Navigating tax law can be daunting, even for seasoned business owners. Among the myriad of obligations and regulations, one of the most critical is the requirement to withhold and pay federal taxes correctly. Missteps in these areas, particularly payroll taxes and income tax, can lead to serious consequences, including severe penalties and potential criminal charges.

One essential aspect of fulfilling employment tax responsibilities is the timely filing of employment tax returns. This is a legal duty of the employer and a critical part of accounting for and paying employment taxes. Late filing or failure to file these returns can result in penalties, adding to the business’s tax debt.

The Basics of Payroll Taxes and Employment Taxes

Our tax attorney often refers to employment taxes and payroll taxes interchangeably. These taxes consist of amounts that an employer is obligated to withhold from employee wages, including income taxes and the employee’s share of FICA taxes (Federal Insurance Contributions Act), which fund Social Security and Medicare. In addition, employers must also pay their share of FICA taxes and unemployment tax.

To provide some clarity, let’s make a distinction between payroll taxes and employment taxes. Payroll taxes are the taxes an employer is required to withhold from an employee’s paycheck. On the other hand, employment tax covers not just the withheld taxes but also the employer’s contributions to FICA taxes and unemployment tax.

Running a Business Under Tax Laws

Running a business isn’t just about generating revenue. It also involves navigating a myriad of employment tax laws. Employers are the gatekeepers of payroll taxes and are trusted by the federal government and their employees to withhold and pay these taxes.

Failing to meet these obligations isn’t just a breach of trust; it’s a violation of the law. Employers who stay on top of their tax obligations can avoid costly penalties and potential legal trouble, ensuring a smoother path to business success.

It’s essential to remember that while managing a business can be challenging, fulfilling employment tax responsibilities shouldn’t be overlooked or deprioritized. Ignorance isn’t an excuse in the eyes of the law. Misunderstanding the complex tax laws is not a valid defense for failing to fulfill employment tax obligations.

The Essential Role of Social Security Taxes

Social Security taxes play a vital role in funding benefits for retired and disabled workers, as well as their dependents. As such, the failure to withhold these taxes from employees’ wages and pay them to the government not only violates tax laws but also harms the Social Security system and the people who depend on it.

The act of withholding taxes from employees’ wages is a critical responsibility that every employer must fulfill. This includes federal income taxes and the employee’s share of FICA taxes. This tax withholding is the first step in fulfilling employment tax responsibilities. The second step is ensuring these withheld taxes are promptly paid to the federal government.

Unemployment Tax Payments

Another employment tax that employers often overlook is the unemployment tax. This tax funds state unemployment insurance and the federal administrative costs of the unemployment insurance system.

Employers must pay this tax; it is not withheld from employees’ wages. Failing to pay unemployment tax can also lead to penalties and can increase an employer’s future tax rates.

The Consequences of Failure to Pay

Failure to pay these taxes can lead to substantial penalties and interest on the unpaid tax. The Internal Revenue Service (IRS) is relentless in its pursuit of unpaid employment taxes, with severe penalties for non-compliance. A significant consequence of failure to pay employment taxes is the Trust Fund Recovery Penalty (TFRP).

If an employer fails to account for and pay employment tax, the IRS can assess the TFRP against a “responsible person.” This person can be an officer or an employee of a corporation, a member or employee of a partnership, a corporate director or shareholder, an employee of a sole owner, or another responsible person who had the duty to perform and the power to direct the act of collecting, truthfully accounting for, and paying trust fund taxes.

Tax evasion is a serious crime, and it’s treated as such by the federal government. If an employer willfully fails to fulfill their tax obligations, they aren’t just committing a civil violation—they’re engaging in criminal conduct. This crime can lead to a criminal investigation by the IRS, potential charges by the Tax Division of the Department of Justice, and, if convicted, imprisonment.

Willful Failure to Pay

Willful failure to pay taxes can lead to criminal charges, which carry severe penalties. The punishment can be as harsh as up to five years in prison, coupled with monetary fines. These repercussions are a testament to how seriously tax evasion or fraud is treated by the federal government.

Sometimes, a business may fail to pay employment taxes in a misguided attempt to stay solvent or to pay other creditors. However, this course of action can lead to more financial harm than good.

Not only will the business still owe the unpaid trust fund taxes, but it will also face the Trust Fund Recovery Penalty and interest, further exacerbating its financial problems.

What Is “Willful Failure?”

