Devvy Kidd
August 30, 1999

Published in Media Bypass Magazine October & November 1999

The subject of social security, as we all know, continues to be referred to in political circles as a "sacred cow." What isn't referred to in political circles is the truth about this mathematically flawed system, the fact that social security is a tax and employers throughout this country have been forced into becoming unpaid tax collectors for the IRS.

There is a great deal of confusion on the part of employers regarding their obligation to the IRS regarding SS taxes and to their employees. I think the best way to address these concerns is ask two very specific questions and provide the responses from SSA and then determine what the law says in Title 42 and Title 26.

    Q: As an employer, I have been told that every person who works in the United States must have a social security number and present that number to me for tax reporting purposes. Is this true?

    A: Let's look at the response from SSA in a letter to Mr. Scott McDonald dated March 18, 1998 from Charles Mullen, Associate Commissioner, Office of Public Inquiries, SSA:

"The Social Security Act does not require a person to have a Social Security Number (SSN) to live and work in the United States, nor does it require an SSN simply for the purpose of having one. However, if someone works without an SSN, we cannot properly credit the earnings for the work performed."

Now, it would appear from even a basic understanding of the English language, that what Mr. Mullen said is this: No one is required to have an SSN to either live or work in the United States. If that person does not have this number but does work, no social security taxes would be taken out of their paycheck and there would be no credit ledger entry made in their name for taxes paid.

One would think this is quite plain and clear. However, let's look at another letter from the same Charles Mullen about one month earlier (February 24, 1998) addressed to me:

"People cannot voluntarily end their participation in the program [SS]. The payment of social security taxes is mandatory, regardless of the citizenship or place of residence of either the employer or the employee. Unless specifically exempted by law, everyone working in the United States is required to pay Social Security taxes."

There seems to be a problem here: In one letter, Mr. Mullen states that having a social security number is voluntary and no one is required to have this number to either live or work in the U.S. In another letter Mr. Mullen states that the payment of social security taxes is mandatory and that everyone working in the United States is required to pay SS taxes. To borrow a little phrase from the movie, Apollo 13, with one minor change: "Washington, we have a problem."

Does anyone else in the U.S. government have an answer to this question? Let's look at the response in a letter from the U.S. Department of Justice, Daniel W. Sutherland, Attorney, Office of Special Council, dated April 28, 1993:

"The Office of Special Counsel does not possess any of the documents you requested. It is possible that other federal agencies would have information or documents on the need to have a SSN. However, under the Immigration Reform and Control Act, there is no requirement that a person present a Social Security Card for the purpose of proving his eligibility to work. In fact, the opposite is the case."

And, one more from Charles Mullen, March 9, 1999:

"People cannot voluntarily end their participation in the program [SS]. The payment of Social Security taxes is mandatory....Benefits are paid only on the basis of a voluntary application....The constitutionality of the Social Security System, as established by the Social Security Act, and mandatory individual participation have already been decided by the Supreme Court. We will not respond further to your correspondence about voluntary participation in the SS program."

So far we have (1) This program is voluntary and (2) This program is mandatory.

We also have: (1) No individual living or working in the U.S. is required to have this number to be eligible for employment, therefore they would not be paying this tax, and (2) Payment of such taxes if you work in the United States is mandatory and therefore you must acquire this number.

This is what I call government lie-speak. No one is required to have this number but if they do apply for it because they have been forced to do so by being lied to, then they can't withdraw from this voluntary program even if they state they will never file a voluntary application for benefits. Hmm. It sounds to me like the inmates are running the asylum.

Additionally, few people know it, but there is a section in Title 42 regarding state employees:


SEC. 218. [42 U.S.C. 418] (a)(1) The Commissioner of Social Security shall, at the request of any State, enter into an agreement with such State for the purpose of extending the insurance system established by this title to services performed by individuals as employees of such State or any political subdivision thereof. Each such agreement shall contain such provisions, not inconsistent with the provisions of this section, as the State may request.

