Ex-employer didn't withhold social security and medicare taxes

[sm123451]

I switched jobs last year and just received my W-2 from my previous employer for 2024. In that W2, I can see that no Social Security or Medicare taxes were withheld from my paychecks. Upon further checking, I see that they were not withheld in my 2023 W2 as well. 

I'm a foreign national who met the substantial presence test (5 years) when I started that previous job, so I think those taxes should've been withheld. Upon contacting the employer, they mentioned that since I was on an F1 visa they automatically put me down as a non-resident for tax purposes and are unwilling to give me a corrected W2 for this or last year, quote: "There is no way for us to make any corrections, because 2023 and 2024 are closed and you are no longer employed with the company."

I got my full refund for 2023, so I think I can file my taxes the same way for 2024. But I'm worried about any personal liability around those taxes, and potential trouble with the IRS. I'd much rather just pay the IRS what I owe than deal with an audit. Questions:

1. Is a non-resident who meets the substantial presence test personally liable for social security taxes that were incorrectly not withheld by the employer?

2. What're my options here? Should I file the Form 8919 and inform my previous employer that I'm doing so?  Should I file taxes regularly as I did last year?

To make matters worse, I need to file taxes in three different states. Does that affect anything at all?

[DaveF1006]

To clarify, what was the date when you first entered the country as a F-1 visa holder?

[sm123451]

August 2018, and I started my previous job in July 2023

[DaveF1006]

If you met the substantial presence test, you became a resident alien starting in year 2023 thus FICA taxes should have been withheld starting year 2023. This means these should have been withheld in 2024 as well. Here is how to file form 8919 in your Turbo Tax return for year 2024.

1. Open TurboTax and sign in to your account.
2. Navigate to the Federal section: Click on "Federal" in the left-hand menu.
3. Go to Wages & Income: On the "Your 2024 Income Summary" screen, scroll down to the last section called "Less Common Income."
4. Select Miscellaneous Income: Click the "Start" button for "Miscellaneous Income, 1099-A, 1099-C."
5. Choose Other Income: On the next screen, click the "Start" button for "Other income not already reported on a Form W-2 or Form 1099."
6. Answer the questions: The next few screens will ask about household employee wages, sick or disability pay, and Medicaid waiver payments. Click "Continue" on these screens without entering anything.
7. Enter Employee Compensation: When asked if you earned any other wages, select "Yes" and click "Continue." Then, select "Employee compensation that was not reported on a W-2."
8. Enter Employer Information: On the "Report Your Wage Income" screen, enter your employer's name and EIN from your W-2. For "Total Wages Received," 

TurboTax will prepare and file Form 8919 for you with your return, and the Social Security and Medicare taxes will be calculated and included in your total tax liability.

You will need to amend your 2023 and repeat the same steps I have just listed. if you used Turbo Tax in 2023, here is the amendment process.

To amend your return using Turbo Tax Online.

1. Log into Turbo Tax
2. Select Scroll down Your tax returns & documents in your landing page.
3. Select Amend (change) 2023 return.  

To amend using the 2023 Desktop Software, go to:

1. Federal Taxes
2. Other Tax Situations>other tax forms
3. Amend a return

[sm123451]

I have a few follow-up questions:

1. If I file form 8919 for 2024, does that trigger an audit for my employer since my employer will have to match the taxes that I will pay?

2. If there is an audit, my  ex-employer is going to claim that I was a non-resident, even though they had my correct I-20 on file which is the document that houses my SEVIS ID which when run through USCIS database will prove that I was a resident. Will the IRS be able to use this information to make that determination?

--> Otherwise, I'm worried that along with my ex-employer being audited I'll get an audit/summons from the IRS, or some sort of lawsuit from my ex-employer, both of which I'd like to avoid at all costs.

3. Is it wise to inform my ex-employer that I'm submitting form 8919?

4. How do taxes impact immigration rules? Am I more likely to get into immigration trouble? Should I consult an immigration lawyer before triggering something like an audit for my ex-employer?

5. I'll have to file an amended return through FreeTaxUSA which only allows paper returns. Is there any way I can import that into TurboTax to minimize my effort to submit taxes?

If you're able to help me file my taxes correctly this year, amend taxes from last year, and help me through the process in case there's retaliation from my ex-employer / IRS I'd love to employ your services. If you think there's no risk of that happening, I'd appreciate you letting me know/helping me answer the questions I noted above to the best of your abilities. Thanks a LOT for your help! 

[DaveF1006]

No filing an 8919 should not trigger an audit with the IRS. it does prove to the IRS that you are diligent and fulfilling your filing requirements as an US resident alien. 

if there is an audit, you have the necessary documents to prove that you are a Resident Alien for 2024. You have the proof to withstand an audit since the IRS has that information on file. With this proper documentation, I doubt that your ex-employer has a basis for a lawsuit.

I cannot comment on whether it is wise or not to inform your employer that you are filing Form 8919. You are not obligated to report this to them.  If you feel obligated because of an act of courtesy, then you can decide for yourself if this is something that you feel obligated or not.

immigration issues are complex and are best answered by immigration experts. You might contact US Immigration and Custom Enforcement here before hiring an immigration specialist and see if they can answer your question about taxes and immigration rules. They will have the specific answers that we may not be able to answer.

Unless you have already filed a 2024 return elsewhere, there is no need to file an amended return. If you filed elsewhere however, there is no way to report that information into Turbo Tax to file your amendment. You would need to create a return in Turbo Tax, indicate you wish to mail your return, and then prepare an amendment. If you do this however, you still would not be able to electronically file an amended return through Turbo Tax because the program will recognize your mock return being mailed. 

My suggestion would be to file your amendment through FreeTaxUSA if you originally filed through them.  Turbo Tax does have a Full Service tax professionals but i am not certain if this is beneficial in your case.  If you feel strongly about this, go to Turbo Tax and create an account. After you register with a username and password, you will be asked if you wish to have a tax professional prepare your taxes. If you say yes, then you will be directed toward a tax professional for a price