "U.S. person" as defined in 26 U.S.C. §7701(a)(30).  Below are the ORIGINAL and AMENDED versions of the form for your reuse, as well as the IRS Instructions for filling out the form.

The IRS likes to play games with correcting information returns in order to TRAP you into becoming a "taxpayer" and TRAP you into becoming an informant and SPY who is destroying your own privacy.  Here are a few of the games we have witnessed:

  1. If you submit the IRS form 4852 WITHOUT an accompanying 1040 or AMENDED 1040NR return or Federal Tax Statement, then the IRS may tell you that you can't use the 4852 form. 
  2. If you send them an IRS form W-2C by itself, they may tell you that only EMPLOYERS are allowed to submit this form.
  3. If you send the W-2C and you don't print it in COLOR and use OCR scannable fonts and send it to the Social Security Data processing center, they may reject the form and try to penalize you $50 because the form is not scannable.  Therefore please ensure that you print the top copy in color so it is red and ensure that you use the OCR fillable form we provide so that it can be scanned and therefore is not rejected or penalized.
  4. If you ask them what for you should submit to them to correct a false IRS form W-2 WITHOUT filing a tax return, they may either ignore you or refuse to answer your question.  This puts you into a condition of being WITHOUT REMEDY for false information returns filed against you.  If this happens, ask them how you can prevent being a CRIMINAL pursuant to 26 U.S.C. §7207, which says that it is a CRIME to submit or allow to be submitted false information returns.  Ask them how you can correct the return WITHOUT filing a tax return and thereby being compelled to be a witness against yourself in violation of the Fifth Amendment prohibition against being compelled to be a witness against yourself.

2.4  IRS Form 4852: Submit ONLY with 1040, 1040X, and 1040EZ Tax Return.  Not for use with 1040NR.

The IRS Form 4852:

1.   According to the top of the form itself:

1.1.   May only be used as an attachment to IRS Forms 1040, 1040A, 1040-EZ, and 1040X.

1.2.   May be used to correct only erroneous IRS forms W-2, 1099-R and may NOT be used to correct any other type of information return.

2.   Is a SUBSTITUTE for a W-2 and still implicates that:

2.1.   The W-2 is STILL required.

2.2.   The submitter STILL earned reportable “wages”.

3.   The perjury statement on the form places the submitter WITHIN the “United States”, which is perjury under penalty of perjury for a nonresident alien.  It would have to be modified to make it correct.  See:

3.1.   28 U.S.C. §1746 .

3.2.    Nonresident Alien Position, Form #05.020, Section 14.7

4.        Provides no way for the submitter to:

4.1.   Indicate that a W-2 should not have been filed to begin with because no W-4 was on file.

4.2.   Indicate that there was no W-4 on file and therefore the recipient did not earn reportable “wages” pursuant to 26 CFR §31.3402(p)-1  and 26 CFR §31.3401(a)-3(a) .

4.3.   Request that the IRS prosecute the submitter of the original false W-2 pursuant to 26 U.S.C. §7206(1).  Our Corrected Information Return Attachment Letter does this.

 

Therefore:

 

1.  The Form 4852 s a "resident" (alien) form, since the 1040 is a resident tax return filed only by “U.S. persons” as defined in 26 U.S.C. §7701(a)(30).

2.  The Form 4852 cannot be used as an attachment to a 1040NR form.  There is no way to correct a W-2 report if you are filing with form 1040NR.  Our members may only file form 1040NR or a substitute.

3.  Our Members, who are all “nonresident aliens” who are NOT “individuals” may not use this form to correct false W-2 reports.  The Custom W-2Ce referenced herein is preferred.

4.  If you disregard the above warning, the submitter may be prosecuted for perjury on either this form or the 1040NR form if he/she attaches it to a 1040NR.  This is because the 1040NR describes the submitter a “nonresident alien” while the 4852 form makes the submitter a “resident alien”.  You can’t be both at the same time so the submitter is contradicting and perjuring himself on one fo the two forms.