If you read this section it says that state employees already covered under state retirement programs are not required to participate in the Social Security Program but that the states may enter into an agreement to provide this social insurance program to their employees. Hmm. Seems to me we have a difference of opinion once again between what Mr. Mullen says and what the law reads. I happen to know that this is creating hell for individuals fighting the IRS who work for either state or county agencies and wish to withdraw their voluntary withholding agreements.

Going back to Mr. Mullen's last letter, he states that the IRS has jurisdiction over the issue of liability for Social Security taxes. Let's back up for a moment and take a look at what Title 42 says about all this. Title 42 is, of course, The Federal Old-Age, Survivors and Disability Insurance Benefits Program. This "insurance" program is about five huge tomes of incredible double-talk. However, we will go directly to Section 405 that deals with the specific issue as to who can and cannot apply for this number:

42 U.S.C. Section 405(c)(2)(B):

"(B)(i) In carrying out the Commissioner's duties under subparagraph (A) and subparagraph (F), the Commissioner of Social Security shall take affirmative measures to assure that social security

account numbers will, to the maximum extent practicable, be assigned to all members of appropriate groups or categories of individuals by assigning such numbers (or ascertaining that such numbers have already been assigned);

"(I) to aliens at the time of their lawful admission to the United States either for permanent residence or under other authority of law permitting them to engage in employment in the United States and to other aliens at such time as their status is so changed as to make it lawful for them to engage in such employment;

"(II) to any individual who is an applicant for or recipient of benefits under any program financed in whole or in part from Federal funds including any child on whose behalf such benefits are claimed by another person; and

"(III) to any other individual when it appears that he could have been but was not assigned an account number under the provisions of subclauses (I) or (II) but only after such investigation as is necessary to establish to the satisfaction of the Commissioner of Social Security, the identity of such individual, the fact that an account number has not already been assigned to such individual, and the fact that such individual is a citizen or a noncitizen who is not, because of his alien status, prohibited from engaging in employment; and, in carrying out such duties, the Commissioner of
Social Security is authorized to take affirmative measures to assure the issuance of social security numbers;

"(IV) to or on behalf of children who are below school age at the request of their parents or guardians; and

"(V) to children of school age at the time of their first enrollment in school."

We find more government lie-speak and the obligation or duty to apply for and obtain a Social Security card or number at 20 C.F.R., section 422.103:

"(b) Applying for a number. (1) Form SS-5. An individual needing a social security number may apply for one by filing a signed Form SS-5, 'Application for a Social Security Card,' at any social security office and submitting the required evidence...

"(2) Birth Registration Document. The Social Security Administration (SSA) may enter into an agreement with officials of a state...to establish, as part of the official birth registration process, a procedure to assist SSA in assigning social security numbers to newborn children. Where an agreement is in effect, a parent, as part of the official birth registration process, need not complete a Form SS-5 and may request that SSA assign a social security number to the newborn child.

"(c) How numbers are assigned. (1) Request on form SS-5. If the applicant has completed a Form SS-5, the social security office...that receives the completed Form SS-5 will require the applicant to furnish documentary evidence...After review of the documentary evidence, the completed Form SS-5 if forwarded...to SSA's central office...If the electronic screening or other investigation does not disclose a previously assigned number, SSA's central office assigns a number and issues a social security number card...

"(2) Request on birth registration document. Where a parent has requested a social security number for a newborn child as part of an official birth registration process described in paragraph (b)(2) of this section, the State vital statistics office will electronically transmit the request to SSA's central office....Using this information, SSA will assign a number to the child and send the social security number card to the child at the mother's address."

Every American has the right to be fully informed of the law and the consequences of entering into any contract that binds them to any program. Forcing a newborn, incapable of understanding anything other than life giving functions such as food and shelter or a teenager to enter into a voluntary program for which they have no understanding, is reprehensible and flies in the face of all the principles of freedom and free choice that this nation was founded upon.

