J Thomas Black
Board Certified, Consumer Bankruptcy Law- Texas Board of Legal Specialization

 If you own a business that has employees, and the business doesn't pay the "withholding" or payroll taxes to the I.R.S., the I.R.S. is going to come after you, personally, for the amounts that were withheld from the employees' paychecks. This used to be called the "100% penalty" but is now known as the Trust Fund Recovery Penalty.

It's not really a penalty in a way, because the I.R.S. is not trying to collect any additional tax, they are just assessing the tax against the owners or other "responsible persons" who are legally liable for the tax. This Trust Fund Recovery Penalty is not dischargeable in bankruptcy. It is considered the government's money, and they have to give your employees credit for it, so you cannot get rid of or cancel this in bankruptcy.

However, it is possible to pay it out over time, and only pay what you need to. For example, so long as your business was an LLC or corporation, and assuming it is out of business and has no assets, the entity's share of the tax (the corporation's matching share of FICA and Medicare) does not have to be paid, as it is collectible only against the entity, the LLC or whatever.

As to the Trust Fund Recovery Penalty itself, if other responsible people will not pay it (the IRS is only entitled to one satisfaction of the payroll taxes), then it is possible for you to enter into an Installment Agreement, or possibly even do an Offer in Compromise, to resolve the Penalty. If not, and you have regular income, you can pay the Penalty out over no more than 5 years in a Chapter 11 Reorganization or 13 Debt Adjustment plan, possibly without interest. In any event if you file a bankruptcy plan, the IRS is stopped from taking collection actions against you.

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