Readers who are "taxpayers" are cautioned NOT to use it for any other purpose and that they will be penalized for doing so.  Beginning in Jan. 2007, the IRS placed the following notice on the IRS form 4852:

Penalties. The IRS will challenge the claims of individuals who attempt to avoid or evade their federal tax liability by using Form 4852 in a manner other than as prescribed. Potential penalties for the improper use of Form 4852 include:

  • Accuracy-related penalties equal to 20 percent of the amount of taxes that should have been paid,

  • Civil fraud penalties equal to 75 percent of the amount of taxes that should have been paid, and

  • A $5,000 civil penalty for filing a frivolous return or submitting a specified frivolous submission as described by section 6702 of the Internal Revenue Code.

The above notice is fraudulent, because The term "you" in the form is not defined and does not apply to "nontaxpayers" not subject to the I.R.C. or to nonresidents.  The I.R.S. "conveniently" doesn't tell you this on the form, because they want to terrorize "nontaxpayers" into joining their illegal activities out of fear, rather than informed consent.  Click here for more details.

“Revenue Laws relate to taxpayers [officers, employees, and elected officials of the Federal Government] and not to non-taxpayers [American Citizens/American Nationals not subject to the exclusive jurisdiction of the Federal Government].  The latter are without their scope.  No procedures are prescribed for non-taxpayers and no attempt is made to annul any of their Rights or Remedies in due course of law.  With them [non-taxpayers] Congress does not assume to deal and they are neither of the subject nor of the object of federal revenue laws.” 
[ Economy Plumbing & Heating v. U.S., 470 F2d. 585 (1972)]

Readers are also cautioned that the penalty provisions of the I.R.C. found in I.R.C. Section 6702 were recently updated in 2006 and that the online versions in many sources are out of date.  I.R.C. Section 6702 originally imposed a civil penalty of $500 instead of a $5,000 penalty.  However, this section was updated by Pub.Law 109-432, Title IV, Section 407(a) to increase the penalty amount to $5,000.  Below is an annotated version of this statute for your edification:

26 U.S.C.A. §6702

Currently, the top of the form describes the only approved uses for the form as follows. 

"Attach to Form 1040, 1040A, 1040-EZ, and 1040X"

Obviously, this form is only for use by "U.S. persons" subject to federal legislative jurisdiction because domiciled on federal territory.  That condition, in fact, is where they get their authority to penalize from.  Conspicuously absent from the header are IRS forms 1040NR-EZ and 1040NR.  Apparently, they don't want nonresident aliens to use this form for a remedy who have been the victim of false information returns.  What do they expect nonresident aliens not engaged in a "trade or business" who have false reports filed against them to use, which is MOST Americans?  If they cared about this group, they would at least direct them to another form they could use, but their silence is telling.  By this willful omission, they are depriving this group of equal protection of the law and a remedy, and nonresident aliens domiciled in states of the Union are the main people, ironically, that the IRS and the federal government were created to serve and protect in the first place.  It's pretty obvious that our income tax system is not a "public use" or a "government function", but a private business, because they would assure equal protection to all, including nonresident aliens, if it were a "public use.  This explains why the IRS, according to the DOJ, is NOT an agency of the United States government.  Click here for more details on this scam.

Therefore, if you want to correct an erroneous IRS form W-2 sent by the private employer and attach the correction to anything BUT a resident (alien) tax 1040 return, you should either use IRS form W-2C above or provide an affidavit or substitute form of your own making instead.  In order to avoid the above exorbitant penalty when using the IRS Form 4852 in its proper way, we suggest the following options:

  1. Use IRS form W-2C instead.  Members may not use  the Form 4852 because they are nonresident aliens.

  2. If you are FORCED to use this form, use the SUBSTITUTE IRS Form 4852 provided below.  This form is not an IRS form and therefore is not subject to penalty for misuse.  IRS can only penalize for misuse of THEIR forms.  It has a notice that penalties are not allowed because it is not a standard form.

