Is Federal Unemployment Tax "Divisible?"

For purposes of filing a refund suit in U.S. District Court, although I understand that Form 941 employment taxes are considered "divisible" taxes under the Flora case such that the taxpaying paying the compensation wanting to ultimately file a refund suit need only pay the Form 941 taxes attributable to one (1) payee (purported employee) per quarterly tax period to start the process, is the unemployment tax due on Form 940 also a divisible tax such that only a portion of the total Form 940 unemployment tax for the year need be paid for one (1) payee (purported employee)?

No. It is all paid by the employer. It is not a Trust Fund liability withheld by the employer from the employee.

I disagree with skassel. Because the employer’s liability for FUTA tax can be traced to an amount for each worker, it is a “divisible” tax. See Cencast Services L.P. v. U.S., 94 Fed.Cl. 425 (2010), affd. 729 F.3d 1352 (Fed. Cir. 2013); Bruecher Foundation Services v. U.S., 383 Fed.Appx. 381 (5th Cir. 2010).

Thanks for the feedback!

Assuming the Form 940 FUTA tax is divisible under Flora case, must the divisible payment from the Taxpayer/Payor be specifically designated to one Worker/Payee?

For example, if the John Doe is the Worker/Payee that received the lowest compensation payment from Taxpayer/Payor in 2017 with Form 940 FUTA tax attributable to Mr. Doe's payments being $500, must the divisible payment expressly be designated to Mr. Doe (e.g., "Enclosed is $500 payment covering 2017 Form 940 FUTA tax related to John Doe.")?

Or, may the divisible tax payment be designated to a hypothetical Worker/Payee of Taxpayer/Payor (e.g., "Enclosed is $500 payment covering 2017 Form 940 FUTA tax related to one hypothetical Worker/Payee of Taxpayer/Payor.")?

The employer must prove that the payment is the assessed tax for at least one employee. I don’t think that the name of the employee must be provided, but the employer should be prepared to provide evidence of this. See discussion of this issue in Procedurally Taxing:

https://procedurallytaxing.com/refund-suits-divisible-taxes-and-flora-when-is-a-representative-payment-representative-enough-part-2/