Now, I say this to employers throughout this land: If having a social security number were mandatory for every individual living and/or working in this country, why do individuals have to apply for the number? If it were mandatory, the government would automatically issue everyone a number at some designated time. They don't do this and the reason is clear: It is a voluntary tax that individuals may choose to pay in order to apply to receive a benefit whenever the benevolent in Congress decide they can retire from the work force. Recall the words above:

"..the Commissioner of Social Security shall take affirmative measures to assure that social security account numbers will, to the maximum extent practicable, be assigned to all members of appropriate groups or categories of individuals..." No where here does it state that the Commissioner of SS must force this number upon any "appropriate groups or categories of individuals..."

Now we have seen what the Social Security Act says but what does Title 26, the Internal Revenue Code say about all this? Title 26 - Specific sections which apply to social security:

Subtitle C - Employment Taxes, specifically Chapter 21 - Employment Taxes and the Federal Insurance Contributions Act found in Vol. 2, page 6125 of the IR Code. No where in this entire chapter does it state anywhere that anyone is required to have a social security number. It simply uses the boilerplate language such as:

Sec. 3101 Rate of Tax

(A) Old-Age, Survivors and Disability Insurance. - In addition to other taxes, there is hereby imposed on the income of every individual a tax equal to the following......

I have consulted several dictionaries to learn the definition of insurance and this is the standard one provided:

Insurance: The act, business, or system of insuring. The state of being insured. A means of being insured. Coverage by a contract binding a party to indemnify another against specific loss in return for premiums paid. As a side note, there has been much discussion about whether or not social security is a contract. I would refer you to the following document:

Analysis of the Social Security System, Hearings Before A Subcommittee of The Committee on Ways and Means, House of Representatives, Eighty-Third Congress, First Session on the Legal Status of OASI Benefits, November 27, 1953, Part Six. This highly interesting and enlightening document is about 100 pages but I guarantee you, it's well worth the read. Social security is not considered a contract, yet every dictionary definition of insurance says it's a contract.....Now I know how Alice In Wonderland felt.

Back to our discussion. Social security is a tax that goes into the general fund of the treasury and is not earmarked for any specific purpose as found in Helvering v. Davis 301 U.S. 619-646. Social Security is not an "entitlement" because people are paying a tax to receive a benefit. It is not an insurance program because there is no guarantee that anyone will ever receive any benefit from social security because like the medical benefits promised to our veterans, Congress can yank these "benefits" at anytime.

Additionally, there is a very interesting legal point regarding Chapter 21 called the Federal Insurance Contributions Act, Section 3102: Deduction of Tax From Wages

(a) Requirement. The tax imposed by section 3101 shall be collected by the employer of the taxpayer, by deciding the amount of the tax from the wages as and when paid....

Notice that the word insurance does not appear in the body of the written text. We jump from an insurance to a tax. The word "tax" appears within the sentence structure of the body of the law. This has legal import. Section 7806 of the IR Code explains it quite plainly:

IR Code 7806. Construction of Title

(a) Cross References. The cross references in this title to other portions of the title, or other

provisions of the law, where the word "see" is used, are made only for convenience and shall be given no legal effect.

(B) Arrangement and Classification. No inference, implication, or presumption of legislative construction shall be drawn or made by reason of the location or grouping of any particular section of provision or portion of this title, nor shall any table of contents, table of cross references, or similar outline, analysis, or descriptive matter relating to the contents of this title shall be given any legal effect.

Because the word "insurance" appears with the table of contents and the table of contents is "descriptive matter" used as an "outline," the word "insurance" has "no legal effect." In other words, no words in the table of contents have any force of law. The word which does have legal effect is "tax" because it is used within the body of the law itself; therefore, it has the full force of law. Legally, the word "insurance" does not apply, means nothing, to the chapter of the Code entitled "Federal Insurance Contributions Act."

SSA has a form numbered SS-5 that individuals use to apply to pay this tax. No where on this form does it state anyone is required under any law to apply. An individual fills out this form to pay a tax for a benefit they hope might be there at some future date. Sounds to me like an elephant skating on ice the thickness of a piece of paper.

More government lie-speak: "Other laws require people to have and use SSN's for specific purposes. For example, the Internal Revenue Code (26 U.S.C. 6109(a)) and applicable regulations (26 CFR 301.6109-1(d)) require an individual to get and use an SSN on tax documents......"

