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With membership interest in a LLC, California, and two other members, Who is responsible for filing the tax return? We did not

San Diego, CA |
Filed under: Debt Tax return Tax law

yet file our return from 3 years ago, only out of laziness and we know this is no excuse. We want to file, immediately, but now I am worried about any liability. Of the three officer
positions - President, Secretary, and Treasurer, which would be held accountable if no tax matters member were named in the articles of organization?

Attorney Answers 3


Tax matters partner is the IRS focal point for communication. The lack of a tax matters partner or the presence of a tax matters partner does not affect liability. You need not have one. All three of you could communicate with irs simultaneously. (all 3 sign the same communication)

Curt Harrington Patent & Tax Law Attorney Certified Tax Specialist by the California Board of Legal Specialization PATENTAX.COM This communication is general information and not legal advice, and does not create an attorney-client relationship. This communication should not be relied upon as any type of legal advice. Please note that no attorney-client relationship exists between the sender and the recipient of this message in the absence of either (1) a signed fee contract and (2) remission of an agreed-upon retainer. Absent such an agreement and retainer, I am not engaged by you as an attorney, nor is any other member of my law firm.

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You need to read your operating agreement to determine who, as among the three of you, is responsbile. However, as between the three of you and the IRS, the person responsible is the "tax matters partner."

Under IRC Section 6321 a "tax matters partner" is to be one of the general partners. Since an LLC has no GP, the IRS issued regulations relating to the designation or selection of a TMP for LLCs classified as partnerships. A "member-manager" of an LLC is treated as a GP for purposes of determining the T

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If your agreement does not set out who would be responsible, or designate a tax matters member, then it is most likely that each of you will be held jointly accountable.
Hire an accountant and get your returns filed immediately.
The IRS does not care who they get their money from, just so long as they get it.
The FTB is even more aggressive than the IRS, so be sure you file your CA taxes also.

Both agencies will work with you on interest, penalties and payment plans, but depending on the amount, you might be wise to consult with a tax attorney first.

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