An Overview of Employment Taxes

Whether as employee or employer, taxes are a permanent workforce expectation. But let’s first go over what we already know. Employers must withhold and pay employment taxes over to the IRS. Those taxes include federal income tax, social security, Medicare, and unemployment taxes. Despite all the grumbling, these taxes provide important benefits to employees who pay into these federal programs. Here is a rundown:

• Social security: Disability, survivors, and old age benefits are accrued by employees when they pay their social security taxes.
• Medicare: Hospital and medical benefits are funded by the Medicare program.
• Unemployment taxes: For workers out of a job, unemployment taxes can offer a lifeline of benefits and services.
• Federal income tax: Federal taxes taken at the paycheck level ensure federal income withholding amounts are tallied and paid as earned. 

Collectively known as “employment taxes,” these monies can be easy pickings for business owners awash in red ink or looking to live beyond their means by keeping, rather than paying, these taxes.

Why Paying Taxes is Important

A recent report from the IRS shows about the same number of us are paying the taxes we owe, and about the same number are not.

The tax gap or the difference in taxes paid versus those potentially owed (as estimated by the Internal Revenue Service) in the United States is about $381 billion, by the latest estimates. Those billions are monies that would fund a myriad of worthwhile programs and services throughout the country—were they paid as per federal tax laws.

In September of 2019, the IRS released its comparative report that looked at tax revenue in the years 2011 through 2013. There are five types of taxes reviewed by the IRS. These taxes include employment taxes, personal income taxes, corporate taxes, excise, and estate taxes. The bottom line is that the tax gap is roughly the same as it was during tax years 2008 through 2010. In this same report, it estimates that about 83.6 percent of owed taxes are paid on time and voluntarily by U.S. taxpayers. By comparison, the percentage of taxes paid the same way in the 2008 to 2010 tax period was 83.8 percent—virtually the same. 

Notes IRS Commissioner Chuck Rettig, "Voluntary compliance is the bedrock of our tax system, and it's important it is holding steady. Tax gap estimates help policy makers and the IRS in identifying where noncompliance is most prevalent. The results also underscore that both solid taxpayer service and effective enforcement are needed for the best possible tax administration."

The tax gap is divided into three ways:

• Taxes that are underpaid: These are taxes that are reported, but not paid on time.
• Taxes that are underreported: These are revenues that are understated on a tax return.
• Taxes that are not filed: As the name implies, these are taxes that are not paid on time, nor are required tax returns filed on time.

Tax gap estimates are an important measure of compliance in the U.S. Compared to many countries, the U.S. enjoys a relatively high and stable rate of tax compliance. While most people are interested in saving on their taxes or seeing tax rates reduced, tax revenue pays for necessary state and federal services. Without tax infrastructure, even basic expectations, like passable roads, good education, food safety, affordable utilities, and federal security can quickly go south.

Despite the budget squeeze at the IRS, the agency continues to push compliance through its criminal tax investigations, and civil and criminal tax audits. That said, no one needs to pay more tax than is legally owed, and there are smart strategies you can use to pay tax obligations, report wealth accurately, and protect individual or corporate wealth from unnecessary taxation. 

What Constitutes a Tax Crime?

You or your company might underreport your income a little. Maybe you don’t reveal all of your foreign holdings on your FBAR. Or, maybe you cooked up a scam over a few years that finds you claiming deductions you have no hope of being able to support. Are you going to jail?

We talked earlier about the chronic defunding of the Internal Revenue Service (IRS). It is true—the number of IRS prosecutions for tax crimes has declined. So, in terms of crime, is the IRS aiming at your accounting practices?

An IRS mandate: Educate about and deter tax fraud

Within the IRS, the Criminal Investigation (CI) unit takes a hard look at tax fraud, tax-associated money laundering, and illegal proceeds earned by legitimate companies through a variety of fraudulent methods. Some of the crimes pursued by CI include:

• Employment and payroll tax fraud: Payroll tax issues are common. Underreporting workforce numbers, collecting payroll taxes (federal unemployment, social security, and withholding taxes) and failing to pay them over to the IRS, or paying employees in cash under the table are just a few of the schemes pursued by the IRS. 
• Refund fraud: Most people know that filing a false income tax return could turn into tax litigation. Individuals and tax preparers engage in refund fraud and sometimes identity theft in order to obtain an unearned tax refund. This is also the realm where fake deductions, exemptions, and business expenses come into play.
• Abusive tax schemes: U.S. taxpayers who avoid filing regulatory reports like FBAR and FATCA could find themselves facing an IRS criminal tax investigation. With the proliferation of secrecy jurisdictions, individuals with significant wealth may seek the greater privacy available through offshore tax havens. There is often a fine line between an abusive tax scheme and a tax option used by an unwitting taxpayer trying to make legitimate use of offshore tax resources.

Committing tax fraud or tax evasion could provoke the interest of the IRS. But remember, the IRS is both underfunded and short-staffed these days. An important aspect of any tax crime is intent. It takes less time and money to work out a civil arrangement with a delinquent taxpayer than it does to try and convict that same taxpayer of a criminal offense. 

Examples of employment tax scams

Employment taxes can be tempting to those looking for a bigger payday. The IRS has identified a couple of common employment scams including these:

• Pyramiding: This well-known scheme is the one we talk the most about. An employer withholds employment taxes but fails to pay them over to the IRS. While this happens in the context of established, well-regarded businesses from time to time, it is also the domain of fly-by-night contractors who set up businesses like employment agencies. After doing business for a period of time, operators bank employment taxes and then quickly wind down the business by declaring bankruptcy before leaving town to set up shop in another town.
• Leasing employees: The use of third-party vendors to lease, or lease back, employees can lead to employment tax problems in a couple of ways. If you arrange with a third-party provider to hire and handle your HR needs, it saves you the in-house hassle because the provider is handling administrative tasks—including collection and payover of employment taxes. Sometimes these providers skip town with the money or develop offshore tax routes to defer taxes.
• False tax returns: Filing a fraudulent payroll tax return is an easy way to underreport wages earned. Failing to file at all is also a basic form of employment tax fraud.
• Misclassification of Employees: Businesses might misclassify employees as independent contractors to evade the obligation to pay employment taxes.
• S-Corp Officer Compensation Handled Like a Corporate Distribution: This mislabeling of compensation facilitates the avoidance of employment tax liability.
• Paying in Cash: Employers often arrange to pay employees in cash to evade the responsibility for employment taxes. 

These are not new or novel mechanisms of employment tax fraud. Oftentimes, a business owner can become so enmeshed in the criminal enterprise, that they may convince themselves they will not get caught, or that what they are doing is not really a tax crime. But when the IRS comes calling, the situation quickly turns serious. The IRS rigorously pursues criminal sanctions against persons suspected of employment tax fraud. 

Tax Evasion—a Growing Crisis

According to a 2019 Brookings Institute report based on IRS statistics, tax evasion is responsible for one out of every six federal tax dollars owed but not paid. This has a huge impact on the U.S. economy. Every year, unpaid taxes amount to about 75% of the federal budget deficit.

The incidence of misreporting and evasion is particularly significant for sole proprietorships, farms, and high-income households. Illegal tax evasion and legal tax avoidance call into question the fairness of the federal tax system because lower-income households seem to pay more than their fair share of taxes.