  3. Attach the following form to the filing:
    Tax Form Attachment, Form #04.013
    http://sedm.org/Forms/Tax/TaxFormAtt.pdf

  4. Emphasize that you are a "nonresident alien" who is NOT an "individual", not engaged in a " trade or business", with no earnings from the "United States", whose estate is a "foreign estate" as per 26 U.S.C. §7701(a)(31), and who is specifically exempted from receipt of "gross income", withholding, backup withholding, and reporting as per the following:

    2.1  26 U.S.C. §861(a)(3)(C)(i)

    2.2  26 U.S.C. §1402(b)

    2.3  26 U.S.C. §3401(a)(6).

    2.4  26 U.S.C. §3406(g).

    2.5. 26 CFR §31.3406(a)(6)-1(b)

    2.6  26 CFR §31.3406(g)-1(e)

    2.7  26 CFR §1.872-2(f)

    For further details on the status of being a "nonresident alien", see:

      Nonresident Alien Position, Form #05.020

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

  5. If the information return you are rebutting is an IRS form W-2, emphasize that the only way you can earn "wages" as legally defined is to voluntarily submit an IRS for W-2 and that the employers information return is FALSE because you did not consent, as required by the following.  Emphasize that the correct amount should be ZERO because the regulations below only allow amounts to be reported that are the subject of a voluntary withholding agreement:

    3.1  26 U.S.C. §3402(p)

    TITLE 26 > Subtitle C > CHAPTER 24 > § 3402

    § 3402. Income tax collected at source

    (p) Voluntary withholding agreements
    (1) Certain Federal payments
    (A) In general
    If, at the time a specified Federal payment is made to any person, a request by such person is in effect that such payment be subject to withholding under this chapter, then for purposes of this chapter and so much of subtitle F as relates to this chapter, such payment shall be treated as if it were a payment of wages by an employer to an employee.
    (B) Amount withheld
    The amount to be deducted and withheld under this chapter from any payment to which any request under subparagraph (A) applies shall be an amount equal to the percentage of such payment specified in such request. Such a request shall apply to any payment only if the percentage specified is 7 percent, any percentage applicable to any of the 3 lowest income brackets in the table under section 1 (c), or such other percentage as is permitted under regulations prescribed by the Secretary.
    (C) Specified Federal payments
    For purposes of this paragraph, the term “specified Federal payment” means—
    (i) any payment of a social security benefit (as defined in section 86 (d)),
    (ii) any payment referred to in the second sentence of section 451 (d) which is treated as insurance proceeds,
    (iii) any amount which is includible in gross income under section 77 (a), and
    (iv) any other payment made pursuant to Federal law which is specified by the Secretary for purposes of this paragraph.
    (D) Requests for withholding
    Rules similar to the rules that apply to annuities under subsection (o)(4) shall apply to requests under this paragraph and paragraph (2).

    (2) Voluntary withholding on unemployment benefits

     

    If, at the time a payment of unemployment compensation (as defined in section 85 (b)) is made to any person, a request by such person is in effect that such payment be subject to withholding under this chapter, then for purposes of this chapter and so much of subtitle F as relates to this chapter, such payment shall be treated as if it were a payment of wages by an employer to an employee. The amount to be deducted and withheld under this chapter from any payment to which any request under this paragraph applies shall be an amount equal to 10 percent of such payment.

     

    (3) Authority for other voluntary withholding

    The Secretary is authorized by regulations to provide for withholding—

    (A) from remuneration for services performed by an employee for the employee’s employer which (without regard to this paragraph) does not constitute wages, and
    (B) from any other type of payment with respect to which the Secretary finds that withholding would be appropriate under the provisions of this chapter,
    if the employer and employee, or the person making and the person receiving such other type of payment, agree to such withholding. Such agreement shall be in such form and manner as the Secretary may by regulations prescribe. For purposes of this chapter (and so much of subtitle F as relates to this chapter), remuneration or other payments with respect to which such agreement is made shall be treated as if they were wages paid by an employer to an employee to the extent that such remuneration is paid or other payments are made during the period for which the agreement is in effect.

