WITHHOLDING RESEARCH page 13
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§ 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. (1)(i) Except as provided in subdivision (ii) of this subparagraph, an employee who desires to enter into an agreement under section 3402(p) shall furnish his employer with Form W–4 (withholding exemption certificate) executed in accordance with the provisions of section 3402(f) and the regulations thereunder. The furnishing of such Form W–4 shall constitute a request for withholding.
(ii) In the case of an employee who desires to enter into an agreement under section 3402(p) with his employer, if the employee performs services (in addition to those to be the subject of the agreement) the remuneration for which is subject to mandatory income tax withholding by such employer, or if the employee wishes to specify that the agreement terminate on a specific date, the employee shall furnish the employer with a request for withholding which shall be signed by the employee, and shall contain—
(a) The name, address, and social security number of the employee making the request,
(b) The name and address of the employer,
(c) A statement that the employee desires withholding of Federal income tax, and applicable, of qualified State individual income tax (see paragraph (d)(3)(i) of §301.6361–1 of this chapter (Regulations on Procedures and Administration)), and
(d) If the employee desires that the agreement terminate on a specific date, the date of termination of the agreement.
If accepted by the employer as provided in subdivision (iii) of this subparagraph, the request shall be attached to, and constitute part of, the employee's Form W–4. An employee who furnishes his employer a request for withholding under this subdivision shall also furnish such employer with Form W–4 if such employee does not already have a Form W–4 in effect with such employer.
(iii) No request for withholding under section 3402(p) shall be effective as an agreement between an employer and an employee until the employer accepts the request by commencing to withhold from the amounts with respect to which the request was made.
(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.
(86 Stat. 944, 26 U.S.C. 6364; 68A Stat. 917, 26 U.S.C. 7805)
[T.D. 7096, 36 FR 5216, Mar. 18, 1971, as amended by T.D. 7577, 43 FR 59359, Dec. 20, 1978; T.D. 8619, 60 FR 49215, Sept. 22, 1995]
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Section 508 / Accessibility
Last updated: August 7, 2006
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Did you catch all of that? Have you EVER had a private employer show you that text?
MY SUMMARY:
So from the totality of this research, it can be safely concluded that:
(a) The 26 USC 7701(A)(16) definition of “withholding agent” clearly and apparently only covers four sections that withholding governs, which severely limits the authority and scope of the MANDATORY functions of withholding agents.
(b) those four sections governed by withholding are 26 USC 1441, 1442, 1443 and 1461.
(c) 26 USC 1441 covers withholding of tax on non-resident aliens, and it has two regulations, 26 CFR 1 and 26 CFR 31, which means it can be enforced on non-resident aliens, but it still does not apply to me, as I am NOT a Non-Resident Alien, and 1441 is in Subchapter A, which is in Chapter 3, which does not apply to me.
(d) 26 USC 1442 covers withholding of tax on foreign corporations, that does not apply to me, since I own NO Foreign Corporation. Further, it has NO regulations, and therefore it cannot be LAWFULLY enforced on me or anyone else who claims and exercises the Supreme Court defense. Further, Subchapter A is in Chapter 3, which does not apply to me.
(e) 26 USC 1443 covers withholding of tax on foreign tax-exempt organizations, that do not apply to me, since I own no Foreign Tax-Exempt Organization. Further, it does have one regulation, 26 CFR 1, which means it can be enforced on those foreign tax-exempt organizations, but it still does not apply to me, because it is in Subchapter A and Chapter 3.
(f) 26 USC 1461 establishes the liability of the “withholding agent” to deduct and withhold funds controlled under chapter 3, and is indemnified for doing so when withholding strictly for those, but 26 USC 1461 has NO regulations, and therefore cannot LAWFULLY be enforced against me, or anyone else who claims and exercises the Supreme Court defense.
(g) 26 USC, Title A, Chapter 3, is strictly for Withholding of Tax on Non-Resident Aliens and Foreign Corporations, therefore the entire contents of Chapter 3 does not apply to me at all, and therefore 26 USC 1461 cannot apply to me, being in Chapter 3.
(h) 26 USC Title A, Chapter 3 contains only two Subchapters, A and B.
(i) 26 USC Title A, Chapter 3, Subchapter A contains Sections; 1441, 1442 and 1443, which have already been discussed above, leaving only 1444, 1445 and 1446.
(j) 26 USC 1444 deals strictly with withholding on Virgin Islands source income, which does not apply to me, and because it is in Subchapter A, which is in Chapter 3, and because it has no regulations, it does not apply to me and cannot be LAWFULLY enforced on me or anyone else who claims and exercises the Supreme Court defense.