This would be a difficult thing to do since Mr. Mullen's letter above has stated that no one is required to have this number to either live or work in the U.S! Sec. 6109(a) of the IR Code is titled Identifying Numbers. At the bottom of this section, it states: "For purposes of this subsection, the identifying number of an individual (or his estate) shall be such individual's social security account number.

This particular section of the code would be impossible for anyone to comply with according to Mullen's letter of March 18, 1998. The IRS instructs individuals to obtain a TIN [Taxpayer's Identification Number] using a W-7 Form. However, as one can clearly see by examining this W-7 form, the small print states: For use by individuals who are not U.S. citizens, nationals or permanent residents. Ah! How many people have read that small print?

Most employers believe that they are required by law to force an employee to fill out a Voluntary Withholding Certificate. This little piece of paper needs a social security number and sets the rate of tax by the number of deductions you want taken from your paycheck. I have spoken with many employers who have not only a stark fear of the IRS, but they have done their duty by calling the IRS and asking them if demanding a Voluntary Withholding Certificate is illegal. Without exception, these employers have been told that they must force an employee to provide an SSN and fill out this voluntary withholding certificate. But what does Title 26 say?

Chapter 21 imposing the so-called Social Security (FICA) tax. These "tables and procedures" are authorized to be provided by the Secretary under Section 3402(p):

Section 3402(p). Authority for other voluntary withholding. The Secretary is authorized by regulations to provide for withholding- (1) from remuneration for services performed by an employee for the employee's employer which (without regard to this paragraph) does not constitute wages, and

(2) 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.

Note that the Secretary is authorized to provide for withholding by issuing tables, computational procedures and other instructional material on withholding that apply to only those who have voluntarily agreed to withholding. An agreement exists only when an individual who is hired voluntarily requests that money be deducted and withheld from his pay for payment of taxes and the one for whom he works completes the agreement by his voluntary act of collecting money as an unpaid tax collector for the government. Without the support of employers in this country to this strong-arming by the IRS, we wouldn't be in this mess and it's time employers stood up the the federal boys and just said, No!

The use of the words "the person making" and "the person receiving such other type of payment" related to non-Federal employers and employees who voluntarily "agree to such withholding". Federal regulation 26 CFR section 31.3402(p)(1) states:

Sub-Section 31.3402(p)- Voluntary withholding agreements. (T.D. 7096, filed 3-17-71; amended by TD 7577, filed 12-19-78).

(a) In general. An employee and his employer may enter into an agreement under section 3402(p) to provide for the withholding of income tax upon payments of amounts described in paragraph (b)(1) of Sub-Section 31.3401(a)-3, made after December 21, 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.

(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 3403(p) shall furnish his employer with Form W-4 (Employee's Withholding Allowance 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, if applicable, of qualified State individual income tax (see paragraph (d)(3)(i) of Sub-Section 301.6361-1 of this chapter (Regulations on Procedure and Administration)), and

(d)(iii) No request for withholding under section 3402(p) shall be effective as an agreement between an employer and employee until the employer accepts the request by commencing to withhold from the amounts with respect to which the request was made.

Note the wording in sub-sections (b)(1)(ii) and (iii) of this regulation: "...an employee who desiresto enter into an agreement" and "request for withholding", "desires withholding," all of which clearly and unambiguously show the voluntary nature of the entire withholding system. The significance of a Form W-4 "Employee's Withholding Allowance Certificate" is clearly explained in this regulation which states:

"The furnishing of such Form W-4 shall constitute a request for withholding."

The printed heading on the Form W-4 confirms the voluntary nature of withholding; it states "Employee's Withholding Allowance Certificate." If withholding were mandatory, why would the form be called an "Allowance" Certificate? Allowance, as defined in The American Heritage Dictionary, is defined as: The act of allowing, something given. It does not say something taken or mandatory. To "allow" means to "permit" - if the law required the withholding of tax from an individual's pay, no permission or request form would be needed.