Tax evasion is always illegal

Whether it is deliberate or inadvertent, tax evasion is illegal. Unreported income, reporting expenses you did not incur, or failure to pay taxes owed are common forms of tax evasion. Employment tax evasion (such as paying someone “under the table”) is also a common type of tax evasion. Mistakes on a tax return are an example of inadvertent tax evasion.

According to the Brookings Institute, tax evasion rates differ depending on the type of taxes and the manner of reporting:

• Payroll taxes and self-employment taxes account for 19% of tax evasion, but 39% of taxes paid.
• Corporate taxes account for 9% of evaded taxes, but only 9% of taxes paid.
• Individual income taxes account for 72% of tax evasion, but only 44% of taxes paid.

Legal tax avoidance strategies

While tax evasion can bring criminal penalties, including jail and substantial fines, tax avoidance is legal. Tax avoidance includes taking advantage of a property tax deduction and other deductions on a federal income tax filing as a way to limit or avoid taxes. Other legitimate forms of tax avoidance include setting up tax-deferred plans (IRSs, SEP-IRA, or 401k) and tax credits. Since the U.S. tax code is so complex, it's best to seek the advice of an experienced tax attorney before developing a tax avoidance strategy.

Do You Know if You Filed a False Tax Return?

Most of us would not intentionally commit tax fraud. Being convicted of filing fraudulent tax returns can put a crimp in your professional life, not to mention the possibility of going to prison. Yet, some people commit tax crimes without even knowing it.

When U.S. tax returns are filed, you sign on the bottom line that the information contained therein is accurate to the best of your knowledge. You attest that the return is an accurate reflection of your financial affairs as far as they are reported in the return.

If you have an accountant or tax preparer create your tax return, FBAR, or other report—you remain legally responsible for the accuracy of the information you provide to the IRS. Errors made on the return that lead to fines are paid by the taxpayer.

Be careful when choosing who prepares the tax returns that you sign. The IRS provides a directory tool for locating a preparer in your area with credentials recognized by the IRS. Here are a couple of tips for choosing and using a tax preparer:

• Never sign your return while it is blank as a convenience.
• Steer clear of tax preparers whose fee is related to the amount of refund you receive.
• Avoid tax preparers who guarantee you a bigger return than you might receive from another tax service.
• Check the history and credentials of your accountant, tax lawyer, or tax preparer. Are they a sole practitioner—if so, are they established in the community? Working with a longtime accountant or tax attorney ensures there is someone around to answer your questions if the IRS comes knocking several years from now.
• Be sure to obtain a copy of your return after it is filed.

The best way to protect yourself from filing a false income tax return is to verify the information going into your return and choose reputable professionals with verifiable credentials to prepare it. This does not mean you will never be audited—but it improves your chances of sailing through any questions that may eventually come your way.

Exactly How Serious is Failure to File Your Tax Return?

How troublesome is it if you fail to file your annual tax return, or your quarterly business taxes? This is not a trick question. The answer is, “it depends.”

If you do not owe any taxes, there is no penalty or fine for not filing a tax return. If you do not file though, you are also not eligible for any refund you may be due. The Internal Revenue Service (IRS) refers to those who do not file tax returns (whether they owe or not) as “nonfilers.”

In the spring of 2020, nonfilers experienced the disadvantage of receiving economic stimulus payments later because they were not registered with the IRS.

While late refunds and other payments to nonfilers who have no tax obligation are unfortunate, they do not contribute to the tax gap. The tax gap is that gulf between how much tax should have been paid in any tax year, and how much was actually collected.

The U.S. relies heavily on voluntary compliance of taxpayers to file and pay their taxes. As employees, employment taxes that fund government programs are automatically withheld from your paycheck. Business owners are expected to calculate and file their taxes on time. Still, in 2019 the tax gap was $39 billion, so clearly there is a problem.

When identified, the IRS is not charitable with nonfilers who have a tax obligation that accrues due to a failure to file a return. The same thing holds for actual taxes owed on a fraudulent tax return. In the case of a false tax return, a taxpayer can quickly find themselves flirting with an allegation of tax crime.

Failing to file a tax return can quickly grow the amount of a tax liability. Taxpayers may earn a penalty for filing their return late. Even with an extension, there is a penalty for late payment of taxes owed. Combine any of the above with a false tax return and the amount of money owed goes up. Taxpayers trying to avoid paying by not filing a return can be charged with a misdemeanor or a felony. For those who simply quit paying their taxes over a number of years, an IRS criminal tax investigation can lead to federal prosecution.

The outcome of failing to file a tax return depends on a number of factors, including the skill of the criminal tax attorney retained to handle the matter. If you know you are in arrears, or are contacted by the IRS, speak with skilled legal counsel before responding to the IRS. The intervention of a good tax lawyer at any point in a tax matter can mitigate damages and lead to a better resolution than a criminal tax investigation allowed to run its course.

How the IRS Builds a Case for a Failure to Pay Payroll Taxes

Failing to pay payroll taxes is serious. The Internal Revenue Service (IRS) does not take these matters lightly. In some cases, penalties for such violations can result in personal liability for those who are deemed responsible for paying these taxes. If the allegations are successful, the IRS can hold the person accused of failing to pay these taxes accountable for 100 percent of the missed payment.

Essentially, there are two main factors that the agency must establish to build a successful claim. The first is that the accused is responsible and the second is that the failure was willful.

The definition of a “responsible party” for these purposes is fairly broad. It does not just include those who are directly responsible for making payroll tax payments but extends to include anyone who “has a duty to perform and the power to direct the collecting, accounting, and payment of trust fund taxes.”

Liability for these taxes also requires a finding that the failure to pay was willful or reckless. It is important to note that this requirement is also interpreted broadly. The failure does not need to be intentional to meet this requirement. The fact that a qualifying individual is aware of the failure is often enough.

Seem harsh? It certainly can be. This broad scope can result in allegations against those who were unaware of a failure to make payroll tax payments. A piece in Accounting Web discusses a case that provides some clarification on how these factors are interpreted.

In this case, the president and CEO of a company were accused of failing to make payroll taxes. Since both had the ability to hire and fire employees and control the company’s bank accounts, the IRS build a case to accuse them of personal liability for failing to make payroll taxes. In theory, it sounds like these individuals could qualify for the above definition of those that are responsible for payroll taxes. In reality, they had hired a controller to take charge of these taxes as well as an accounting firm to run audits and complete income tax returns.

The business began to struggle financially. The accounting firm issued a clean audit but later noted the controller had overstated the business’ receivables and failed to pay payroll taxes. This led the business to bankruptcy.

The IRS accused both the president and CEO of failing to file payroll taxes and issued a trust fund penalty. The lower court agreed with the IRS’ above reasoning, finding in favor of the agency. On appeal, the penalty was overturned. The appellate court noted that the owners did not meet the definition of a willful or reckless failure to pay, likely due to the fact that they had “no actual knowledge” of the failure to pay.

What can I do to protect against tax liability?

Any allegation of wrongdoing from the IRS, including examples like the one noted above, should be taken seriously. Penalties for violations are often harsh. In addition to steep financial penalties, criminal penalties can also apply. As a result, anyone accused of a tax violation is wise to seek legal counsel.