The term “willful failure” is used when employers deliberately fail to pay payroll taxes, income tax, or other tax payments. Willful failure means the employer intentionally, deliberately, voluntarily, and knowingly disregarded the law or carelessly disregarded a known legal duty.

In cases of willful failure, the employer may face criminal sanctions, including a penalty equal to the amount of unpaid trust fund taxes and potential imprisonment for up to five years.

“Willful failure” in tax matters is serious. It implies a known legal duty and an intentional violation of that duty. A responsible person who is aware that employment taxes are due and chooses not to pay them could be found guilty of willful failure.

The Role of the Responsible Person

The term “responsible person” is a crucial one in tax matters. This person has the power to direct the collection, accounting for, and payment of trust fund taxes.

If this individual willfully fails to perform these duties, they can be personally liable for a penalty equal to the unpaid trust fund taxes. This penalty is in addition to the tax itself.

Navigating Through Employment Tax Laws

The employer has a legal duty to collect, truthfully account for, and pay tax on employee wages. The tax withheld becomes a trust fund for the government, and any failure to comply with these employment tax responsibilities can result in severe consequences.

Failure to withhold income taxes or FICA taxes from employee wages and pay them to the IRS can result in both civil and criminal penalties. According to the Internal Revenue Manual, the IRS can also resort to criminal investigation and civil litigation if tax evasion is significant and prolonged.

The Tax Division of the Department of Justice handles criminal charges related to tax matters and frequently coordinates with the IRS for criminal investigations.

The Perils of Tax Evasion

Tax evasion is a criminal offense. Those found guilty could face criminal penalties, including imprisonment for up to five years. The IRS pursues these cases vigorously, particularly in situations involving large amounts of unpaid employment taxes.

When a business does not truthfully account for and pay employment taxes, the IRS initiates its collection efforts. This can result in the seizure of business assets, and the responsible person can face significant personal liability. Unpaid trust fund taxes can lead to liens on property, levies on bank accounts, and other severe financial repercussions.

Given the serious consequences of failing to fulfill employment tax obligations, it is highly recommended that businesses seek advice from a knowledgeable payroll tax lawyer. Expert advice can help businesses understand the tax laws, employment tax returns, and the tax imposed on employee income, ensuring they are fully compliant.

In the case of an IRS investigation or charges of tax evasion, a payroll tax lawyer can provide much-needed legal representation as well as guidance. Even if a business finds itself in the predicament of unpaid employment taxes, there are options. However, taking advantage of them requires a thorough understanding of the IRS procedures and guidelines. Engaging with a lawyer to negotiate the terms of such an arrangement is the safest way to a good outcome.

Common Missteps and Their Consequences

Some employers mistakenly classify employees as independent contractors: sometimes as a genuine mistake, and sometimes to avoid payroll taxes. This misguided attempt can lead to penalties and back taxes.

Similarly, employers might use the withheld taxes to keep the business afloat or to pay other creditors, which is an intentional violation of tax laws. In such instances, the employer can be subject to the Trust Fund Recovery Penalty and potential criminal charges.

Keeping Employment Tax Obligations in Perspective

The obligation to withhold taxes from employees’ wages and pay them to the federal government is not just a legal requirement but also a matter of trust. Employees trust that their employers will withhold the correct amount of taxes and pay these amounts to the government on their behalf.

The tax system in the United States is based on voluntary compliance. Each tax year, employers are trusted to calculate, withhold, and pay employment taxes correctly. When employers fail in this obligation, they breach the trust of their employees and the government.

Withholding Payroll Taxes: Misconceptions, Details, and Terms

Let’s discuss more of the details behind this crucial responsibility to withhold payroll taxes from employees’ wages.

Misconceptions About Payroll Tax

A common misperception among employers is the belief that the payroll tax withheld from employees’ wages is the company’s money to use as it sees fit. This misunderstanding often leads to the wrongful use of withheld employment taxes to meet other business expenses.

However, it’s crucial to understand that these taxes are, in fact, trust fund taxes. As soon as these amounts are withheld from employee wages, they belong to the government. Using these funds to meet other business expenses is a breach of the employer’s fiduciary duty, and it is illegal.

Who Is the Responsible Person?

Determining the responsible person for paying payroll taxes can be a complex issue. In many cases, more than one person in a company might be deemed a responsible person.

The IRS will look at who had the authority and control over the business funds, who had the ability to pay the taxes, and who had the knowledge of the failure to pay employment taxes. It’s crucial to understand that multiple responsible persons can be held liable for unpaid tax and the associated penalties.

