IRS Deadline: March 1, 2014 – Who is Your Responsible Party?

 

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Do you know who your organization has reported to the IRS as its responsible party? Your organization should make sure the IRS has the current information by the February 28, 2014 deadline.

According to the Instructions to IRS Form 8822-B:

Beginning January 1, 2014, any entity with an EIN [Employer Identification Number] must file Form 8822-B to report the latest change to its responsible party. Form 8822-B must be filed within 60 days of the change. If the change in the identity of your responsible party occurred before 2014, and you have not previously notified the IRS of the change, file Form 8822-B before March 1, 2014, reporting only the most recent change.

For a nonprofit organization, "the “responsible party” is the person who has a level of control over … the funds or assets in the entity that, as a practical matter, enables the individual, directly or indirectly, to control, manage, or direct the entity and the disposition of its funds and assets." Typically, this will be the organization's executive or president.

The person who has accepted the role of being the responsible party may have greater responsibility and therefore greater exposure to personal liability for failure to pay withholding (payroll) taxes. Internal Revenue Code Section 6672(a) provides in pertinent part:

Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over.

While there is no direct reference to "responsible party" in Section 6672, it might be difficult for a person identifying herself or himself as the responsible party to claim she or he was not the party responsible for collecting, accounting for, and paying over withholding taxes. The term "person" in Section 6672 explicitly includes officers and employees, and Section 6672 does not from penalties volunteer board members unless they solely serve in an honorary capacity, do no participate in day-to-day or financial operations of the organization, and do not have actual knowledge of the failure to collect, truthfully account for, and/or pay withholding taxes, and so long as someone else can be held liable for the penalty.

It's important to note that nonprofit organizations may have identified a responsible party when it first applied for an EIN (see the organization's Form SS-4 or online filing records). If the individual listed as the responsible party has since changed, a nonprofit organization must file Form 8822-B by no later than February 28, 2014 to report such change.

Here are additional resources on withholding taxes and possible personal liability:

Not Paying Your Taxes? Your Board Could Be Personally Liable (Nonprofit Quarterly)

Yes Virginia, Nonprofit Directors Really Can be Held Liable for An Insolvent Nonprofit’s Debts (Charity Lawyer Blog)

 

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