SECTION 8. REASONABLE

EFFORTS

.01 Generally, if the employer has not repaid or reimbursed an employee, a refund for the employer share of the overpaid FICA taxes will not be allowed unless the employer has both secured the employee’s consent and included a claim for the refund of the employee share. However, these requirements do not apply to the extent that the taxes were not withheld from an employee or, after the employer makes reasonable efforts to repay or reimburse the employee or secure the employee’s consent, the employer cannot locate the employee or the employee will not provide consent. The employer can show that the employee will not provide the requested consent if the employee does not respond to the employer’s request for consent or if the employee provides a response that indicates that the employee does not authorize the employer to claim a refund of FICA taxes on his or her behalf.

.02 The employer will be deemed to have made reasonable efforts with respect to a request for consent if:

(1) The employer properly requests consent of the employee as provided in this revenue procedure;

(2) A request for consent sent electronically provides for an acknowledgement of receipt of the email message. The request must specifically ask the employee to acknowledge receipt of the request for consent ( e.g ., by clicking on a voting button (YES) or by sending a reply message to the employer). A read-receipt message is not sufficient;

(3) The employer retains: (a) the record of mailing the request for consent; (b) the record of emailing the request for consent (including any acknowledgement of receipt of the email message); (c) the record of personal delivery to the employee who does not furnish an employee consent; or (d) the employee’s response indicating that the employee was not authorizing the employer to claim a refund of FICA taxes on his or her behalf;

(4) In the event a mailing is undeliverable, the employer makes a good faith attempt to determine the employee’s current address and, if a new address is discovered, the employer delivers a request for consent in a paper format to the new address or delivers a request for consent by email or by personal delivery, giving the employee not less than 21 days from the date of the second request to reply; and

(5) In the event of an email delivery failure ( e.g., the employer is notified that the message the employer tried to send did not reach the employee because of a problem with the email address) or in the event that the employee does not acknowledge receipt of the email message, the employer mails a request for consent in a paper format to the employee’s last known address or provides a request for consent to the employee by personal delivery giving the employee not less than 21 days from the date of the second request to reply.