FICA Taxes

FICA (Federal Insurance Contributions Act) taxes consist of Social Security taxes and Medicare taxes. Employers must withhold a specific amount of FICA taxes from employee wages and also contribute an equal amount themselves. Failure to comply can result in penalties and interest on the unpaid tax.

Trust Fund Taxes and FICA Taxes

Trust fund taxes refer to the income taxes and the employee’s share of FICA taxes that an employer withholds from the employee wages. The term “trust” is used because the employer holds these taxes in trust for the federal government until they are paid. If these trust fund taxes are not paid, the employer can be held responsible.

Trust Fund Recovery Penalty

We’ve mentioned the Trust Fund Recovery Penalty (TFRP) several times, but it’s worth discussing in more detail. The TFRP can be imposed on any responsible person who willfully fails to collect, account for, or pay trust fund taxes.

This penalty is equal to the unpaid trust fund taxes, which includes the income taxes and the employee’s share of FICA taxes that an employer withholds from employees’ wages.

Understanding Potential Consequences

Criminal Charges

In cases where the failure to pay taxes is deemed an intentional violation, criminal charges can be leveled against the responsible person. This violation can occur when the responsible person was aware of the employment tax obligations and deliberately chose not to fulfill them or when the failure to pay tax was a misguided attempt to evade tax obligations.

Such conduct can lead to criminal investigations, and if the person is found guilty, they could face criminal penalties, including fines and imprisonment.

IRS Collection Efforts

This process could involve seizing business assets, levying bank accounts, and asserting liens on property. The responsible person could be personally liable, leading to severe financial distress.

Seeking Help from a Payroll Tax Lawyer

Given the complexities of the tax laws and the dire consequences of non-compliance, it’s wise for businesses to engage a knowledgeable tax adviser, and the best bet here is a lawyer who can not only help in understanding obligations but also defend a company in court and to the IRS.

These professionals can provide guidance on complying with employment tax obligations, filing employment tax returns, and navigating the tax imposed on employee income. A lawyer can also assist if the IRS commences an investigation or charges of tax evasion arise, providing much-needed legal representation.

Exploring Your Options

While facing the IRS can be intimidating, a tax adviser or lawyer can help mitigate the challenges. They can assist in navigating the IRS collection efforts, ensuring that all potential remedies are explored and the best possible outcome is achieved.

In instances where a business finds itself grappling with unpaid employment taxes, there are options to consider.

One possibility is negotiating a payment plan with the IRS to resolve the unpaid tax. While it may seem like a daunting task to negotiate with the IRS, a lawyer can guide businesses through IRS procedures and help negotiate payment terms.

Negotiating with Other Creditors

In some cases, businesses facing financial distress due to unpaid employment taxes may find themselves dealing with other creditors, and a lawyer can help here, as well.


As a last resort, a business might consider filing for bankruptcy. It’s important to note that while bankruptcy might discharge some types of debt, trust fund taxes are generally not dischargeable in bankruptcy. A tax lawyer can help a business decide if bankruptcy is the right choice and guide a business through the complicated process.

The Domino Effect of Unpaid Payroll Taxes

Unpaid taxes can create a domino effect leading to various penalties, increased tax rates, and potential criminal charges. With such severe consequences, it is paramount for every business to take a proactive approach toward their tax obligations. This approach  includes regularly consulting with a tax adviser, staying informed about changes in tax laws, and prioritizing the payment of employment taxes.

Learning from Past Tax Years

Employers can learn from past tax years and make necessary adjustments to avoid future tax problems. By reviewing previous mistakes, they can ensure they fulfill their employment tax obligations, pay taxes on time, and avoid costly penalties and potential legal trouble.

Get Help With Income Tax, Payroll Taxes, and More

Navigating tax obligations can be a complex task, but it is an essential aspect of running a successful business. The consequences of failure to pay payroll taxes and other obligations are severe and can have far-reaching effects on a business and its owners. Employers must understand the gravity of their role as the collector of payroll taxes.

Remember, when it comes to payroll tax laws, ignorance is not bliss. Being proactive, seeking professional advice, and staying on top of your tax responsibilities can save you from a world of trouble. At Seattle Legal Services, PLLC, we have a wealth of experience in helping businesses deal with the IRS and navigate the complexities of Medicare taxes, payroll taxes, and all other types of employment tax. We can also help you make sure you’re on top of things now, so you avoid any trouble that could arise in the future. Don’t wait any longer and allow the consequences to snowball: call us now at 206-895-7268.