Taxation – Income Withholding – Labor & Employment – Civil Practice – Service of Process – ‘Nail Mail’

Under 26 U.S.C. § 3403, an employer cannot be made liable for failing to honor an employee’s W-4 form when it has been directed to deduct and withhold taxes by the Internal Revenue Service. Furthermore, a Revenue Ruling has rejected plaintiff’s preposterous argument that the 26 U.S.C. § 3401(c) definition of “employee” does not include privately employed wage earners.

The court accepts the magistrate judge’s recommendations and grants defendants’ motions to dismiss.

Although New York permits “nail mail” substitute service of process, and although the Schenectady County Office of the Sheriff affixed a copy of plaintiff’s summons and complaint to the defendant-employer’s door in Schenectady, New York, nothing in the record demonstrates that plaintiff (1) attempted personal service on the employer before the summons and complaint were affixed to its door or (2) mailed the summons and complaint afterwards. Thus, even if nail mail service on the employer might have been proper, plaintiff’s failure to abide by the dictates of the “nail mail” rule is fatal to any claim that he properly served the employer by that means.

Boggs v. Logic Technology, Inc. (Lawyers Weekly No. 002-099-18, 9 pp.) (Mary Geiger Lewis, J.) 3:17-cv-02166; Richard Boggs, pro se; William Floyd III and John Douglas Barnett for defendants. D.S.C.