California Law Requires Employers to Withhold State Income and Disability Insurance Taxes

The Internal Revenue Code (IRC) requires employers to collect income and Federal Insurance Contributions Act (FICA) taxes by withholding them from wages paid to employees. (26 U.S.C. 3102(a), 3402(a)(1); Maxfield v. United States Postal Service (9th Cir. 1984) 752 F.2d 433, 434.) California law similarly requires employers to withhold state income and disability insurance taxes. (Unemp. Ins. Code, 13020, subd. (a)(1), 986.) An employer who fails to withhold such taxes may be held liable for those taxes plus penalties and interest. (26 U.S.C. 3102(b), 3403, 6651; Unemp. Ins. Code, 987, 1112, 1113, 1127, 13070.) The failure to withhold taxes also is punishable as a crime. (26 U.S.C. 7202 felony; Unemp. Ins. Code, 2118 misdemeanor.) In addition, even if the tax is later paid, an employer who fails to withhold is subject to liability for penalties and other statutory additions. (26 U.S.C. 3402(d); see Cheetham v. CSX Transportation (M.D.Fla., Feb. 13, 2012, No. 3:06-cv-704-PAM-TEM) 2012 WL 1424168, p. (Cheetham).) The IRC and the Unemployment Insurance Code define "wages" for income tax withholding purposes as "all remuneration ... for services performed by an employee for his or her employer." (26 U.S.C. 3401(a); Unemp. Ins. Code, 13009.) The IRC describes "wages" for FICA (Social Security and Medicare) withholding as "all remuneration for employment," and defines "employment" as "any service, of whatever nature, performed ... by an employee for the person employing him." (26 U.S.C. 3121(a), (b).) Given the similarity in the statutory definitions of "wages," they are interpreted in the same manner. (Rowan Cos. v. United States (1981) 452 U.S. 247, 257 68 L. Ed. 2d 814, 101 S. Ct. 2288 tax statutes favor consistent definition of wages for both FICA and income tax withholding purposes; see J. H. McKnight Ranch, Inc. v. Franchise Tax Bd. (2003) 110 Cal.App.4th 978, 984, fn. 1 2 Cal. Rptr. 3d 339.) When federal and state tax statutes are identical, federal decisions are particularly compelling in interpreting state tax law. (Estate of Darby (1949) 93 Cal.App.2d 96, 100 208 P.2d 689; Douglas v. State of California (1942) 48 Cal.App.2d 835, 838 120 P.2d 927.)