    3.2  26 CFR §31.3402(p)-1

    Title 26: Internal Revenue
    PART 31—EMPLOYMENT TAXES AND COLLECTION OF INCOME TAX AT SOURCE
    Subpart E—Collection of Income Tax at Source

    Sec. 31.3402(p)-1  Voluntary withholding agreements.

    (a) In general. An employee and his employer may enter into an agreement under section 3402(b) to provide for the withholding of income tax upon payments of amounts described in paragraph (b)(1) of §31.3401(a)–3, made after December 31, 1970. An agreement may be entered into under this section only with respect to amounts which are includible in the gross income of the employee under section 61, and must be applicable to all such amounts paid by the employer to the employee. The amount to be withheld pursuant to an agreement under section 3402(p) shall be determined under the rules contained in section 3402 and the regulations thereunder. See §31.3405(c)–1, Q&A–3 concerning agreements to have more than 20-percent Federal income tax withheld from eligible rollover distributions within the meaning of section 402.

    (b) Form and duration of agreement

    (2) An agreement under section 3402 (p) shall be effective for such period as the employer and employee mutually agree upon. However, either the employer or the employee may terminate the agreement prior to the end of such period by furnishing a signed written notice to the other. Unless the employer and employee agree to an earlier termination date, the notice shall be effective with respect to the first payment of an amount in respect of which the agreement is in effect which is made on or after the first "status determination date" (January 1, May 1, July 1, and October 1 of each year) that occurs at least 30 days after the date on which the notice is furnished. If the employee executes a new Form W-4, the request upon which an agreement under section 3402 (p) is based shall be attached to, and constitute a part of, such new Form W-4.

    3.3  26 CFR §31.3401(a)-3(a)

    26 CFR §31.3401(a)-3 Amounts deemed wages under voluntary withholding agreements

     

    (a) In general. Notwithstanding the exceptions to the definition of wages specified in section 3401(a) and the regulations thereunder, the term “wages” includes the amounts described in paragraph (b)(1) of this section with respect to which there is a voluntary withholding agreement in effect under section 3402(p). References in this chapter to the definition of wages contained in section 3401(a) shall be deemed to refer also to this section (§31.3401(a)–3).

     

    (b) Remuneration for services. (1) Except as provided in subparagraph (2) of this paragraph, the amounts referred to in paragraph (a) of this section include any remuneration for services performed by an employee for an employer which, without regard to this section, does not constitute wages under section 3401(a). For example, remuneration for services performed by an agricultural worker or a domestic worker in a private home (amounts which are specifically excluded from the definition of wages by section 3401(a) (2) and (3), respectively) are amounts with respect to which a voluntary withholding agreement may be entered into under section 3402(p). See §§31.3401(c)–1 and 31.3401(d)–1 for the definitions of “employee” and “employer”.

  6. Ask the IRS to:

    4.1. Use the above penalty against the person who submitted the wrong form to being with, so these erroneous reports are no longer filed.

    4.2  Institute a criminal investigation against the submitter for providing false information returns, pursuant to 26 U.S.C. §7207.

  7. Attach our free memorandums of law below explaining WHY you are not engaged in a "trade or business" and ask them to rebut it:

    The Trade or Business Scam, Form #05.001
    http://sedm.org/Forms/MemLaw/TradeOrBusScam.pdf

  8. Attach an "Affidavit of Duress" indicating that the private employer or business associate threatened to either not hire you or fire you if you did either of the following:

    6.1  Refused to submit an IRS form W-2 or/and. . .

    6.2  Submitted an IRS form W-8BEN instead of an IRS form W-2.  See:  About IRS form W-8BEN for details.

  9. Attach a copy of the certified correspondence you sent to the submitter of the false information returns showing that you tried to get them to correct it and they refused.