Employee Misclassification 

Classifying employees as independent contractors has been around as long as employers started providing benefits. Employees may enjoy a host of benefits that contract workers with their company may not. Some of those benefits include:

• Structured wages
• Family and medical leave
• Health insurance
• Overtime
• Workers’ compensation
• Unemployment insurance

Sometimes a worker may offer services under substantially the same conditions as a hired employee, but remain classified as an independent contractor. Some of the criteria that contribute to that determination are the location of work performed, how work projects are developed and controlled, and how well integrated the services offered by the employee are to the company, along with other factors.

While workers wrongly classified as independent contractors miss out on social net and other benefits, employers who misclassify employees usually benefit. Among the liabilities employers do not have to pay for gig workers are health insurance premiums, payment and withholding of social security and unemployment benefits, or workers’ compensation premiums.

Although it is not difficult to classify an employee as a gig worker, the arrangement may turn sour if the worker applies for unemployment or is injured and seeks workers’ comp benefits. While many workers are afraid to speak up about misclassification, some inequities are coming to light as stimulus programs are developed to offer paycheck and unemployment support for certain types of employees.

Employers who wrongly classify employees may face new heat when furloughed and laid-off workers seek stimulus payments to which they believe they are entitled—only to learn their employer has misclassified their status.

In an employment tax dispute, business owners who misclassify workers can be liable for past and current employment taxes and payments that should have been made on behalf of a properly classified employee. The IRS will work with an employer to evaluate the basis upon which the misclassification occurred—but considerable taxes may still be due.

Best bet? Make sure your employees are properly classified. If you use independent contractors, steer clear of the financial and project control that typifies an employee more than a 1099 worker. And if the IRS contacts you to discuss a payroll tax issue? Call a good tax attorney first.

The Ups and Downs of Employment Leasing

Outsourcing payroll functions can save business owners and operators time and money. Using vendor expertise lets employers focus on marketing their core strengths and customer fulfillment. For some companies, it is a good deal—and sometimes it isn’t.

A professional employer organization (PEO) is a company that handles personnel services for small- to mid-size companies. These businesses are called employee-leasing firms. With pricing based on the number of employees served, PEOs often provide services that include:

• Benefit sourcing and service: With multiple clients, PEOs can source and provide benefits that might otherwise be out of reach to a small business. Health, vision, dental, and workers’ compensation programs can become affordable to employers using a PEO. Coordination of 401(k) and other pension benefits are also sometimes available through PEOs, saving entrepreneurs and owners the hassle of shopping and qualifying for affordable benefits for their workers.
• Payroll and compliance services: Employee payroll, collection and pay over of employment taxes, coordination of vendor payments, and filing of regulatory records are an important service offered by PEOs.
• Human resources: PEOs may offer recruiting and employee screening services, as well as workplace safety and risk management, consulting.

Due diligence is critical when considering a PEO, but there is more. Employee-leasing companies often come under extra scrutiny in any business community because the business model is often associated with tax fraud. Operating individually or as a network of affiliated companies, PEOs may operate respectably for a period of time—or the long term—before it is discovered that employment taxes withheld from workers, and taxes and premiums paid by employers have not been paid in full to vendors or turned over to the Internal Revenue Service (IRS).

The IRS may uncover the scam while the PEO is still operating. Oftentimes the company, or group of companies, has quietly wound down with tax obligations still owing and criminal tax charges pending.

Unfortunately, business owners may discover they have a large payroll tax issue when the IRS seeks payment of past-due tax liabilities. A PEO could provide valuable services to your company. If considering an employee-leasing service, careful investigation of your vendor may keep you out of an IRS criminal investigation later.

Pyramiding—The In-Business Repeater

A pyramid is a stable, solid form. As a payroll tax scam though, it is pretty shaky.

“Pyramiding” is a business model involving companies doing business for a relatively short period of time that collects employment taxes for its workers but fails to turn funds over to the Internal Revenue Service (IRS). When time runs out for the business as a going concern, the business files for bankruptcy to see its financial liabilities discharged. The owner operators then pack up and move elsewhere in the region, or in the country. This kind of scam is not to be confused with a multi-level marketing or pyramid scheme, although it is common for either a pyramid scheme or pyramiding to result in criminal tax charges.

Another term for “pyramiding” is an in-business repeater, that is, people who stay in business, creating financial liabilities from which relief is sought in bankruptcy court, or which simply go unpaid. When the pattern is recognized, those involved may be charged with tax crimes—if they can be located.

A “repeater” is a discretionary term used by the IRS for someone with multiple tax liabilities. It is not often used for someone with tax problems who is trying to work their way out of a financial fix, but for those committing tax fraud in the form of wind-down and pop-up businesses.

Being an in-business repeater earns you special attention from the IRS. Once on your trail, the IRS usually stays there, waiting for your repeat business. The IRS usually closes in fairly quickly on repeaters with significant tax obligations, by seizing assets and commencement of other legal proceedings. As well, in-business repeaters are usually tagged with paying taxes they failed to pay previously, with substantial penalties.

Cash on Hand—Paying Under the Table Can Cost You

Payment in cash is easy and fast. Workers appreciate cash and it saves business owners money and hassle—in the short term. Paying cash under the table can also lead to prosecution for tax fraud.

How you structure your payroll is important, regardless of the size of your business. You may be a small business owner or the CEO of a large corporation with several revenue units. Large or small, payroll—and payroll tax—are regulated and require regular, accurate reporting.

There are a number of reasons that employers pay workers under the table, including:

• Workers may not have documentation that would allow them to work in the U.S.
• Paying employees in cash usually means that employment taxes are not taken out of the payroll, reported, and paid over to the Internal Revenue Service (IRS). Other times, workers have employment taxes taken out of their pay, but the money is not accounted for or rolled over to the IRS on behalf of the worker.
• The same goes for businesses that are required to provide Workers’ Compensation benefits for employees. Payments made to employees may be made in cash, with no report or paystub to show withholding on their behalf. Eventually, the inability to obtain Workers’ Comp benefits after injury or workers who are unable to show withholding taxes on their tax returns can trigger an IRS tax audit.
• Employers or owners of struggling businesses may pay in cash to reduce short-term expenses or use withheld payroll tax revenue to pay their own personal expenses.

Regardless of whether you pay by cash or check, there are compelling reasons for collecting, accounting and turning over appropriate payroll deductions to the IRS. While prosecution, fines, and loss of liberty can be abstract threats to a business owner trying to line their pockets or pay past-due bills, the Trust Fund Recovery Penalty (TFRP) is a focused, clear penalty awaiting those who fail their duty to pay over payroll taxes.

As we have discussed earlier, the TFRP is a tool used by the IRS to go after those responsible for collecting and paying over payroll taxes. The TFRP shreds the corporate veil and leaves the personal assets of a business owner vulnerable to seizure for past-due amounts owed on workers whose tax obligations were not lawfully paid over.

The scenes of a worker signing an “x” in the payroll book in return for weekly cash pay exists only in the movies. As a business owner or operation, understand your payroll responsibilities and your payroll tax obligations. Avoiding payroll taxes by paying in cash can be one of the most expensive decisions you ever make.

Evading Employment Taxes Has Its Consequences

The temptation is too great—a business owner siphons employment taxes to fund the business or his lifestyle. You may be falling behind on paying over withholding taxes right now, but are convinced no one will notice. But what if the IRS already knows?

Enforcement around employment taxes is a priority for the Internal Revenue Service. Employment taxes fund the government that keeps the country moving. FICA taxes withheld from employee paychecks help support important programs like Medicare and Social Security. Workers who do not contribute sufficiently to these social programs may find their access to needed government assistance cut off when needed. Business owners or operators who pilfer FICA paycheck proceeds rarely take these downstream consequences seriously.

