Another shocker

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A few days letter the bank records came in and Ben and the accountant prepared all of the back tax returns that had not been filed for employment, income, sales and unemployment taxes. Ben had no money in the business at that point to pay the taxes, so he just filed the returns without payment. The total due without penalties and interest was $50,000 to IRS, $50,000 to the state for sales taxes and unemployment taxes, $10,000 for state withholding taxes, and $10,000 for county taxes.

A few weeks later, Mr. Sorbe returned to the business and asked to see Ben. Ben came out wiping his hands on his apron. “What can I do for you, Sir”. The agent then informed Ben that he needed to interview Ben to see if he was a responsible party under the Internal Revenue Code Section 6672. If he was, then Ben would be responsible for the taxes. The questionnaire asked a ton of questions and Ben answered that he didn’t know the taxes were owing and that his partner handled the finances, but he was generally aware that these taxes needed to be filed and that he signed checks occasionally and hired and fired personnel and negotiated their wages. At the close of the interview Mr. Sorbe asked Ben to check his answers and sign the form, which Ben did.

A few weeks later, Ben personally received a bill from the IRS for $33,000 plus interest of $10,000 for a total of $43,000. Ben was aghast. He called Sorbe, “what is the meaning of this bill? he asked. “Its for the trust fund monies that you diverted from the IRS that should have gone to pay for your employees taxes. You’re responsible personally for that”, the agent replied matter of factly. Ben let fly a torrent of expletives and hung up. That afternoon Ben called his lawyer. “How come the IRS is now hitting me personally. I thought that when I got incorporated that I wouldn’t have any liabilities to creditors, what’s going on?” The lawyer cleared his throat, “well that’s not entirely true. You are liable to the Federal government and the states personally for trust fund taxes that are not paid to them such as withholding taxes, sales taxes, and corporate income taxes to some states. And its worse, those taxes are not dischargeable in bankruptcy, so they stay with you for at least 10 years” “You mean to say, that I’m personally liable for $100,000 in taxes to the states and feds. I haven’t got that kind of money?” “I think you should see a tax specialist who can advise you on this”.

Bankruptcy

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The next day, the bank called. “Mr. Barnacle, the Internal Revenue Service has levied on your bank account, so we are going to be dishonoring all checks that come in after today.” Ben picked up the phone and called the agent and got a recording that the agent was out of the office. “Probably to levy on my money”, sputtered Ben. Ben then picked up the telephone and called his lawyer. Barney Scrupples. “Barney, I need your help, the IRS is levying on my assets, they say we owe employment taxes, and at this point, I’m sure that we probably owe sales taxes, income taxes, county taxes, and who knows what else.” “Calm down, Ben, can you come to my office this afternoon?” “Yes”, said Ben. “Bring a list of your creditors, you know the people you owe money to, with you”, Barney replied.

That afternoon, Ben met with Barney and he suggested that Ben speak with his Chapter 11 Bankruptcy partner, Bob Ramino. Bob explained to Ben what to expect in Chapter 11 and that it doesn’t make debts go away, but buys you time to move forward with your business while you try and come up with a plan to work out your debts. Sooner or later the IRS would have to be paid out of the business, just not that day. Ben gave the attorney a list of creditors and the cash he had in the register at the business to cover the retainer and some of his own money as well.

Later that afternoon, Cakes, Inc. was officially in Chapter 11 with still running the business. The lawyer sent a copy of the filing as a matter of course to Mr. Sorbe at the IRS as well as to the District Director and to the bank. Now, Cakes could operate without hassles as long as it followed the rules and Ben sat down with an accountant to be sure he stayed current in the future on his employment tax filings.

Where O where did my partner go?

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Several hours later, Sam returned and Ben talked to him. “Sam, an IRS agent showed up asking about our withholding taxes and said we haven’t been paying them. I thought all our debts were up to date”. “Must be a computer error”, Sam responded. “I’ll call the guy back, tomorrow after I pull all the records.”

The next day, Sam did not show up for work, but had called in sick. Ben dutifully called the agent to report that Sam was out sick today and would call him upon his return and shared that Sam thought there must be some mistake. “Have him call me soon, so I don’t have to start collection action”. Sam called in for the next few days sounding ill (and no one wants a sick person around food) and Ben kept calling the agent. This went on for about four days. Then, Sam didn’t call one day. Ben called Sam, and the answering machine picked up. “Where are you, Sam? Call me as soon as you get this message.” No call was ever returned. Ben went by Sam’s house that night and found the house empty and no one around. A neighbor saw Ben and came over and said, “Sorry to see Sam leave, he was such a great neighbor”. Ben was dumbstruck.

