This is a very complicated issue, probably not a yes or no answer; nor a who is completely right or wrong. Look to the IRS manual, Part 4, Chapter 72, "Employee Plans Technical Guidelines" for guidance. You can find it on the IRS website. If you all cannot reach an agreement, this issue will likely have to be determined by the judge and no one ends up satisfied. Other issues are the yearly filing status: how were taxes filed? Could be issue of erroneous tax filing, etc.
Answered on Jul 07th, 2014 at 5:03 AM