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Trust Fund Penalty – Payroll Taxes – Who Is Responsible?
With many businesses going bankrupt today, some owners and officials are completely unaware that the IRS can collect the taxes owed by the company from responsible corporate parties. This conversion from corporations to individuals is called the trust fund sanction. It falls under article 6672 of the Internal Revenue Code.
A trust fund recovery case begins with 941 unpaid payroll taxes by a company. After some time, the IRS computer hits 941 unpaid on business cases. These cases are always sent to the field for a trust fund recovery penalty review.
After a series of notices are sent to the company, the case eventually makes its way into the field where an IRS revenue officer is assigned the case. After the IRS passes the necessary clerical checks, a field visit is usually arranged to visit the taxpayer at his or her place of business. After the visit, the tax officer will usually request full payment of the tax or work out some sort of payment plan. In most of these cases the payment cannot be made in full to pay the tax owed by the IRS. In these situations, the tax officer typically decides that the best way to secure the government’s interest is to ensure that the corporate officers responsible for paying the tax are established with individual responsibility for paying these 941 taxes. This is called setting trust fund liability.
These ratings connect with individuals. Assessments are made as if you were to pay personal income tax. The section of the code that deals with this administrative procedure is section 6672. More than one person can be appointed responsible.
The revenue officer looks at a number of items to determine who is responsible. After 10 years on the job, the IRS agent doesn’t take long to figure this out. It is usually obvious who the responsible parties are. Below are some of the checklists used.
Step #1 – Find out who is responsible for following the money. That is, who signed checks and who benefited from profits. The IRS is looking for who controlled the money. The IRS can ask the company to cooperate by asking for checks to review the signatures. Or, the IRS can summon the bank directly to see who is on the bank’s signature papers and who signed the most business checks. This usually points them in the right direction.
Step #2 – Who signed the 941s, who is responsible for preparing and signing the tax forms? Anyone in the chain of events who had knowledge or authority can be held liable by the IRS. The fear of the IRS agent questioning company personnel can be very unnerving, and IRS agents on these types of cases are trained to get to the truth.
Step #3 – Who is really responsible? At the end of the day, someone is the decision maker. Who is he really? Find out who really controlled the company’s operations.
Step#4 – Who has the right to hire and fire? Whoever had this responsibility had a lot of influence in the company.
Step#5 – Who had the right to determine financial policy? In other words, who spoke to the bank? The bank knows the real officers of said corporation.
Step#6 – Who has the right to authorize all bills and pay other creditors? When you get to this point it starts to become really obvious who the officers in charge are.
Step#7 – Who had the right to open and close bank accounts? Only the real officers of the guild had this authority.
Step#8 – Who guaranteed or co-signed the loans? Only someone who had a real vested interest in the company would want to do that.
Step #9 – Who Authorized Payroll? While this can be delegated to anyone, usually the responsible person has an interest in this function.
Step #10 – Who could sign the corporate tax return? This is a real test of responsibility.
If the IRS doesn’t find out who is liable after this process, it will ask nearby businesses or the owner. They usually all date the same person. By the way, whoever signed the lease is usually a good choice. Another thing the IRS agent uses are business resolutions found at the bank. The IRS also uses a 4180 form which is an interview collection form that contains several pages of questions. Once done, the agent can easily make the determination.
As an ex-agent, everyone wants to blame the other person, a real one who did. It’s always someone else’s fault. A key tip for people who may be reading this is that if you’re in trouble or going that way, contact a professional to represent you. We at Fresh Start Tax have experience with these types of IRS cases. Another piece of advice is if you’re making tax payments, write on every check to the IRS, “money to be applied to trust fund only.” If you do, each payment will be applied to the trust fund fee and will not go towards penalties and interest. One final piece of advice, if you don’t like the tax officer’s findings, you can always bring your case to appeal.
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