The next day Ben called the Agent. “My partner has disappeared, I fear he stole some of our money instead of paying you.” “Well, you better get to the bottom of this and soon, or we’ll have to shut down your store”, the agent said. “How far behind are we?” Ben asked. “About two years”, the agent said.

That afternoon, Ben went into the small office looking for the check register and the bank statements, they were gone. He then went to the bank. “May I help you?” the bank officer asked. “Sure, my name is Ben Barnacle, I am an owner of Cakes, Inc., and I need to see a manager or something.” After a few minutes, the branch manager came out and Ben explained his plight. The manager frowned and then said, “Let’s get duplicates of all those bank statements and cancelled checks, we’ll have to charge you to research that”. “No problem”, said Ben, “I was afraid it was all hopeless.” “It’ll probably take abou t a week to get these to you”, the manager said.

Ben called the Agent back and relayed the missing books and records and told him that he had ordered the bank statements and hoped to get them in about a week. The Agent casually asked him what bank he used, and Ben said, “The Big Huge National Bank on First Street”. Ben figured that by cooperating with the agent he was buying good will. The agent wrote the name of the bank on a piece of paper and stuck it in the file.

My Partner Is a Crook – Meet Ben

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MY PARTNER IS A CROOK.

Ben Barnacle owned Ben’s Bakery along with Sam Shademan. Ben was the operations guy. He was known as the Wedding Cake Artist of Bellaire. The company was Cakes, Incorporated. His cakes were so tasty that people from surrounding areas came to buy his cakes for birthdays, holidays, and of course weddings. So many in fact that Ben was unable to keep up with all the cooking. Sam was the bookkeeper and in charge of the finances, but Ben could and would write checks to pay for COD purchases, deliveries, and if Sam was out of town, other checks that Sam would leave for him. The business grew and Ben hired people to help man the storefront, make deliveries and to help Ben with the baking.

As the years went by they needed to expand and were able to lease more space in the same shopping center. Their business appeared to be booming. The landlord seemed happy, the employees were getting a decent wage and Ben and Sam were enjoying a nice middle class lifestyle. Ben wondered why Sam seemed to afford things that Ben couldn’t like a late model sports car and a country club membership. But Ben figured that Sam just had different priorities for his money, or was going into debt, not a huge issue.

One day, an unsmiling man came walking into the store, he produced a badge and ID card showing his name was Maximillian Sorbe, Revenue Agent for the Internal Revenue Service. “May I see the owner, please”, he asked the cheerful young person behind the counter. “Mr. Barnacle, there’s a man from the IRS to see you”. Ben came out wiping his hands on his apron. “May I help you,” Ben asked. The agent showed Barnacle his badge again and started into his script. “I’m here to find out why your company has fallen behind on paying your employment taxes”. Ben looked perplexed. “What do you mean by employment taxes?” The agent, stared at him for a second, “Don’t give me that, I know for a fact you’ve signed employment tax returns for the company”.

Ben’s blank expression indicated that he was totally clueless as to what the agent was talking about. Ben then said, “Perhaps you need to talk to my business partner, Mr. Shademan. He is the treasurer and could answer your questions, better than I”. The agent continued, “Is he in?”

Ben responded, “let me check” and he went into the cramped back office of the business. He looked no Sam there, so he asked one of the employees, “have you seen, Sam?” “He just went out the back saying he had to run some errands”, one of flour covered workers exclaimed. Ben returned to the front of the store, “you just missed him. Can he call you to set up a meeting?” “Sure”, answered the agent, “here’s my card. Have him call me in the next 24 hours, please”.

100% Penalty

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I am going to take a break from 2010 and Estate Tax Stories and devote my next tale to the 100% penalty under Section 6672 of the Internal Revenue Code of 1986. A similar penalty is also present in almost every state tax statute. Usually a corporation affords its owners, employees, and officers complete immunity for corporate debts and acts. However, once the Federal Government started having employers withhold taxes at the source and State Governments started collecting taxes on sales and also having income taxes withheld, they noticed that corporations would simply not pay the taxes and then go bankrupt leaving everyone holding the bag but the officers and directors of the Corporation who diverted the funds. So they put in statutes which hold personally responsible employees, officers and directors responsible for INTENTIONALLY failing to pay over withholding taxes. The key word is of course intentionally. In this case ignorance of the law or ignorance of the facts is an excuse. Therefore, an owner who has an employee or a partner embezzle money or lie about paying the taxes, may and I emphasize may, get off the hook. An owner who didn’t know about the rule (the common law of stupid) might be relieved of personal liability. The rule is that a conscious choice must be made to prefer another over paying the withholding taxes. This leads to some rather interesting results as some tax tales will show.