According to IRS data, employment taxes represent approximately 70 percent of all revenue collected by the agency. Theft of employment taxes also represents a significant part of the U.S. Tax Gap, which is the difference between taxes actually paid and owed in the U.S.

Another aspect of employment tax fraud occurs when an owner assigns the responsibility to collect and turn over payroll taxes to a staff member. When the malfeasance is discovered, the employee will be fired and possibly criminally prosecuted. What most business owners fail to factor in, when they embezzle payroll taxes or have an employee who does, is that they will be responsible for a Trust Fund Recovery Penalty (TFRP). The penalty is assessed against the party responsible for paying over employment taxes. If an employee steals withheld taxes instead of paying them over—the employer will pay.

As a result, the IRS often pursues criminal tax investigations of operators at the center of an employment tax dispute. The IRS has a healthy conviction rate for the cases it takes to trial for employment tax violations—for example, California business owner, Larry Kudsk.

Mr. Kudsk owns two construction companies that provide general contracting and subcontracting services. For both companies, Mr. Kudsk was responsible for withholding and paying employment taxes over to the IRS. For approximately two years, Mr. Kudsk failed to turn over withholding to the IRS. Following an IRS criminal tax investigation, and together with the U.S. Attorney, and the Department of Justice, Mr. Kudsk was arrested and will serve one year in prison, followed by three years of supervised release. For his trouble, Mr. Kudsk owes the government $244,973.00.

There is nothing exceptional about the crimes of Mr. Kudsk or about employment tax crime itself. The IRS takes a hard line against those who pocket money they should be paying over and work hard to prosecute business owners who do. If this is you—speak with an experienced criminal tax attorney today.

What if the IRS Reaches Out to Your Business: Understanding Civil Tax Audits

When the Internal Revenue Service (IRS) is interested in your business, the result could be a civil tax audit.

Even if you know you have nothing to worry about, you might be concerned about receiving a friendly letter from the IRS suggesting that you sit down for a talk while providing a few years of your tax documents for review. To be clear, COVID-19 has changed a lot of things. The likelihood of any in-person IRS tax audit, or any tax audit for that matter, is diminished. During the lull, it is a good idea to brush up on why the IRS might be curious about your financials—and what they might do about it.

As we have discussed before, there are a couple of ways you could land on an IRS audit list, including:

• The IRS develops formulae against which taxpayer data is driven. Your return might fit a pattern, not fit a pattern, or simply be a “calculated” random choice.
• Your current or past returns may not fit an expected pattern, leading to your return being set out for review. You may have experienced a significant rise or drop in income, or again, software may identify an irregularity in your current return.
• If you are an investor or associated with a company or group of businesses that are under audit, your business and personal returns may be pulled in simply because you are associated with that cohort. Not exactly guilt by association, but not far from it.

If you are selected for an audit, the IRS will contact you via mail with directions about an audit. An audit can be performed by mail and that mode is likely to pick-up steam in the future. If you are contacted by telephone about an audit, do not reveal any information but politely ask for the name and telephone number of the caller. The IRS states they will not start a taxpayer audit by telephone.

The letter you receive should list out documents they would like to review, both hardcopy and electronic. Most of the time, audits are limited to the past three years of returns.

If you receive an audit letter from the IRS, read it carefully, and then contact an experienced tax attorney in your area. Legal counsel will help you respond on time with appropriate documents. Seasoned legal help can help keep the process smooth and uneventful, especially if you have a complex return or considerable wealth.

Have You Received an Upjohn Warning?

Internal company investigations are common. Most of these white-collar investigations are conducted and concluded. Others make headlines. If you receive an Upjohn warning as a result of an internal investigation, it is important to understand what you are looking at and where to get help.

Internal investigations are conducted for many reasons. The most common are those conducted out of concern for financial loss, payroll tax issues, embezzlement, tax fraud, money laundering, theft, conflicts of interest, or potential theft of intellectual property, among other topics.

It is not unusual for companies to retain outside vendors, like a law firm, to conduct an ostensibly fair internal investigation to examine potential wrongdoing. Such an investigation may ensue if the corporation is approached by a regulatory agency or the IRS. Some internal investigations have a big impact on those involved if potential corporate criminal liability is alleged. An investigation may ensue when the company needs to better understand its role in any violation of state or federal law.

During an investigation, you may receive an “Upjohn warning.” The term itself derives from a 1981 case before the Supreme Court titled Upjohn Co. et al v United States et al. One of the outcomes of the case impacted whether company lawyers could claim attorney-client privilege when speaking with non-management employees during an internal investigation. Mid-level or other employees often have information relevant to ongoing business but had heretofore not been protected in those conversations with company attorneys trying to get to the bottom of an issue.

As a result, today, an Upjohn warning is a procedural warning given to an employee that their conversations with company attorneys or investigators does not necessarily protect the employee. Employees have certain rights in serving the company, but the company holds the attorney-client privilege—not the employee.

It is important for the recipient of an Upjohn warning to understand that company counsel represents the company—not the employee. In that context, any conversation between a worker and the company lawyer should be considered by the worker to be confidential and resist disclosing information discussed to others. Importantly, the company can waive that privilege and disclose information provided to them by the employee to other parties. Another term for an Upjohn warning is a “corporate Miranda warning.”

If you are asked to participate in a company investigation and receive an Upjohn warning, you may be a person of interest in the investigation. If asked to participate in conversations about irregular accounting practices, employment tax disputes, or because of outside scrutiny from an IRS civil or criminal audit—speak with an experienced criminal defense tax attorney before engaging in an interview with investigators to better understand your options.

The Trust Fund Recovery Penalty—What is it?

A Trust Fund Recovery Penalty is used by the Internal Revenue Service (IRS) to ensure the timely and appropriate payment of employment taxes.

The withholding and payment of employment taxes is a routine business operation. Anyone who has received a paycheck knows employers are required to turn over part of your pay to the IRS in the form of Social Security, federal income, and Medicare taxes. When they see the deduction on their pay stub, workers know their employer is depositing their taxes with the IRS. This keeps employees straight with the IRS and makes contributions to future Social Security and other benefits when needed.

To make all this happen, the employer must collect and turn the taxes over to the IRS. We have discussed employment tax disputes before. These problems arise when a business owner or employee with bookkeeping or financial control withholds taxes from workers, but does not pay the money over to the IRS. 

There are a number of reasons individuals fail to turn over funds to the IRS. A struggling business owner may use employment taxes to pay creditors to keep the business afloat, fully intending to pay back the money. Other business owners see the withholding fund as a means to pay personal expenses or boost their quality of life. Regardless of the reason that withheld money is not paid over to the IRS, it is illegal. When the IRS gets wind of it, a Trust Fund Recovery Penalty (TFRP) comes into play.

The TFRP as an enforcement tool

The TFRP is basically intended to deter responsible individuals from failing to carry out their duty to collect and pay employment taxes over to the IRS. A TFRP is a serious threat because it can be enforced against an individual, whereas many employment-related actions are usually protected by the corporate veil.

Here are TFRP basics:

• The amount of the TFRP is the amount of the income taxes that were not paid. It also includes the employees' share of unpaid FICA taxes. Thus, the TFRP makes an individual responsible for the amount that the company did not pay over to the IRS, plus their own tax obligation.
• The IRS process for collecting the TFRP includes identifying the individual responsible for collecting and paying over the taxes and who willfully fails to do so.
• The individual responsible for paying the taxes can see their personal assets seized to pay the obligation.