  10. Emphasize to the IRS that they may only institute penalties against employees and officers of corporation and partnership that are part of the federal government.  See or attach the following to your correspondence as explanation if you have to:
    8.1  IRS Due Process Meeting Handout, Form #03.005
          http://sedm.org/Forms/Discovery/IRSDueProcMtgHandout.pdf

    8.2  Why Penalties are Illegal for Anything But Federal Employees, Contractors, and Agents, Form #05.010
           http://sedm.org/Forms/MemLaw/PenaltiesIllegal.pdf

Below is a link to both the Standard and Amended IRS form 4852, so you can compare and see the differences for yourself.  The forms listed are electronically fillable with the free Acrobat Reader so that you can customize them to your own needs.

Remember the following requirements for the IRS Form 4852:

  1. One 4852 form must be filled out for EACH Form W-2 (OFFSITE LINK) or Form 1099 (OFFSITE LINK) that was wrongfully filed on you, and must include all the information about the original organization that made the report.

  2. If you don't have a "Taxpayer Identification Number" and only have a "Social Security Number", do NOT write the SSN on the 4852 form because it is not a "Taxpayer Identification Number" (OFFSITE LINK) and if you don't consent to participate in the donation program called the Internal Revenue Code, then you shouldn't be volunteering any information that would allow them to conclude that you consented.

  3. Do NOT attach or send in the original Form W-2 (OFFSITE LINK) or Form 1099 (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 4852 is filled out with all the same information as what was on the original W-2 or 1099, including "taxes" paid, but the "income", "wages", "taxable income", etc blocks will be "zero" in items 7(A)(a) through 7(A)(e) and 7(B)(1) through 7(B)(3).  Only the SSN is removed from the 4852 because it is not authorized under 26 CFR 301.6109-1(d)(3) (OFFSITE LINK) because you are not an "alien".

  5. If you don't have the original erroneous 1099 and W-2 (OFFSITE LINK) reports, then you won't have anything you can start with to transfer numbers onto the 4852.  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 items 7(A)(a) through 7(A)(e) and 7(B)(1) through 7(B)(3) the amount "zero".

  6. Under block 8, entitled "8. How did you determine the amounts in item 7 above?" put the following, or say "See signed attachment" and there put:

"Recipient does not have a voluntary withholding agreement in place, and therefore does not earn "wages" as legally defined under 26 CFR §31.3401(a)-3(a).  The amounts reported on the W-2 should not have been reported at all, and even if a form had been sent in, Block 1 of the W-2 (wages, tips, and other compensation) should have been zero.  He is also a nonresident alien not engaged in a "trade or business" as defined in 26 USC 7701(a)(26) who is domiciled and who works outside the United States and outside of federal jurisdiction and therefore not subject to Subtitle A of the Internal Revenue Code and not required to make any gross income reports.  26 USC 864(b)(1)(A) says his earnings are not reportable or taxable.  Payer was illegally coerced to file fraudulent W-2/1099 against recipient.  If you disagree, please completely rebut the evidence within ten days at:

 http://famguardian.org/TaxFreedom/Forms/TestForTaxProf/TestForFedTaxProfessionals.htm

or you agree with us and are estopped from future disputes over these facts.

  1. Under block 9, entitled "9. Explain your efforts to obtain Form W-2, 1099-R, or W-2c, Statement of Corrected Income and Tax Amounts." put the following or say "See signed attachment" and there put:

"Payer was irrational and unwilling to discuss the law and the evidence backing up my believes because under illegal duress by the IRS.  I do not consent to his undefended or unjustified beliefs, which are nothing but religion until defended with evidence and law available at.  http://famguardian.org/TaxFreedom/Forms/Discovery/Deposition/Deposition.htm.

If you disagree, please rebut the overwhelming evidence above within ten days.  Any admissions you do not address shall be admitted.

