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Facts About Trust Fund Penalties

Facts About Trust Fund Penalties

Tax compliance is critical to running a business, and understanding the implications of various tax liabilities is essential for business owners. One area that often generates confusion and concern is trust fund penalties imposed by the Internal Revenue Service (IRS). Trust fund penalties can have severe financial consequences for individuals and businesses alike. 

Understanding Trust Fund Taxes

What are Trust Fund Taxes?

Trust fund taxes, also known as trust fund recovery penalties (TFRP), are a type of tax liability that arises when a business collects taxes (such as federal income tax, Social Security tax, or Medicare tax) from employees or customers and is responsible for remitting these funds to the IRS. These funds are considered "trust fund" taxes because the business holds them in trust on behalf of the government until they are remitted. Trust fund taxes are distinct from corporate income taxes, typically paid by the business entity.

Types of Trust Fund Taxes

The most common types of trust fund taxes that businesses are responsible for collecting and remitting include:

  • Federal Income Tax Withholding: Employers are required to withhold federal income tax from their employee's wages and remit these withheld funds to the IRS regularly.

  • Social Security and Medicare Taxes: Employers must withhold Social Security and Medicare taxes (Federal Insurance Contributions Act or FICA taxes) from employees' wages and match these amounts with their contributions.

  • Federal Unemployment Tax Act (FUTA): Employers must pay federal unemployment tax based on their employees' wages. FUTA taxes are not withheld from employees' paychecks but are paid by the employer.

Who Can Be Held Liable for Trust Fund Penalties?

Business Owners and Responsible Individuals

One of the most significant misconceptions about trust fund penalties is that only large corporations are subject to them. In reality, trust fund penalties can affect individuals who are deemed "responsible persons" within a business entity. Responsible persons may include:

  • Business Owners: Owners of sole proprietorships, partnerships, LLCs, or corporations can be held personally liable for trust fund taxes.

  • Officers and Directors: Officers and directors of corporations are often considered responsible persons, especially if they have control over the business's financial affairs.

  • Payroll and Finance Managers: Individuals responsible for payroll processing and financial management may also be considered responsible if they control trust fund taxes.

  • Accountants or Tax Advisors: In some cases, external accountants or tax advisors who have significant influence over the business's financial affairs may be deemed responsible persons.

Factors Determining Responsibility

The IRS considers several factors when determining who is a responsible person for trust fund tax purposes:

  • Authority: Whether an individual has the authority to make financial decisions, sign checks, or control the disbursement of funds within the business.

  • Knowledge: Whether an individual had knowledge of the unpaid trust fund taxes and failed to take corrective action.

  • Role in the Business: An individual's role and level of involvement in financial matters can be critical in determining responsibility.

  • Willful Failure: Whether an individual willfully failed to remit the trust fund taxes or willfully used the funds for other purposes.

It's important to note that more than one individual can be held responsible for trust fund taxes, and the IRS can pursue multiple individuals for the same liability.

Assessing Trust Fund Penalties

IRS Examination and Investigation

Trust fund penalties are typically assessed following an IRS examination or investigation. The process may begin with a notice of an unpaid tax liability or a request for additional information related to payroll taxes. If the IRS identifies trust fund tax issues, it may initiate an audit to determine the responsible persons and assess penalties.

Calculation of Penalties

The trust fund recovery penalty is equal to the full amount of the unpaid trust fund taxes. This includes both the employee and employer portions of withheld federal income tax, Social Security tax, and Medicare tax. Penalties are generally assessed quarterly and may accumulate over time if the taxes remain unpaid.

Civil vs. Criminal Penalties

While this article focuses on civil trust fund penalties, it's crucial to recognize that trust fund tax violations can also lead to criminal charges in cases of intentional fraud or tax evasion. Criminal penalties may include fines and imprisonment.

Avoiding Trust Fund Penalties

Proper Payroll Procedures

To avoid trust fund penalties, businesses must establish and maintain proper payroll procedures, including:

  • Timely Withholding: Ensure that federal income tax, Social Security tax, and Medicare tax are accurately withheld from employees' paychecks and remitted to the IRS on time.

  • Accurate Record-Keeping: Maintain accurate records of payroll transactions, including wage amounts, withholdings, and remittances.

  • Filing Accurate Forms: File required tax forms, such as Form 941 (Employer's Quarterly Federal Tax Return), accurately and on time.

  • Separate Trust Fund Accounts: Consider setting up separate bank accounts to hold trust fund taxes to prevent their commingling with other business funds.

Responsible Persons' Due Diligence

Individuals in positions of responsibility should exercise due diligence when it comes to trust fund taxes:

  • Regular Oversight: Monitor the timely remittance of trust fund taxes and ensure that payroll processes are functioning correctly.

  • Seek Professional Advice: When in doubt about tax compliance, seek guidance from tax professionals or legal counsel to understand your obligations and responsibilities.

  • Timely Communication: If financial difficulties arise that may affect the ability to remit trust fund taxes, communicate with the IRS promptly to explore options for repayment or resolution.

Resolving Trust Fund Penalties

Paying the Penalty

Once trust fund penalties are assessed, responsible persons have several options for resolution:

  • Full Payment: The penalty can be paid in full to satisfy the liability. This option may be preferred if the responsible persons can afford to do so.

  • Installment Agreement: Responsible persons may request an installment agreement, which allows them to pay the penalty in monthly installments over time. The IRS may require financial information to approve such an arrangement.

  • Offer in Compromise: In some cases, responsible persons may qualify for an offer in compromise, which allows them to settle the debt for less than the full amount owed. This is typically considered when individuals cannot afford to pay the full penalty.

Challenging the Assessment

Suppose you believe that you have been wrongly assessed trust fund penalties. In that case, you have the right to challenge the assessment through administrative appeals or, if necessary, through litigation in federal court.

Seek Legal Counsel

Navigating trust fund penalties and resolving associated tax issues can be complex and legally challenging. It is often advisable to seek legal counsel from experienced tax attorneys who can provide guidance and represent your interests in dealings with the IRS.


Trust fund penalties are a serious matter that can have substantial financial implications for individuals involved in a business's financial affairs. Understanding trust fund taxes, who can be held responsible, how penalties are assessed, and strategies for avoiding or resolving them is crucial for business owners and responsible persons.

Compliance with tax obligations, especially those related to trust fund taxes, should be a top priority. By maintaining proper payroll procedures, exercising due diligence, and seeking professional guidance, individuals can minimize the risk of trust fund penalties and protect their financial interests. In cases where penalties have already been assessed, prompt and informed action is essential to address the issue effectively and minimize potential liabilities.



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