The TFRP is an effective tool used against individuals who are responsible for paying over-employment taxes to the IRS. If you are a business owner or controller aware of irregularities in your payroll tax payments, speak with an experienced tax attorney sooner than later.

Three Tips for Defending Against Allegations of Employment Tax Fraud

Avenues of response are important if the Internal Revenue Service (IRS) suggests you have a payroll tax issue.

Along with the Tax Division of the Department of Justice (DOJ), and the Offices of U.S. Attorneys, the IRS places a high priority on the pursuit of employment taxes. According to the DOJ, employment taxes make up approximately 70 percent of revenue collected by the IRS. Unpaid employment taxes represent a sizeable amount of the U.S. Tax Gap.

While business operators, owners, or managers may consider the money collected from their workers as theirs until it is not—taxes withheld from the paycheck of an employee belong to the government. Robust pursuit of those taxes is a priority of the IRS. If you are in arrears on your payroll taxes, it is not unreasonable to expect that you will one day receive a letter from the IRS inquiring about the deficit.

Investigation into employment tax disputes can occur on the federal or state level. If the IRS inquires about your payroll tax calculations or the whereabouts of your payments, your initial response can set the tone for the potential civil or criminal tax investigation that may be ahead.

Whenever you hear from the IRS, your first action should be to contact a tax attorney with significant, successful experience working with the IRS. Perhaps there were accidental miscalculations of your payroll deductions—or you may be skimming the wage withdrawals owed by your company. Regardless of the backstory, when you have the attention of the IRS, guidance is needed from counsel who can help you navigate the road ahead.

Tips to consider if you are facing allegations of a tax crime include:

1. Mistakes were made: An important component of a criminal tax charge is the willful and knowing conduct of the defendant. You may have underpaid taxes, withheld inappropriate amounts, or other errors. Perhaps the individual responsible for withholding payroll taxes did not fully understand the process of pay over. A mistake does not constitute criminal conduct—but it will not excuse amounts owed plus fines.
2. Avoiding taxes is not illegal: There are a number of perfectly legal means to avoid—not evade—payment of employment taxes. For payroll, there could be a worker classification dispute or your employment tax collection and submission to the IRS could be completely outsourced. By working carefully through your process and calculations, you may be able to show there was no intent to evade your responsibility, due to an honest mistake or possibly no mistake at all.
3. Reliance on bad advice: It is important to deter the notion that you willfully provided false information to the IRS. If you engaged and relied on an accountant or other professional to manage your payroll, you may have unknowingly provided inaccurate information—or mistakenly interpreted the information you were given.

The aim of your response to the IRS is to halt, defer, or mitigate a potential criminal tax investigation.

One Way to Avoid Tax Mismanagement: Early Interaction Initiative

One of the potential danger zones for business owners can be found in the collection and payment of payroll taxes. Far too often, owners of small businesses find that they fall behind on their bills and are tempted to use employment taxes to temporarily tide them over until things improve. There are a number of problems with this tactic, not the least of which is that the Internal Revenue Service can hit employers hard for the violation, assessing interest and penalties on top of the taxes owed.

Employment tax mismanagement can, in some cases, even result in criminal charges. Now the IRS says it is starting a new program—the Early Interaction Initiative—to identify employers in danger of falling behind on payroll taxes, and then help them to stay in compliance.

According to Accounting Today, the IRS says its guidance to employers will arrive in several forms, including letters and phone messages, and sometimes delivered in person by an agent. As many Cleveland business owners can attest, when an IRS officer knocks on your business door, it is time to have a discussion with a tax attorney.

While agents will invariably seem to be helpful, the reality is that a visit from a cash-strapped federal agency is not an occasion to chat. Take the agent's card, thank the agent for their time, but politely decline to discuss matters. Then give the card to a tax lawyer--someone who knows not only how to protect your rights, but also how to represent you in hearings, seizure procedures and other matters with the IRS.

How the IRS VCSP Might Help With Payroll Tax Issues

Employee classification is a hot button with the Internal Revenue Service (IRS). If you are aware of some classification misalignments in your company, the IRS Voluntary Classification Settlement Program (VCSP) could be the program you have been waiting for.

Employment tax disputes come up all the time. Problems arise when an employer is paying workers cash and not reporting them on their payroll. If there is an injury in the workplace, and there is no workers’ comp in place for the employee, things can get sticky. As well, so-called independent contractors who are essentially acting as employees become a problem at about the same time—when injuries happen, a payroll is audited, or a disgruntled employee finds out they do not have access to social net programs because their employer did not pay into Social Security on their behalf.

The IRS considers the willful misclassification of employees as tax fraud. An employer can avoid paying taxes and workers’ compensation on workers classified as independent contractors. Recent political battles in California resulted in gig workers maintaining their status as independent contractors. For some workers this was a victory, not so for others.

The IRS lays out some basic dividing lines for who is an employee and who is a contractor. The distinctions run along the lines of who controls or provides work assignments, how a worker is paid and reimbursed, and what kind of working relationship and benefits are in place.

For employers who are aware that some portion of their workforce is improperly classified, the IRS offers a voluntary settlement program that provides some benefits for correcting employee misclassifications. Some points of the program include:

• Application to the program is required and the IRS notes, “a taxpayer must have consistently treated the workers to be reclassified as independent contractors or other non-employees, including having filed all required Forms 1099 for the workers to be reclassified under the VCSP for the previous three years to participate.”
• An employer cannot be the subject of a current employment tax audit, or other investigation or litigation, concerning the classification of employees.
• By agreeing to classify the identified workers properly going forward, the employee will pay 10 percent of the tax liability that would otherwise have been due on compensation paid to the workers for the most recent tax year. The employer will not be liable for penalties or interest on the amount and the employer will not be subject to an employment tax audit for prior years on the workers identified for classification.

The VCSP offers an avenue toward compliance at a reduced cost. That said, if there are other questionable tax or employment practices in place at your company, it is a good idea to talk with a reputable tax attorney before applying to the program.

Start Off on the Right Foot: Payroll Tax Tips for Business Start-Ups

There seems to be a million details for entrepreneurs to attend to when starting up a new small business. One of those deserving attention before opening the doors of your commercial venture is payroll. Many a business that has come before yours has gotten themselves into trouble with the IRS over payroll tax issues. You certainly want to be sure to get a handle on any potential risks before opening day.

Before you hire any employees, it makes sense to set up a payroll system that will help you to take care of your obligations to your business, your workers, and the Internal Revenue Service. Failure to withhold payroll taxes or to remit withheld taxes can quickly turn the American dream of business ownership into a nightmare. An online small business publication urges entrepreneurs to take steps to “protect you from incurring expensive IRS penalties."

The first bit of advice from Small Business Trends is to get an EIN. The employment identification number (or employer tax ID) is an absolute must-have, enabling you to report taxes and more to the IRS. Simply contact the agency to obtain an EIN.

Also crucial: Figure out whether your workers will be employees or independent contractors. While it might make financial sense to have contractors doing needed tasks, you don't want to arrive at a spot later where the IRS determines that those contractors were actually employees misclassified.