To further illustrate my point about social security numbers and employment, I refer to Handbook for Employers M-274 (Rev. 11/21/91)N. This handbook carries a return address of the Internal Revenue Service, WADC-9999, Rancho Cordova, California, 95743-9999, Official Business, IRS Bulk Rate. However, it states that if anyone has any questions regarding the contents of the booklet, do not contact the IRS but rather your local INS office. How odd.

On page 20 and 21 of this booklet, displayed in the exhibit, is Part Eight: Acceptable Documents for Verifying Employment Eligibility. You will discover that to establish employment eligibility, a person must present a document from List C, such as a Social Security Card, a United States birth certificate, or one of the other documents listed. If having an SSN were mandatory for purposes of employment, individuals would not be given a choice of which documents they choose to submit for eligibility - the social security number being only one in a long list of acceptable documents.

There are three sections of the IR Code which apply to not giving your social security number:

26 U.S.C. Sec. 6109(a)(3)

26 U.S.C. Sec. 6721(a)(2)(b), Sec. 6721 (c)(1)(b)

26 U.S.C. Sec. 6724(a)

These passages came about, for the most part, as a result of the passage of Public Law 101-239 on December 19, 1989 (The Omnibus Budget Restoration Act). According to the IR Code, the employer is to request (Sec. 6109(a)(3)) the employee to provide the employer with his SSN or TIN. If having an SSN were mandatory, the code would not request such an action by an employer, the language would read the employer must obtain or other clear language. The IRS regulation interpreting Section 6109 provides:

"If he [the employer] does not know the taxpayer identifying number of the other person, he shall request such number of the other person. A request should state that the identifying number is required to be furnished under the authority of law. When the person filing the return, statement, or other document does not know the number of the other person, and has complied with the request provision of this paragraph, he shall sign an affidavit on the transmittal document forwarding such returns, statements, or other documents to the Internal Revenue Service so stating. Teas. Reg. Sec. 301.6109(c)."
The applicable IRS statute and regulation place a duty on the employer to request a taxpayer identifying number from the employee. If a document must be filed and the employer has been unable to obtain the number but has made the request, then the employer need only include an affidavit stating that the request was made.

Q: As an employer, can I be fined by the IRS for not forcing an employee to provide a SSN and fill out a Voluntary Withholding Allowance Certificate?

A: If the employee refuses to provide the number and the employer fails to include that information, (the employee's refusal), in his return, then a penalty is normally imposed (Sec. 6721(a)(2)(b)). The Treasury Regulation interpreting the statute states:

Under Section 301.6109-1(c) a payor is required to request the identifying number of the payee. If after such a request has been made, the payee does not furnish the payor with his identifying number, the penalty shall not be assessed against the payor. Treas. Reg. Sec. 310.6676-(1).

If there is just one or two returns with the SSN left out then Sec. 6721(c)(1)(B) applies. The penalty provided in Sec. 6721(a) is only $50.00 per incomplete return, and that is considered to be "de- minimis failure" (Sec. 6721(c)). Black's Law Dictionary definition of de-minimis doctrine is: "The law does not care for, or take notice of, very small or trifling matters. The law does not concern itself about trifles."

The law permits the employer to simply ask for the SSN, and if it is refused, to simply notify the IRS by affidavit, that it had requested the number. The IR Code provides for a waiver of any penalty upon a mere asking for the number and having it refused. The IRS is not exempt from the law in that the provisions of the IR Code only make it appear to require that which is voluntary, but as stated above, other provisions of the IR Code explain that an affidavit will resolve the apparent conflict.

If one reads this exact language from SSA and IRS, you can only conclude the following:

    *  No one is required by any law to obtain a social security number for any purpose.

    *  No one can be denied employment because they refuse to provide this number.

    *  Employers may voluntarily enter into an agreement with an employee for voluntary withholding and this agreement may be terminated at the request of the employee.

    *  The employer shall not be penalized if the employee chooses not to enter into an agreement to provide this identifying number.

