McFarlane Law

A Tax Law Firm - 480.991.0032

Do You Have Employment and Payroll Tax Issues?

Employment & Payroll Tax Liability and the Trust Fund Recovery Penalty – not an easy workout!

Sometimes small-business owners face a difficult choice: pay employment taxes or use the money to keep the doors open. Unfortunately, despite your best intentions to get caught up on payroll taxes, a difficult economy may make that impossible. This can lead to significant tax debt that threatens your business and can even turn into a personal liability against you and your spouse.

As a business owner with W-2 employees, you are required to withhold employment taxes from your employees' wages. S whether you use a payroll processing company or do payroll reporting yourself, if you fail to pay the employment taxes you have withheld from your employees’ wages to the government, and the taxes are left unpaid after notice and demand, the IRS can assess you personally for the taxes due from the business. This is called the Trust Fund Recovery Penalty (TFRP), or the "100 Percent Penalty." It effectively allows the IRS to take tax collection action against your personal assets (including liens, levies, garnishment of spouse's wages, seizure of assets, etc. from you personally, even though the business owes the debt and it is a separate entity). The ADOR can also assert personal liability for a business payroll tax liability, but they need to institute a court proceeding and obtain a judgment prior to collecting against the owners, officers, or other such “responsible persons.”

Comfort Level Tip: If you receive a notice or letter or business card on your door, DO NOT IGNORE the communication! Contact Stephen McFarlane for a free consultation and analysis of that communication as there are time limits and procedures to meet or you lose objectio9n or appeal rights. See our blog, “I received a Notice from the IRS!! What do I do now?!?” [LINK] And remember, once your business tax issues are hung as laundry on the neighborhood line, you will receive phone calls from the unscrupulous marketing outfits claiming to “resolve your tax issues.” Often they pretend to be the IRS! The IRS does not contact you by phone or email. If you receive harassing calls or emails, hand up and call McFarlane at 480.991.0032.

More … Any owner, officer, or anyone with signature authority on checks will become personally liable as a "responsible person." I have had to defend office managers who might have signed a payroll check in the owner’s absence; or a quiet investor/owner who has had no interaction with the business at all. If a “responsible person” is found to have “willfully failed to turn over the taxes,” (and these are all legal terms with their own strange definitions and interpretations), that person will be assessed the TFRP. If assessed the TFRP, the taxpayer will be held "jointly and severally" liable for the total amount of taxes due — meaning that the IRS can collect 100 percent of the tax liability from any responsible person who has been assessed the TFRP. The IRS will collect their taxes and let the parties fight out whom will be liable to whom.

If a Revenue Officer is proposing to assess the TFRP against you, it is important to immediately contact our employment tax lawyers to assess your case as time is of the essence. If you miss your appeal deadline, you forego your ability to argue your case administratively with the Office of Appeals.

At McFARLANE LAW, PLC, in Scottsdale, Arizona, our employment and payroll tax attorneys have extensive experience analyzing your facts to provide a clear level of liability, and then provide options to resolve the matter once and for-all time. For over 25 years, Stephen McFarlane has helped owners and officers of small and medium-sized businesses deal with employment & payroll tax issues, and has successfully

obtained relief for business owners, officers, and other "responsible persons" who have potential trust fund recovery penalty problems. If tax authorities have begun collection actions against your business (or you personally), our employment and payroll tax attorneys can help you seek relief while negotiating a payment plan with the tax authorities.

We offer a free initial consultation to discuss your case and map out a strategic workout for your case.

Please call Arizona and Washington Licensed Attorney, Stephen McFarlane, MBA, JD, LLM (Tax) at 480.991.0032. He knows tax law!

What is the difference between a proposed asseessment and an assessment and why does it matter?

Reduction or Elimination of Penalties -when can I request a reduction and what is the effect if the IRS or ADOR has only proposed assessment vs. after an assessment has been made?

An “assessment” is the entry of an unpaid tax liability on the books of the IRS. Before assessment, the liability (be it tax, penalty, interest) is only “proposed.” What if the tax, penalty and interest is not yet assessed and you wish to object to the proposed assessment? What if the tax, penalty and interest has been assessed and you wish to remove or reduce that assessment? The two matters are treated differently by the IRS.

Before you are assessed tax, penalty and interest, a taxpayer is given the adjustments proposed by the revenue agent (exam function). The taxpayer is allowed the opportunity to object or protest the proposed assessment of tax, penalty, and interest. With the IRS, the examining revenue agent will issue either a 30-Day Letter (giving the taxpayer 30 days to furnish the revenue agent further information and documents), or issue a statutory notice of deficiency (IRS-known as a “SNOD” or a “90-Day Letter” in IRS parlance). This gives the taxpayer either 30 or 90 days to object to the revenue agent’s findings and present more evidence, or file an appeal (with either the Office of Appeals (30-Day Letter) or US Tax Court (90-Day Letter)). The ADOR has a similar procedures and issues a Notice of Proposed Assessment (an “NPA” or “30-Day Letter” in ADOR parlance) prior to their Notice of Assessment (whoops! Too late to object to the revenue agent).

As you can see, the request procedures are more complex than merely asking the IRS or ADOR agent or officer to remove or reduce the penalty. They also are time sensitive and a taxpayer can lose their rights to object very easily. Understand that collection/”revenue officers” are commissioned with collecting the tax (“revenue agents” are an exam function-they audit). Revenue Officers cannot and will not reduce the amount they are told to collect – they do not have that authority. However, there are special separate units that review requests and make determinations that are reviewable by an administrative appeals process. Because the procedures are somewhat complex, and the case important to the argument, it is essential to engage an attorney who has done dozens of these cases. That attorney is Stephen McFarlane of McFARLANE LAW, PLC, Arizona’s premier tax litigation and tax problem-solving law firm. Do you owe taxes? Call McFARLANE LAW, PLC@ 480.991.0032.

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