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Who is held responsible for the unpaid payroll taxes of a non-profit corporation?

Oklahoma City, OK |

Is it the check signer and the board or just the officers?

Attorney Answers 4


The IRS calls certain people "Responsible Parties". That means that they can be assessed with a civil penalty which is the same thing as the company's Trust Fund Penalty except one is against the company and one against the individual. The IRS uses a few items but they are not cast in stone like signature card for a checking account, officer or employee or director who has signed returns or has the responsibility for paying payroll. Sometimes it winds up being some unfortunate and unknowing secretary in the office. So the answer to your question is all 3 of those you mentioned could be liable. Get a tax lawyer for this. Avoid J K Harris however. Oops, did I say that out loud.

[Note: Consistent with Avvo policy, this communication is intended as general information and not specific legal advice, and this communication does not create an attorney-client relationship.]

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The non-profit status of the employer is irrelevant. The portion of payroll taxes contributed by the employer and taxes withheld from employees are required to be deposited. These funds have an elevated status and are so-called payroll trust fund taxes.

When the employer fails to deposit these monies, the IRS will seek to hold all persons with responsibility for the payroll personally liable for the payment of the trust fund monies. This includes persons authorized to sign payroll checks and persons who have the authority to make the payroll deposits or to cause the deposits to be made. Although purely adminstrative acts by a clerk probably will not result in personal liability, there will still be a considerable hassle proving the point.

Please keep in mind that there are many variables that could be applied to the brief facts you have given. The information offered here is general in nature and is not a legal opinion nor is it specific tax advice.

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The excellent answers of the prior attorneys give you good advise. The only thing to add is that in these matters the ultimate determination as to who is liable usually rests with the person or persons who made the decision to pay creditors rather than the IRS. However, those persons who are officers, directors and check signers may have to prove that they did not make such a decision. This can be quite costly with attorney fees, and related litigation costs. Like the other attorneys stated, you need to get a experienced tax litigation attorney.

Hope this helps.

Mr. Fromm is licensed to practice law in PA. The response herein is not legal advice and does not create an attorney/ client relationship. The response is only in the form of legal education and is intended to only provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that if known could significantly change the reply or make such reply unsuitable. Mr. Fromm strongly advises the questioner to confer with an attorney in their state in order to ensure proper advice is received.
By using this site you understand and agree that there is no attorney client relationship or confidentiality between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your jurisdiction and with whom you have an attorney client relationship. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question or omitted from the question.
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You should retain experienced tax counsel, particularly counsel who has handled non-profit entities, to assist with this. As the other attorneys have said correctly, this is a question of who is a "responsible party" and there are several factors that are considered on this point by the IRS. If any person does not believe that he/she is a "responsible party", they will need their personal counsel to dispute this with the IRS.

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