Of course, once you have a payroll system up and running, begin filing required tax reports to the IRS and other authorities. Again, failure to collect the taxes and pass them along to the IRS can result in significant penalties, and in some cases, criminal charges. Taking care of these matters before problems develop can spare you the expense and headaches of employment tax problems requiring the assistance of a tax attorney.

Submit Your Business 1099s the Easy Way: The IRIS Portal

In a bid to boost customer service, the IRS recently launched a new portal to file required Form 1099 information.

The Information Returns Intake System (IRIS) was launched in January of this year and is aimed at creating a convenient, secure, option for businesses of all sizes that must file Form 1099. A form 1099 is generally required of businesses that made payments to others for a variety of goods and services. Similarly, those who received payments from others should file an appropriate return.

Acting IRS Commissioner Doug O’Donnell said, "The IRS is excited to offer any business, especially small companies, a great new way to electronically file their 1099s for free. This simplifies filing for those issuing 1099s and helps recipients receive information timely. The launch of IRIS can help reduce the millions of paper Forms 1099 we project will be filed in 2023 and demonstrates our commitment to finding useful and innovative ways of reducing paperwork on the business community and others issuing 1099s. This is part of the larger effort underway to make improvements and transform operations at the IRS."

In providing the portal, the IRS hopes to provide benefits that include:

• IRIS will reduce the deluge of paper Form 1099s received by the agency each year, reducing processing time and, hopefully, backlog. As with any form of e-filing, the portal reduces the mailing, storage, and postage costs of continuing to use and submit paper records.
• The portal tracks and maintains 1099s issued from year to year, allowing users to log in and pick up where they left off. Additionally, the IRS plans to acknowledge receipt of filed 1099 Forms in approximately 48 hours, hopefully creating a business-friendly service that users can count on.
• IRIS can identify filing errors and deliver alerts if any information is missing. Filers can also make corrections to forms through the platform and file for automatic extensions.

In the IRIS system, the IRS also gains electronic access to required forms, boosting their compliance capabilities and making it easier to identify fraudulent income tax returns or mismatches between returns filed by taxpayers and the businesses that may have paid them during the year.

Enrollment to the platform is now available and the IRS is hoping early adopters will find the system convenient, easing reliance on the older FIRE system. The IRS bulk filing system will remain in use for at least the next two filing seasons. 

In recent years, the IRS has struggled to respond to customer inquiries and process returns and refunds in a timely way. The IRIS system may ease some of the burdens of paper forms if businesses find the portal will be beneficial to them.

Tips to Protect Yourself from Employment Tax Fraud

Diverting employment taxes is easy—but how do you protect your business and prevent an employment tax dispute with the Internal Revenue Service (IRS)?

In a business of any size, employment tax collection and pay over to the IRS is an important responsibility. Depending on your business or corporate structure, responsibility for payment of employment taxes may land in the finance department, a sole accountant, or an outsourced vendor. Regardless of your business operation, you are responsible for the money owed to the IRS.

Some business owners are deep into deliverables, growth strategies, and staying afloat amid competition. Backroom operations like payroll are easy to delegate. In Ohio and elsewhere, the IRS expects employers to accurately report on income and taxes withheld. Turning over employment taxes to the IRS is part of that. Consider these tips for keeping your books and payments to the IRS above board:

1. Clarity: Classify and onboard employees properly. Misclassification of employees as contractors who are operating as employees is a quick tip-off that there are systemic business problems. Employee misclassification is a form of tax evasion. Whether you onboard your employees or use a service, be sure you can defend your classification.
2. Maintain process: Payroll accounting can be complicated. Employees without adequate training may not have the expertise and current understanding of regulations to handle the job. The individual, team, or vendor you put in place to manage your company finances and withholdings have direct impact on the viability of your company and your ability to respond without fear to an IRS audit. In short—be sure you can trust the people handling your money.
3. Checks and balances: Put checks and bounds in place to avoid payroll tax fraud. Appropriately restrict access to your accounting function and spread responsibility for different payroll functions between personnel. Choose your payroll accounting system software carefully and use alerts to track inconsistent or suspicious activity. Digital time-keeping should be part of the system to avoid payroll errors and collusion between employees and finance personnel in padding hours. Overall, ensure your process is being routinely reviewed and you are signing off on at least monthly reports that your operations are clean.

There is little to no defense for a business owner who claims they delegated their employment tax function to an employee or vendor. The IRS can apply a trust fund recovery penalty (TFRP) against the business owner and anyone in the organization who is responsible for paying withholdings but willfully fails to do so. With a TFRP, your personal income and assets are not protected if the IRS chooses to go after you.

Collection and remittance of payroll taxes is an important function for any business. Failure to account for employee withholdings has long-term consequences for the business owner, the business, and the employees whose social security benefits depend upon those payments.

Watch Out for Whistleblowers

A tip concerning tax fraud or a tax crime to the Internal Revenue Service (IRS) can pay dividends to whistleblowers. How does that work?

To the IRS, whistleblowers provide credible tips or information that leads to collection of money owed to the U.S. Treasury. As you might guess, it involves more than a rumor or something someone heard. Vague commentary and hearsay do not guarantee a payday from the IRS.

Since implementation of the program in 2007, the IRS has paid over $931 million to whistleblowers who enabled the agency to collect $5.1 billion in tax arrears. That is not chump change. According to its latest report, the IRS paid approximately $120 million to whistleblowers in 2019, on the collection of $616 million that would have otherwise gone uncollected.

It makes sense that the IRS payment schedule for whistleblowers is structured to provide a higher award to those who provide information that leads to higher recovery. In the higher bracket, the IRS pays 15 to 30 percent of the amount actually collected. The break point is about at a $2 million threshold.

For information that results in collection of lower amounts, whistleblowers are paid a discretionary award of approximately 15 percent up to $10 million. This is generally the case when a taxpayer in arrears earns $200,000 or less each year in gross income.

Protecting whistleblowers

In 2019, the Taxpayer First Act went into effect. Part of the law made it easier for the IRS to communicate with potential whistleblowers. It also enables the agency to offer protections in exchange for information that might lead to a criminal tax investigation or uncover a tax controversy. The legislation makes it harder for employers and other entities to retaliate against someone who notifies law enforcement—or the IRS. The law aims at making a person who has suffered retaliation “whole” through measures that include

• Receipt of back pay at double the usual rate—with interest
• Award of attorney and other litigation event fees
• Job reinstatement
• Special damages for impact to reputation or emotional well-being

There are bone fide reasons for whistleblowers to pull the plug on criminal tax matters. Being a whistleblower comes at a cost and can pay a certain dividend if the information is legit and helps reduce that tax gap between compliant and non-compliant taxpayers.

Ohio Employers—What to Know About Payroll Taxes

Employers in Ohio and across the U.S. are obligated to collect, report, remit, and document taxes withheld from employees that are paid over to state coffers and the U.S. Treasury. Failure of that duty can lead to personal liability for business taxes or even criminal tax charges.

While employers and employees alike grumble about payroll taxes—these funds enable important services like Medicare and Social Security benefits for retired workers. Federal taxes also fund national defense, community development, social programs, and programs for veterans and foreign affairs.

Just as in other states, Ohio employers are required to withhold state taxes for employees. In Ohio, the law requires income tax be withheld on salaries, tips, bonuses, all wages, and commissions that are paid to an employee. If your employee is an independent contractor, you are not required to withhold Ohio state income tax but may do so by request of the contractor. Most business owners that employ workers also pay federal and state unemployment taxes. As with federal payroll tax, Ohio business taxes can be paid electronically. Ohio offers specific information about remitting payroll taxes to the feds as well.\

What about failure to pay employment taxes?

