We have a responsible person payroll tax story to tell.
You may know that I sardonically refer to this penalty as the
“big-boy” penalty. It applies when you have some authority and control over the
deposit of payroll withholding taxes but do not remit them to the IRS. The IRS
views this as theft, and they can be quite unforgiving. The penalty alone is
equal to 100% of the tax; in addition, the IRS will come after you personally,
if necessary.
You do not want this penalty – for any reason.
How do people get into this situation? In many – if not most
cases – it is because the business is failing. There isn’t enough cash, and it is
easier to “delay” paying the IRS rather than a vendor who has you on COD. You
wind up using the IRS as a bank. Now, you might be able to survive this predicament
if we were talking about personal or business income taxes. Introduce payroll –
and payroll withholding – and you have a different answer altogether.
Our story involves Christina Fitzpatrick (Christina). Her
husband made the decision to start a restaurant in Jacksonville with James Stamps
(Stamps). They would be equal partners, and Stamps would run the show.
Fitzpatrick would be the silent wallet.
They formed Dey Corp., Inc to hold the franchise. The
franchise was, of course, the restaurant itself.
Sure enough, shortly after formation and before opening, Stamps
was pulled to Puerto Rico for business. This left Fitzpatrick, who in turn
passed on some of the pre-opening duties to his wife, Christina.
Fortunately, Stamps got back in town before the place opened.
He hired a general manager, a chef and other employees. He then went off to
franchise training school. Meanwhile, the employees wanted to be paid, so Stamps
had Christina contact Paychex and engage their services. They would run the
payroll, cut checks and make the tax deposits.
OBSERVATION:
Let’s call this IRS point (1)
He also had Christina open a business bank account and
include herself as a signatory.
OBSERVATION:
IRS point (2) and (3)
Stamps and the general manager (Chislett) pretty much ran the
place. Whether he was in or out of town, Stamps was in daily contact with
Chislett. Chislett managed, hired and fired, oversaw purchases and so on. He
was also the main contact with Paychex.
Except that …
Paychex started off by delivering paychecks weekly to the
restaurant. There was a problem, though: the restaurant wasn’t open when they
went by. Paychex then starting going to Christina’s house. Chislett told her to
sign and drop-off the paychecks at the restaurant. Chislett could not do it
because it was his day off.
OBSERVATION:
IRS point (4) and (5).
You can anticipate how the story goes from here. The
restaurant lost money. Chislett was spending like a wild man, to the extent
that the vendors put him on COD. Somewhen in there Paychex drew on the bank account
and the check bounced. Paychex stopped making tax deposits for the restaurants
because – well, they were not going to make deposits with rubber checks.
By the way, neither Stamps nor Chislett bothered to tell the
Fitzpatricks that Paychex was no longer making tax deposits.
Sure enough, the IRS Revenue Officer (RO) showed up. She
clued the Fitzpatricks that the restaurant was over two years behind on tax
deposits.
Remember that the restaurant was short on cash. Who could the
IRS chase for its money in its stead? Let
me think ….
The RO decided Christina was a responsible person and
assessed big bucks (approximately $140,000) against her personally.
Off to Tax Court they went.
The Court introduces us to Christina.
·
She
spent her time taking care of her disabled son, who suffered from a rare
metabolic disorder. As a consequence, he had severe autism, cerebral palsy and
limited mobility. He needed assistance for many basic functions, such as eating
and going to the bathroom. He could not be left alone for any significant
amount of time.
·
Taking
care of him took its toll on her. She developed spinal stenosis from constantly
having to lift him. She herself took regular injections and epidurals.
·
She
truly did not have a ton of time to put into her husband’s money-losing
restaurant. At start-up she had a flurry of sorts, but after that she visited
maybe once a week, and that for less than an hour.
·
She
could not hire or fire. She was not the bookkeeper or accountant. She did not
see the bank statements.
She did, unfortunately, sign a few of the checks.
The IRS looks very closely at who has signatory authority on
the bank account. As far as they are concerned, one could write a check to them
as easily as a check to a vendor. Christina appears to be behind the eight
ball.
The Court noted that the IRS was relying heavily on the testimony
of Stamps and Chislett.
The Court did not like them:
Petitioner’s cross-examination of Mr. Stamps and Mr. Chislett revealed that their testimony was unreliable and unbelievable."
That is Court-speak to say they lied.
Mr. Stamps evaded many of the petitioner’s questions during cross-examination by repeatedly responding ‘I don’t remember.’”
Sounds like a possible presidential run in there for Stamps.
The Court was not amused with the IRS Revenue Officer either:
However, we believe that RO Wells did not conduct a thorough investigation. For instance, RO Wells made her determination before she received and reviewed the relevant bank records. She also failed to interview (or summon) Mr. Stamps, the president of the corporation.”
The IRS is supposed to interview all the corporate officers.
Sounds like this RO did not.
The Court continued:
We are in fact puzzled that Mr. Stamps, the president of the corporation and a hands-on owner, an Mr. Chislett, the day-to-day manager, successfully evaded in the administrative phase any personal liability for these TFRPs.”
My, that is curious, considering they RAN the place. The use
of the word “evaded” clarifies what the Court thought of these two.
But there is more required to big-boy pants than just signing
a check. The Court reminded the IRS that a responsible person must have some
control:
The inquiry must focus on actual authority to control, not on trivial duties.”
Here is the hammer:
Notwithstanding petitioner’s signatory authority and her spousal relationship to one of the corporation’s owners, the substance of petitioner’s position was largely ministerial and she lacked actual authority.”
The Court liked Christina. The Court did not like Stamps and
Chislett. They especially did not like the IRS wasting their time. She was a
responsible person they way I am a deep-sea diver because I have previously
been on a boat.
The Court dismissed the case.
But we see several points about this penalty:
(1) The IRS will chase you like Khan
chased Kirk.
(2) Note that the IRS did not chase
Stamps or Chislett. This tells me those two had no money, and the IRS was
chasing the wallet.
(3) Following on the heels of (2), do not
count on the IRS being “fair.” They IRS can cull one person from the herd and
assess the penalty in full. There is no requirement to assess everyone involved
or keep the liability proportional among the responsible parties.
We have a success story, but look at the facts that it took.
