What to Know About Trust Fund Taxes

A legal guide for Pennsylvania business owners

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All Pennsylvania businesses that employ people must understand their obligations to collect and remit federal and state income taxes. When you “pay” employees, you do not actually give them the full amount of their gross wages. Instead, you make certain deductions required by law and then pay the remainder as net wages. The money you deduct, however, is not yours to keep. It is effectively held “in trust” by you until such time as you pay the funds over to the relevant tax authority. For this reason, the Internal Revenue Service (IRS) and the Pennsylvania Department of Revenue (DOR) commonly refer to these deductions as “trust fund taxes.”

What are Trust Fund Taxes?

Trust fund taxes in Pennsylvania generally cover the following items:

  • the employee's federal income tax
  • the employee's mandatory contributions to Social Security and Medicare
  • the employee's Pennsylvania state income tax

In the case of state income taxes, an employer must collect trust fund taxes from any Pennsylvania resident who works for the company—whether or not they actually perform the work in the state—and any non-resident employee who is paid for services rendered within Pennsylvania.

The IRS and DOR each provide the formula for employers to calculate the appropriate trust fund taxes. This is presumably done with the aid of an accountant, but the employer is ultimately responsible for calculating and remitting any taxes collected according to a specified schedule.

For federal trust fund taxes, the IRS requires employers to make either monthly or semiweekly deposits. Which schedule applies to your business depends on your total taxes reported for the four previous quarters, or what is known as the “lookback period.” Basically, if you reported $50,000 or less in taxes during the lookback period, you are required to deposit trust fund taxes monthly going forward; otherwise, you must make semi-weekly deposits.

The DOR operates according to a different classification system. It requires quarterly deposits of state trust fund taxes if the total amounts withheld are less than $300 per quarter, monthly deposits for taxes withheld up to $999 per quarter, semi-monthly deposits for taxes withheld up to $4,999 per quarter, and semi-weekly deposits for all higher amounts.

The Penalties

Many employers get themselves into hot water by not remitting their trust fund taxes on time. The reality is that even if you make payments one day late, you are subject to significant penalties. In particular, the IRS will impose “failure to deposit” (FTD) and “trust fund recovery” penalties against any delinquent Pennsylvania business.

The FTD penalties start at 2 percent of any amounts deposited late and rise to as much as 15 percent if trust fund taxes are remitted more than 10 days after the legal due date. And if the business simply doesn't remit the taxes at all, the trust fund recovery penalty is equal to 100 percent of the unpaid tax.

More importantly, the IRS may seek to collect any unpaid trust fund taxes from anyone considered a “responsible person” for the business. In other words, the IRS can go after the owner, officer, or director of a business individually if there is proof that person “willfully” failed to collect or remit any trust fund taxes.

“What we see with clients who have trust fund tax issues is, usually, the business is in some kind of financial distress,” says Stephanie Searles Vogel, a tax attorney at Dilworth Paxson in Philadelphia. “Oftentimes, our client will have already been assessed the penalty from the IRS, or will have gotten some notices that an assessment is imminent. What we do is essentially argue that they are not a responsible party and therefore cannot be assessed.”

Determining the responsible person(s) is a facts-and-circumstances test, she says, “so it has to be someone responsible for collecting and paying the income tax withheld and who also fails to willfully collect or pay them. We’ve had situations where our client is, say, a controller of the corporation, but didn’t have any decision-making power about which creditors get paid when, and only had authority to write some checks.”

This process is a fact-finding endeavor between the attorney and IRS, Searles Vogel says, that requires a lot of paperwork. Thankfully, there is a lot of case law on this issue. That said, it’s not something she recommends tackling on your own. A Pennsylvania tax attorney can advise you on the best course of action.

“When an employer is in financial distress and they’re deciding which creditors should get paid or not, in order for a vendor to come after an employee or officer of the company, they need to pierce the corporate veil. There needs to be mishandling and not respecting of the corporate form,” Searles Vogel adds. “The government doesn’t have to do that for the trust fund taxes. It’s much easier for them to come after an individual. So, if you know the employer is passing along these taxes to the government, you want to make sure they’re doing it in a timely fashion. If they aren’t, you should speak up and say something, consider taking yourself off check-writing authority, or leaving your position, because there’s a good chance the IRS could come after you personally.”

Pennsylvania

The IRS may go after an individual business owner, officer, director, or other “responsible person” who willfully fails to collect and remit trust fund taxes to the government.

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