If you are considered a responsible person who acted willfully you may become personally liable to the IRS for the trust fund recovery penalty (A similar analysis will also take place with the state taxing authority such as the E.D.D. in California). Typically, responsible persons are owners or corporate officers, but they can sometimes be employees of the company such as the bookkeeper or office manager. If the individual has authority to provide input on whether another creditor of the company or not payroll taxes will get paid, there is an increased likelihood that the IRS will consider them a responsible person.

Any person that has the authority to make a final determination on whether or not employment taxes are paid will always be considered a responsible person. Additionally, individuals that oversee day-to-day operations including owners, corporate officers, and managing partners will be closely scrutinized. Also at risk are employees of the company that are involved in ensuring that employment taxes are paid, even if they do not make the final determination of whether or not payment is made. This is especially true if the employee is authorized and as the ability to avoid default by paying the employment taxes. On the other hand, employees and investors that do not have the authority to write checks, have duties unrelated to the payment of taxes, and/or are not involved in daily operations are less likely to be considered responsible persons.

Although the IRS has some published guidelines in making this determination, there are no assurances that an individual will not be considered a responsible person, and individuals that have the ability to satisfy the debt should be especially wary. If one has theoretical authority to provide input on whether or not employment taxes are paid due to their position within the company, the IRS will likely consider them a responsible person, even if they did not actually make the final decision. Shockingly, there have been instances where the IRS has deemed someone a responsible person even though they argued with the owner about paying employment taxes and ultimately quit their job over the dispute.