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November 14, 1997

DOROTHY A. MAZUR, as Executrix of the Estate of Alois C. Mazur, Plaintiff, -vs- COMMISSIONER OF INTERNAL REVENUE, Defendant.

The opinion of the court was delivered by: ELFVIN


 In this civil action brought under 26 U.S.C. § 7422, the plaintiff seeks a refund of $ 3,296.52 in taxes paid pursuant to the Federal Insurance Contribution Act ("FICA") -- 26 U.S.C. § 3101 et seq. This Court has subject-matter jurisdiction and venue is proper. 28 U.S.C. §§ 1340, 1346(a)(1), 1396. Presently before this Court are cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

 The plaintiff is the executrix of the Estate of Alois C. Mazur. Mazur was an Associate Judge of the City Court of Buffalo from 1965 until his retirement on September 9, 1991. See Joint Stipulation of Facts, P1. He died July 30, 1993. Id. P2. Judge Mazur was one of several judges who had successfully sued the State of New York ("the State") challenging a pay disparity between judges in Buffalo and judges in Utica, N.Y. *fn1" As a result, Judge Mazur was awarded $ 43,091.81 representing back pay differentials for work performed between October 1, 1978 and September 9, 1991. Id. PP3-4, 6.

 During each of the years 1978 through 1991, Judge Mazur had paid the maximum FICA tax. Id. P5. The judgment awarded to Judge Mazur was paid in August 1992 -- during a year in which Judge Mazur had no other income which was subject to FICA taxation. Id. PP6-7, 9. The State withheld from such award FICA taxes of $ 3,296.52 pursuant to Internal Revenue Service ("Service") Revenue Ruling 89-35, id. P8, which Ruling states the Service's position that, when an award of back pay is made, FICA taxes attach and are imposed on the employee (and the employer) at the tax rates in effect in the year in which the award is paid.

 The plaintiff timely filed a claim with the Service for a refund of the entire amount withheld, which claim was denied by a Notice of Disallowance dated February 17, 1995. Id. P10. The Complaint in this action was filed February 13, 1997. An Answer was filed by the United States of America on April 11, 1997.

 Firstly, it is noted that the proper defendant in this action is the United States of America. See 26 U.S.C. § 7422(f)(1). When a party is incorrectly named as defendant in a federal tax refund action, the proper remedy is to amend the pleadings. 26 U.S.C. § 7422(f)(2). Accordingly, this Court will deem the Complaint amended to name the United States of America as defendant in place and stead of the Commissioner of Internal Revenue. See ibid.; Weisman v. I.R.S., 972 F. Supp. 185, 186 n.1 (S.D.N.Y. 1997). Turning to the merits, the defendant argues that FICA tax was properly imposed on the plaintiff's back pay award as wages n2 received in 1992 pursuant to the Internal Revenue Code ("the Code") and Department of Treasury regulations promulgated thereunder. See 26 U.S.C. §§ 3101, 3102, 3121; 26 C.F.R. §§ 31.3101-3, 31.3121(a)-2; see also Rev. Rul. 89-35; Rev. Rul. 55-203. The defendant reiterates the Service's position that FICA imposes a tax upon wages as they are actually received rather than when they are earned or when they ought to have been paid. The Code does not clearly address when FICA tax liability attaches to wages earned by an individual. However, the language of section 3101 supports the Service's position. The "Old-age, survivors, and disability insurance" tax rate is designated as follows: "In cases of wages The rate received during: shall be: 1984, 1985, 1986, or 1987 5.7 percent 1988 or 1989 6.06 percent 1990 or thereafter 6.2 percent."


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