Oswald v. AMERICAN NATIONAL CAN COMPANY , 194 Ga. App. 882 ( 1990 )

194 Ga. App. 882 (1990) 392 S.E.2d 26

OSWALD
v.
AMERICAN NATIONAL CAN COMPANY.

A89A2176.

Court of Appeals of Georgia.

Decided March 2, 1990. Rehearing Denied March 15, 1990.

S. Robert Hahn, Jr., for appellant.

Powell, Goldstein, Frazer & Murphy, Dara L. Dehaven, E. A. Simpson, Jr., Bret J. Pangborn, Frederick A. Stuart, for appellee.

CARLEY, Chief Judge.

Until February 28, 1987, appellant-plaintiff was employed by appellee-defendant. Although Federal law required that appellee furnish appellant a W-2 form by January 31, 1988, she did not receive such a form from appellee by that date. Alleging that appellee had willfully refused to provide the W-2 form to her in a timely manner, appellant filed suit. According to appellant's complaint, appellee's alleged willful refusal constituted "the violation of a legal duty owed to [her], which supports a tort action under the laws of the State of Georgia." Appellee answered appellant's complaint and subsequently moved for summary judgment. Appellant appeals from the trial court's grant of summary judgment in favor of appellee.

The only "duty" to provide a timely W-2 form to appellant is that which is imposed upon appellee by the Federal Internal Revenue Code. The willful breach of that duty can result in criminal liability. 26 USCA §§ 6674; 7204. "[T]he violation of a penal statute does not automatically give rise to a civil cause of action on the part of one who is injured thereby." Sparks v. Thurmond, 171 Ga. App. 138, 142 (5) (319 SE2d 46) (1984). An employer's alleged willful breach of the penal provisions of the Federal Internal Revenue Code regarding the timely provision of a W-2 form will not support an employee's civil action for damages. Turner v. Unification Church, 473 FSupp. 367, 376 (19) (D. R.I. 1978), aff'd 602 F2d 458 (1st Cir. 1979). Accordingly, the trial court correctly granted summary judgment in favor of appellee.

Judgment affirmed. McMurray, P. J., and Beasley, J., concur.