Because of the importance of payroll taxes to good governance, the Internal Revenue Service (IRS) prioritizes the review and pursuit of employers who do not collect and pay over wages withheld on behalf of their employees. 

For many business owners, proximity to the payroll tax trust fund can lead to temptation. Whether it’s the lure of a luxury item or the fear of a sinking bottom line, otherwise responsible parties use payroll tax funds with an internal promise of “just this once,” or “I’ll pay it back.” We routinely work with clients who made these promises and need good legal help resolving the inevitable consequences.

To discourage the pilfering of payroll taxes, the IRS enforces the Trust Fund Recovery Penalty (TFRP). This penalty for collection of employment taxes due can be assessed even if the business is operating in the black. Consider these quick facts about the TFRP:

• The TFRP consists of your own withheld FICA taxes plus the entirety of unpaid withheld taxes.
• The penalty is charged against the individual or group responsible for collecting and paying over payroll taxes or directing others to do so. In this way, the penalty can be assessed against an individual, a corporate shareholder or director, an officer of the corporation, a third-party payer, the accountant, or others who are responsible for or charged with the duty. The penalty is unique because there is no business shield—if you are responsible for paying the taxes, payment of the missing payroll taxes falls to you.
• To be held accountable, the IRS must find that the responsible person willfully plundered the payroll trust fund, disregarded the law, or was aware of the requirement to pay over withheld payroll taxes.

If you have questions about Ohio state taxes, federal payroll taxes, or are concerned about potential trust fund penalties, speak with an experienced tax attorney before engaging with the IRS.

Payroll Tax Crimes Examples

Payroll taxes fund government programs and agencies. The Internal Revenue Service (IRS) shows no signs of slowing down when it comes to initiating and prosecuting employment tax disputes.

In late June 2020, two owners of three fast food restaurants in Ohio were sentenced to two and three years of probation respectively. They will also pay more than $500,000 in restitution for failing to pay over employment taxes. For a two-year time period, the two neglected to pay $346,773 in employment taxes to the IRS. As we have discussed before, not only can holding on to payroll taxes have a negative impact on your personal liberty, it also creates a shortfall for employees who believe the money coming out of their paycheck is paying their tax own liabilities.

In this case, a Special Agent involved with the IRS criminal investigation noted, “Employers who chose to not play by the rules create an unfair competitive advantage over those that do, they are not only cheating the system and their employees; they are cheating future generations relying on those taxes to help build the future.”

Also in late June 2020, a New Jersey business owner pled guilty to tax evasion and employment tax charges when engaged in a plethora of problematic financial behaviors including failure to file federal tax returns, cashing out business proceeds, and paying employees off the books. Ultimately the defendant failed to pay over $213,000 in payroll taxes.

The man admitted to using his business account and the excess proceeds to pay his mortgage, life insurance, credit card, and other personal expenses. He faces ten years in prison plus fines and probation when sentenced this coming December.

At just about the same time in Greensboro, North Carolina, a business owner was sentenced to 18 months in prison for embezzling payroll taxes from her staffing agency. The catch in this case is that the owner was the subject of a criminal tax investigation for failing to pay employment taxes in 2015. Upon conviction, she served prison time. When released, the woman restarted her business and her payroll tax scheme. Not surprisingly, she was again accused of criminal tax fraud to which she pled guilty. When she walks out a free woman from this stint, she will be on probation for three years and owe more than $2 million in restitution. Ouch to all.

Common thread? Payroll tax schemes oftentimes do not pay. Common mistake? Yielding to the siren song of easy cash and failing to contact good criminal tax defense when they had a chance to make a difference.

Failure to Pay Withholding Taxes

Ensuring your payroll taxes are promptly paid is a key compliance issue for businesses of all sizes.

The Internal Revenue Service (IRS) places a priority on enforcement around the timely and accurate pay over of employee wage withholdings. Employee payroll taxes fund state and local government as well as provide important social security benefits to the worker.

It is not unusual to hear that a business owner or employer collected but did not pay withholding taxes due. A bottom line awash in red can push an owner to “borrow” from payroll taxes to try to straighten out the business. Other times, this particular tax crime occurs when an employer decides they need the money to live a higher quality of life or drive an expensive car. 

The IRS pursues civil and criminal tax investigations against employers who fail to turn over and account for the payroll taxes they owe. But what if the employer has no idea the wage withholding is not being paid?

In October of 2021, a federal jury convicted the Chief Financial Officer (CFO) of an Oklahoma business for employment tax fraud. The CFO, Christina Anglin, was both the Controller and CFO for a business located in Norman, Oklahoma. Her job duties included withholding payroll taxes and paying them over to the IRS. During 2018, Ms. Anglin paid over to the IRS payroll taxes for only one quarter during the year. Overall, the amount she failed to pay over was approximately $920,000. Concurrently, Ms. Anglin approved business expenditures, salaries, and bonuses for executives in the company, including herself. 

Ms. Anglin faces prison time and a good deal of restitution and fines.

In this instance, an employee cooked the books, leaving workers and her employer on the line for the missing money. Despite her culpability, the IRS does not look only to the individual to whom payroll responsibilities are delegated—her employer will also be responsible for amounts due to the IRS and then some. Delegation of duty does not reduce owner liability for payroll tax functions.

Whether your payroll service is in-house or handled by a third-party vendor, ensure you have appropriate checks and balances in place to deter and prevent payroll tax fraud. Your company—and your workers—are depending on it. 

The Results of Spending Employee Withholding

Sometimes an employment tax dispute is more than that. For a New York businessman, stashing the payroll taxes became a habit, and then a tax crime.

It is the responsibility of business owners in the U.S. to withhold certain wage taxes and pay those taxes over to the Internal Revenue Service (IRS) along with payment of their own withholding taxes. Seems pretty simple. Unfortunately, employment tax fraud is common. That pot of cash withheld from employee taxes can sing a siren song to business owners short of cash, trying to improve their bottom line, or just dreaming of a new car or other fancy trimmings.

As we have discussed before, the efforts of the IRS to pursue business owners for their tax obligations is just as common as the crime itself. In the case of Mr. Dean Whittles, an IRS criminal tax investigation found Mr. Whittles failed to pay $617,843 in payroll taxes. An experienced entrepreneur, Mr. Whittle formerly owned several businesses in the Syracuse area, including the popular collegiate watering hole DJ’s on The Hill, Dejon’s Hair Designs, and several other salons.

Between the years of 2016 and 2019, Mr. Whittles collected employee withholding taxes but never quite got them to the IRS. Instead, Mr. Whittles paid other business and personal expenses. While the story is not new, there are underlying points to be made here. As a criminal tax matter, spending employee withholding is likely to be identified by the IRS. Failing to pay over withholding is not a victimless crime. Employees expect the benefits of paying into the American social safety net.

Disputes over employment taxes that have been embezzled never end well for business owners who are held personally and professionally responsible for the lost funds. In this case, it was the business owner who took the funds—and pled guilty to the charge. As a result, he will be repaying $617,843 of those taxes to the IRS. In other cases, an employee siphons off the funds, which still leaves the business owner on the line through Trust Fund Recovery. Business owners are responsible for the payment of withholding taxes regardless of their delegation of the role.