Now for the reality check: 99.9% of employers in this country have no idea or understanding of the material above. Most will fire or refuse to hire an individual who asserts his/her rights on this issue. The IRS continues to threaten employers across this country with bluff that employers cave into without ever researching the law for themselves. Is there an equitable solution for both employer and employee?

The answer is a clear, yes: Employers throughout this country who still believe in personal freedom and privacy must stand up to the IRS and defend their employees rights. Employers: Your employees are the ones who make your business a success. They insure your livelihood continues in a prosperous fashion because they do the work that brings in the profit. You owe it to them, to yourself and to our nation to stand up and fight the beast.

I would like to make comment about Mr. Mullen's bald-faced lie that the Supreme Court has already addressed mandatory individual participation. When Congress adopted the Social Security Act in 1935, the Supreme Court had already held in Railroad Retirement Board v. Alton R. Co., 295 U.S. 330, 368, 55 S.Ct. 758, 771 (1935). that Congress had no authority to establish a retirement scheme through its most tremendous power, its control over interstate commerce:

"The catalogue of means and actions which might be imposed upon an employer in any business, tending to the satisfaction and comfort of his employees, seems endless. Provision for free medical

attendance and nursing, for clothing, for food, for housing, for the education of children, and a hundred other matters might with equal propriety be proposed as tending to relieve the employee of mental strain and worry. Can it be fairly said that the power of Congress to regulate interstate commerce extends to the prescription of any or all of these things? Is it not apparent that they are really and essentially solely to the social welfare of the workers, and therefore remote from any regulation of commerce as such? We think the answer is plain. These matters obviously lie outside the orbit of congressional power."

There have been several other cases on this issue, i.e. In Steward Machine Co. V. Davis, 301 U.S. 548, 57 S.Ct. 833 (1937), an employer challenged the unemployment tax imposed upon it and the Court held that such tax was an excise which Congress could impose. In reference to the contention that the subject matter of the act was properly within the historical field reserved to the states, the Court held that Congress could enact legislation to aid the states in an area of great concern. The Court placed considerable emphasis upon the fact that the states were reluctant to adopt unemployment acts because such taxes created differentials between states which had such legislation and those which did not. By creating a national unemployment act, this difference was eliminated and the court claimed a great benefit to the American people resulted. In any event, the Court found nothing constitutionally objectionable to the act as to the issues which were raised - a very important legal point overlooked by government suits who respond to inquiries and who have a vested interest in seeing the system continue: their civil service paycheck.

In Helvering v. Davis, which I referred to earlier, the same reasoning was used to uphold the retirement features of the act. The importance in these two cases upholding the Social Security Act concerned the issues which these cases didn't raise:neither of those cases addressed the issue of whether or not anyone is forced by law to join the Social Security taxing program. The reason this issue was not raised is because there is no such requirement, period.

The fact is, this issue needs to be raised in court and the Wallace Institute would like to do just that if we could raise the necessary funds to see a court battle through to its end. The state legislatures throughout this country are forcing their citizenry to volunteer into a federal program to receive a state benefit or privilege, i.e. a driver's license and medical treatment at facilities under their State University system, even though their health insurance provider pays the tab.

This injustice against Americans is an outrage and needs to be challenged in court. We need employers across this country to start standing up and fighting to uphold the law as it's written instead of just caving in to whatever some flunky from the IRS or SSA tells them on the phone. We would do well to remember these words: "One man with courage makes a majority." Andy Jackson

Court battles take a lot of money and only by pooling our resources and giving the Wallace Institute a chance to fight these battles, are we ever going to get to the heart of these matters. The social security number is not only abused by every agency at every level of government, it has spread to the private sector like a cancer. When Americans decide that enough is enough, I hope they will consider becoming a monthly sponsor of the Wallace Institute and give us the financial tools to continue the fight in a court of law.

Devvy's web site is: www.devvy.com and information on both the Wallace Institute and Larry Becraft's excellent Dixieland Law Journal can be found on her site. Legal accuracy of this article has been verified by Larry Becraft, Attorney at Law, Huntsville, Alabama