(k) 26 USC 1445 deals with withholding 10% from the profits of a Foreign person who owns property in the U.S. and who sells it, which does not apply to me, and because it is in Subchapter A, which is in Chapter C. Further, it has one regulation and therefore can be enforced on those specific persons to whom it applies, but I am not one of them.
(l) 26 USC 1446 deals with withholding of tax on a Foreign Partner’s share of effectively connected income, which does not apply to me. And it has NO regulations and therefore cannot LAWFULLY be enforced.
(m) 26 USC Title A, Chapter 3, Subchapter B only contain Sections 1451, 1461, 1462, 1463, 1464 and 1465.
(n) 26 USC Title A, Chapter 3, Subchapter B, section 1451 and 1465 were repealed, so they apply to no one, leaving only 1461, 1462, 1463 and 1464 to examine.
(o) 26 USC Title A, Chapter 3, Subchapter B, section 1461 was already covered above at (f) and has no regulations, and so it cannot LAWFULLY be used against me, and does not apply to me due to being in Chapter 3, “Withholding of Tax on Non-Resident Aliens and Foreign Corporations”.
(p) 26 USC 1462 deals with withheld tax as credit to recipient of income, but has NO regulations, and so it cannot LAWFULLY be used against me, and does not apply to me due to being in Subchapter B, which is in Chapter 3, “Withholding of Tax on Non-Resident Aliens and Foreign Corporations”.
(q) 26 USC 1463 deals with tax paid by recipient of income, and has NO regulations, and so it cannot LAWFULLY be used against me, and does not apply to me by being in Subchapter B, which is in Chapter 3 Withholding of Tax on Non-Resident Aliens and Foreign Corporations.
(r) 26 USC 1464 deals with Refunds and credits with respect to withheld tax, and it also has NO regulations, and so it cannot LAWFULLY be used against me, and does not apply to me by being in Subchapter B, which is in Chapter 3 Withholding of Tax on Non-Resident Aliens and Foreign Corporations.
(s) The United States Supreme Court ruled three times that Statutes without Enforcement Regulations cannot lawfully be enforced on anyone, and those rulings are mirrored in three more Federal Rulings in lower courts, providing sufficient stare decisis to use as a defense.
(t) The Internal Revenue Manual 5.14.10.2.2. clearly shows that private employers, states, and political subdivisions are not required to enter into payroll deduction agreements.
(u) The Code of Federal Regulations, at 26 CFR 31.3402(p)-1 entitled “VOLUNTARY WITHHOLDING AGREEMENTS” clearly states that “An employee and his employer MAY enter into an agreement to provide for withholding. MAY is clearly an optional word and not a mandatory word.
(v) The Code of Federal Regulations, at 26 CFR 31.3402(p)-1 entitled “VOLUNTARY WITHHOLDING AGREEMENTS” clearly states that “an employee who desires to enter into an agreement under section 3402(p) shall furnish his employer with Form W–4 (withholding exemption certificate) executed in accordance with the provisions of section 3402(f) and the regulations thereunder. The furnishing of such Form W–4 shall constitute a request for withholding.”, which CLEARLY uses the words, “VOLUNTARY, DESIRES and REQUEST” therefore CANNOT be MANDATORY.
(w) The Code of Federal Regulations, at 26 CFR 31.3402(p)-1 entitled “VOLUNTARY WITHHOLDING AGREEMENTS” clearly states that “(iii) No request for withholding under section 3402(p) shall be effective as an agreement between an employer and an employee until the employer accepts the request by commencing to withhold from the amounts with respect to which the request was made.”, which contains the word “REQUEST” twice, therefore clearly making this withholding VOLUNTARY.
(x) The Code of Federal Regulations, at 26 CFR 31.3402(p)-1 entitled “VOLUNTARY WITHHOLDING AGREEMENTS” clearly states that “(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.”, which clearly means that the withholding agreement must be MUTUAL, and IF a withholding agreement already exists between an employer and an employee, AND IF either of the two desire to terminate the agreement, prior to the end of the agreed ending date, that ALL ONE HAS TO DO IS PROVIDE THE OTHER WITH A SIGNED WRITTEN NOTICE TO THE OTHER.
(y) and further, the withholding agreement under 26 CFR 31.3402(p)-1 must be applicable, and to be applicable, one of the above statutes (Chapter 3, Subchapter A) 1441, 1442, 1443, 1444, 1445, 1446, or (Chapter 3, Subchapter B) 1451, 1461, 1462, 1463, 1464 or 1465 must apply, and must have regulations to be enforceable.
Withholding Research PAGE 1 2 3 4 5 6 7 8 9 10 11 12 13 14
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