The last point of payroll tax theft and other business-related tax crime—speak with a criminal tax defense attorney as soon as possible if you want to avoid incarceration. Mr. Whittles has divested himself of his New York businesses and moved to sunny Arizona. But then in June of 2022, he was sentenced to two years in prison, followed by three years of supervised release, and must pay the IRS the money he withheld plus an additional $10,000 fine.

Extreme: $10 Million in Past Due Employment Taxes

A Miami business man will spend two years in prison and still owe a tax bill of almost $10 million. There has to be a better way.

Employment taxes are one of those can’t-really-be-avoided aspects of operating or owning a business. As we have discussed, employment taxes are collected by employers to fund an array of programs maintained by the federal government. These include federal income taxes, Social Security, Medicare, and unemployment taxes.

When employers fail to pay taxes to the Internal Revenue Service (IRS), they usually forego payment of all of these program taxes. Regular employment taxes represent a significant portion of taxes collected each year by the IRS to fund federal programs. The IRS robustly reinforces regulations around payroll taxes, pursuing employers and employees who unwittingly fall into non-compliance when their employer withholds their due share of these taxes.

Our firm is focused on tax law and helping clients work through sticky situations like IRS audits, criminal tax investigations, and employment tax disputes. We work frequently with business owners who used payroll taxes to ease a stressed bottom line or to fund lifestyle pursuits. The case of Ricardo Betancourt offers a cautionary tale.

Mr. Betancourt owned several businesses in the South Florida area that provided package delivery service. The businesses were successful, pulling in about $100 million per year in gross revenues. The business employed hundreds of workers. Had Mr. Betancourt properly collected and turned over payroll taxes to the IRS, this story would be one of good businesses decisions and a well-earned fortune. Unfortunately, as often happens in these matters, one or two poor choices can snowball, altering the trajectory of a seemingly successful career.

For reasons unknown, starting somewhere around 2009, Mr. Betancourt ceased to turn over his employment taxes to the IRS. After starting down that road, Mr. Betancourt neglected his payroll taxes until 2016, undoubtedly after the launch of an IRS criminal tax investigation.

Already successful in business, Mr. Betancourt used the approximately $10.8 million he withheld from his employees to fund a bucket list of classic cars, Harley-Davidson motorcycles, expensive baubles and payments for plastic surgery.

For the tax crime, Mr. Betancourt will do the time—24 months to be precise, and he will be paying almost $10 million in restitution and penalties, plus probation.

Whistleblower Exposes Criminal Capers

To the big surprise of no one, Credit Suisse is back in the headlines after a whistleblower leaked information about 18,000 Swiss bank accounts.

The document trove reveals Credit Suisse has been helping the wealthy become wealthier for decades. It is also possible the leak will show Credit Suisse has knowingly been holding billions for account holders whose wealth resulted from criminal activity, tax fraud, and money laundering. Whoops.

Credit Suisse is no stranger to penalties and compliance actions. A piece in The Guardian amply details the institution’s frolic through financial mayhem for decades including bank shredding parties to destroy evidence, bypassing U.S. sanctions on Iran and Sudan, and tax evasion the world over—to name a few.

Back in 2020, an anonymous whistleblower leaked information on the accounts, which were managed by Credit Suisse from the 1940s to the 2010s. The data was provided to one of the largest daily newspapers in Germany, Sueddeutsche Zeitung. The newspaper then shared the information with the Organized Crime and Corruption Reporting Project (OCCRP) and 45 other news outlets like Le Monde, The Guardian, and The New York Times. More than 160 journalists analyzed the banking data.

Like the Panama Papers, the Paradise Papers, and the Luxembourg Leak document, troves examined by the International Consortium of Investigative Journalists (ICIJ), the journalists working through the Credit Suisse leaks have identified the usual ranks of the wealthy who use Swiss accounts. They also identified a host of criminal actors and dictators awash in dirty money that sloshed around the world before quietly coming to rest in Switzerland.

As we have noted before, an offshore tax haven or a foreign bank account is not illegal. These types of accounts can provide a stable place to park currency in an increasingly volatile economy. Beneficial tax regulations can reduce tax liability for U.S. owners—assuming the account is properly reported to the IRS.

With some of the Credit Suisse accounts, however, the account owners are those under investigation for human rights or criminal abuses. The OCCRP identifies Rodoljub Radulovic as a “Balkan drug lord” who was also a leading member of a cocaine smuggling cartel before racking up a series of fraud charges in the U.S. Currently on the lam, Mr. Radulovic apparently had two Credit Suisse accounts. Another sizeable Credit Suisse corporate account was held by the Libyan Arab Foreign Investment Company, largely controlled by the family of Muammar Gaddafi before his death. And the lists go on.

While sensational, this journalism points to the very big role of global financial institutions in maintaining a rigged economy where the illegally wealthy find support and secrecy for their efforts. Said the whistleblower who turned over this data, “The pretext of protecting financial privacy is merely a fig leaf covering the shameful role of Swiss banks as collaborators of tax evaders.”

Results of Paying Under the Table 

Many people get caught up in allegations of tax fraud. In 2020, the king of Philadelphia Cheesesteak and his son were indicted for filing false tax returns and other criminal tax charges. 

Take a hoagie, stuff it with thinly sliced steak and cheese, toast until the bun is crusty, the steak is steaming and the cheese is melted, and top with anything you like. Tony Luke’s, a South Philly eatery owned by Anthony Lucidonio Sr. and son, Nicholas Lucidonio, is a famous local sandwich shop known for its cheesesteak. Unfortunately, it is not only the hoagies getting toasty these days, as the two owners were charged in late summer with cooking the books— keeping two sets of books that may have concealed as much as eight million dollars in receipts from the Internal Revenue Service (IRS). 

Altogether, 82-year-old Mr. Lucidonio Sr., and his son, 54-year-old Nicolas, face more than 20 counts of criminal tax fraud. 

We've previously discussed the problems that can rise when paying cash under the table, that is, cash paid without report to the IRS or payment of payroll taxes. The IRS alleges the duo kept two sets of books. In one set, they recorded, reported, and paid over employment taxes on a portion of their earnings from their business. The pair then paid employees a substantial amount more in cash—without withholding employment taxes or reporting the income. The accountant retained by the pair was directed to prepare false income tax returns and quarterly business returns. 

Of the indictment, the U.S. Attorney General working on the matter, William M. McSwain, stated, “Tony Luke’s is an iconic Philadelphia brand, but that is not what matters in the eyes of the law. These are serious allegations and it should go without saying that everyone has an obligation to follow the law. This alleged scheme victimized honest taxpayers in two ways: first, by hiding more than $8 million in revenue from the IRS and second, by avoiding payroll taxes.” 

The scheme apparently ran from 2006 to 2016, with a burp in 2015 when the pair were engaged in a courtroom franchising and recipe disagreement with Tony Luke Jr., also a son of Mr. Lucidonio. According to the indictment, Anthony and Nicolas were concerned legal troubles might shed light on their activities, so 2015 returns were doctored to report more income—and also included fake income tax deductions to offset the increase in income reported.

If convicted, the father and son face years in prison, extensive fines, and probation. Although facing serious tax charges, they are presumed innocent until found otherwise. Whether you make a million dollars making sandwiches, steel, or in financial transactions, if you become embroiled in an IRS criminal tax investigation—speak with an experienced tax attorney for help mitigating the impact of charges that may be pending against you.