Some states have their own substitutes for the IRS form 4852.  These substitutes must be used when you are filing state income taxes, but accomplish the same affect as the IRS form 4852.  For instance, the California Franchise Tax Board (FTB) uses the form 3525 as a substitute for the IRS form 4852.  Your state may also have an equivalent substitute form.  If your state does not have a 4852 substitute form and you are corresponding with a state revenue agency, then its best to provide either a corrected form W-2 or 1099, or to use the IRS form 4852 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:

2.5  IRS Form 4598: Submit to Private Employer to get him to permanently correct reporting

IRS makes one other form that serves the same purpose as the form 4852, and this is the IRS Form 4598, which is called "Form W-2, 1099, 1098, or 1099 Not Received, Incorrect or Lost". The form is typically is sent out to private employers by the IRS when a person reports that the W-2 amounts are incorrect from their employer, but it can also be sent directly to either the IRS or the employer by the individual as well.  Below is the description of this form from the IRS Published Products Catalog, 2003 Edition:

4598   23205B   Set

04/2002 Use/Issue Prev Issue First

Form W-2 or 1099 Not received Incorrect or lost

Form 4598 is a two-part form.  Part 1 is sent to the employer or payer requesting issuance of Form W-2 or 1099.  Part 2 is sent to the employee or payee to show action IRS is taking to help them obtain this information.  W:CAS:AM:PPG Tax Related Public Use

This form is NOT available on the IRS website and is VERY difficult to get a copy of.  This is not a mistake, but a deliberate attempt by the IRS to deprive you of a remedy for illegal efforts by private employers to criminally compel you into economic servitude to the government.  Below are the ORIGINAL and AMENDED IRS forms for your reuse.

The reason that IRS does not make this form available on their website is because it is VERY effective in zeroing out false reports of earned "wages" from IRS computer systems and thereby stopping collection actions related to the false reports.  IRS estimates that over 850,000 copies of the form are received yearly by them, even though they don't make the form available on their website.  You can request a copy of this form from:

IRS Area Distribution Center: 800-829-2437.  Open 8am-4pm Central Standard Time

The above distribution center may give you a hard time about providing the form and hem and haw on the phone when you ask for it.  I wonder why? (Hee..Hee..Heee!) However, they will eventually mail it to you if you ask for it based on several reports.

2.6  Corrected Information Return Attachment Letter

We have prepared a sample letter in Microsoft Word format that you can use to attach to your IRS form 4852 or corrected IRS form 1099 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:

3.  How the Information Return Correction process works

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

  1. Complete corrected Information Returns:

    1.1  Complete form W-2c for all years false W-2 reports were made against you using these procedures..

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

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

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

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

    1.4 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

    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).  Click here (OFFSITE LINK) for details.

  2. 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.

  3. Mail one set of completed forms above to EACH of the following TWO separate destinations:

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

    3.2.      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 #04.020

    http://sedm.org/Forms/Tax/CorrErrInfoRtns/CorrectedInfoReturnLetter.pdf
  4. 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.
  5. 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.
  6. 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

4.  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

5.  Examples

Below are some example documents to help show you how to fill out the 4852 to correct an erroneous IRS form W-2.  Note that you should not use this form to correct an erroneous 1099-MISC or any 1099 other than the 1099-R.  Click here for instructions on how to correct the 1099-MISC and other 1099 forms.

IRS Form sent in by institution Example completed
original form		 Example Amended
4852 replacement
Form W-2 W-2 example 4852 Replacement for W-2

6.  Frequently Asked Questions

Q1:  What if I don't have the original 1099 or W-2 forms that I want to zero out that I can take the original information from to put on the 4852?

A1:  You can call the provider and ask them to fax you the 1099 or W-2 information again.  Alternatively, you can file a 4852 that simply says "All sources" under item 5 on the 4852 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 4852 for past years, or only for the years they are going after me for?

A3:  It's always safest to file 4852 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.

7.  Saving and reusing completed forms

The form 4852 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.

8.  Stopping the false W-2 Reports from being filed in the first place

The IRS Forms 4852 and W-2C are for use primarily in undoing the damage done by private employers, who usually because of their ignorance of the law, either unlawfully complete and submit Information Returns such as the W-2, or who unlawfully put false information on these returns.  The 4852 is filed with one's tax return and the W-2C is filed after the private employer files the false W-2.  If you would like to permanently prevent this problem from happening in the future, then we suggest using the following procedure below:

  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, 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:

    PDF In Member Subscriptions

    Member Subscriptions

    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.

  3. Next, if the above does not resolve the dispute with your private employer, you can send in an IRS form SS-8 asking them to issue what amounts to a declaratory judgment on the dispute between you and your private employer.  You may want to send in this form BEFORE you even begin looking for new employment, and keep it in your back pocket so that the hiring process is not delayed waiting for a response from the IRS.  Attach to the SS-8 form the following:

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

    4.2  Our free memorandum of law entitled The "Trade or Business Scam", Form #05.001.  Have them answer the questions at the end of this pamphlet so that the parties are clear on what the law requires.

    4.3  Our free memorandum of law entitled Reasonable Belief About Income Tax Liability, Form #05.007.  Emphasize that the IRS' answers must be consistent with the content of this pamphlet, which means that the only thing they can suggest as a basis for reasonable belief, according to the courts and their own Internal Revenue Manual, is 1.  The Statutes at Large after January 2, 1939; 2.  The Constitution; 3.  The rulings of the U.S. Supreme Court and not lower courts; 4. NOT the Internal Revenue Code; 5.  Not any IRS form, publication, or revenue ruling.  Explain that this pamphlet is the government's and courts own words on the subject of what you can believe, and nothing the IRS says or writes are included in what you can believe.  Therefore, the only thing you can accept is legally admissible evidence in the form of an affidavit under penalty of perjury where the speaker is held personally accountable for his untruths, not unlike what we have to do when we send the IRS a tax return.

    Emphasize to the IRS that you want the questions answered under penalty of perjury as required by 26 U.S.C. §6065, that the real legal name and STATE ID, not IRS ID be included in the IRS response showing the real identity of the agent, and that if they deviate from the requirements of the Reasonable Belief pamphlet, they must cite stare decisis and enactments from the Statutes At Large as authority for doing so, because you can't accept "policy", but only legally admissible evidence signed under penalty of perjury.  Remind them that the U.S. Supreme Court said we are a society of law and not men, or the policies of men not demonstrably derived DIRECTLY from law.  Emphasize that the I.R.C. is not positive, but simply a presumption, according to 1 U.S.C. §204, and that presumptions are a violation of due process and are not evidence.  Click here for details on why the I.R.C. is not a suitable basis for belief because it is simply a presumption and a state sponsored religion.

  4. After the private employer has been confronted about the false information returns, if the IRS refuses its legal duty to resolve the dispute in compliance with step 2 above, and if the private employer persists and insists on continuing to violate the laws on either withholding or reporting, you can write the IRS to ask them to correct the false information return and also financially and civilly penalize the employer 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.  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.

    5.1  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.

    5.2  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:

    5.2.1  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.

    5.2.2  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.

    5.2.3  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.

    5.2.4  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 refuses to accept their legal duty 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:

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

    6.1.1  26 U.S.C. §7207: Fraudulent Returns, Statements, or other documents

    6.1.2  18 U.S.C. §912: Falsely impersonating an officer [PUBLIC OFFICER] or employee of the United States

    6.1.3  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.

    6.2  Charge the IRS with the following:

    6.2.1  18 U.S.C. §3:  Misprision of felony.  The IRS is cooperating with the crimes of the information return submitter and withholding agent.

    6.2.2  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.

    6.2.3  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/Emancipation/SSTrustIndenture.pdf

    6.2.4  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).

    6.2.5  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.

    6.2.6