The IRS notice proposing a trust fund recovery penalty assessment against you personally, with Form 2751 attached. It starts a 60-day window to protest to the IRS Independent Office of Appeals — the single best procedural opportunity in a TFRP case.

Blog Archives - Page 32 of 51

What Are the California Payroll Tax Penalties If I Don’t Pay?

May 25, 2026June 29, 2016 by Brotman Law

What Are the California Payroll Tax Penalties | Brotman Law

Key Takeaways

Filing of returns and payment of taxes can both be done online or mailed to the EDD.
There are a number of penalties that may be levied for underpayment or non payment of taxes on top of the standard late fees.
Sometimes an employer may operate a dual system, where they report some of the wages paid to a worker, but fail to report others – for example, overtime monies paid in cash.

As an employer, you are obliged to file payroll tax returns and pay payroll taxes. While the obligation can feel burdensome, especially when times are tough and cash flow is slow, this is obligation that you must never delay. Substantial penalties may accrue to any employer who doesn’t file correctly, leaving you in a far worse situation than before.

The CDTFA and California Tax Liens

July 5, 2026June 22, 2016 by Brotman Law

The consequences of falling behind on your taxes are difficult for anyone, but when we are talking about businesses, sales taxes, and the California Department of Tax and Fee Administration (CDTFA), the results can be devastating. The CDTFA is particularly aggressive about investigating and pursuing unpaid sales taxes, and will often demand immediate payment of any liability, no matter what other types of financial responsibilities or consequences the business may be facing. One of the most powerful “weapons” in the CDTFA’s arsenal of collection tactics is the tax lien. Understanding how liens work, why they happen, and what to do if one is recorded against you is important in order to protect your business during times of financial difficulty.

How to Handle an EDD Lien: Notification, Contributions, and Penalties

July 5, 2026May 25, 2016 by Brotman Law

As a business owner, you are responsible for paying payroll taxes and filing periodic reports in accordance with your obligations. If you do not do so, you risk having a lien recorded against your property by the EDD. The details of tax liens are confusing to many people, but it’s important to understand what a lien is, why they are issued, and what your options are to avoid or discharge the lien.

Franchise Tax Board (FTB) Offer in Compromise: California Offer in Compromise 101

May 25, 2026May 18, 2016 by Brotman Law

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Key Takeaways

It is a problem that many individuals or business owners in California have faced.
Generally, if you do not pay the taxes due to the state on time, you will be sent a notice in writing, informing you of how much you owe.
The FTB will expect you to exhaust most other avenues for paying off your tax debt.

It is a problem that many individuals or business owners in California have faced. You may have had a difficult year financially, and when tax time rolls around you discover that you owe more to the California Franchise Tax Board (FTB) than you can afford to pay. If this is your situation, there is light at the end of the tunnel. The FTB is willing to work with cooperative delinquent taxpayers to come up with a solution that works for both parties. One of these solutions is the offer in compromise (OIC). Could it be the right choice for you? You need to understand what is involved, how it can help your situation, whether you are eligible and how to apply before you can make a decision.

California Sales Tax Audit: Everything You Need to Know

May 25, 2026May 11, 2016 by Brotman Law

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Key Takeaways

Facing a sales tax audit is an intense time for any business.
There are many reasons that your business could end up under the scrutiny of a BOE sales tax audit.
These are some of the reasons that grocery store, bars, restaurants, and other businesses in the hospitality sector are frequently audited.

Facing a sales tax audit is an intense time for any business. Even if you are sure that your bookkeeping and records are impeccable, the painstaking process of proving your honesty takes up a lot of time and resources, and hosting an auditor as they comb through your books is always a stressful prospect.

Most California businesses will deal with a sales tax audit at some point, and understanding why and when sales tax audits happen and what to expect is the best way to be prepared when your number comes up.

Am I Going to Be Hit With an Estimated Tax Payments Penalty?

May 25, 2026May 4, 2016 by Brotman Law

Mistakes can be costly if left unchecked

Key Takeaways

Mistakes can be costly if left unchecked
Calculating your estimated tax
All about Underpayment Penalties

For many people, income tax withholding is something that happens automatically: you indicate your tax withholding rate to your employer on a W-4 form for federal taxes and a DE 4 form for California, and the taxes are taken out before you even see your paycheck. If your employer withholds at the correct rate, chance are you’ll end up with a nice refund at tax time.

California Tax Audit Statute of Limitations: Is Time on Your Side?

May 25, 2026April 27, 2016 by Brotman Law

California’s standard statute of limitations for a CDTFA sales tax audit is three years from the date your return was due or filed, whichever is later — after that window closes, the CDTFA generally cannot assess additional tax for that period.

That three-year rule is the baseline under Revenue and Taxation Code § 6487. But the statute has extended periods that can push the window out significantly, and the clock can be tolled or voluntarily extended. Time can be on your side — but only if you know when the clock runs and what keeps it from running.

When Three Years Is Not the Limit

The CDTFA has two extended assessment periods: one for substantial understatement of gross receipts, and one for unfiled returns.

Under RTC § 6487(b), if your reported gross receipts for a period were understated by more than 25%, the CDTFA’s assessment window extends to eight years. A business that reported $1.8 million in taxable sales when the actual figure was closer to $2.5 million is in eight-year territory. Auditors who spot a gap in a targeted year will typically work backward to determine whether the pattern holds across earlier periods.

If you failed to file a sales tax return for a period, there is no statute of limitations — the CDTFA can assess at any time. The same applies to fraud. These are the two situations where the clock never starts running.

How the Statute Gets Extended or Reset

The limitations period can be extended by a waiver, reset by an amended return, or effectively defined through voluntary disclosure — depending on what you do and when.

Waivers are the most common extension mechanism in practice. When a CDTFA auditor needs more time before the statute expires on a period, they will ask you to sign a Statute of Limitations Waiver — typically extending the period by one to two years. Waivers are not legally required. Whether to sign is a strategic decision that depends on how close the statute is to expiring and what the auditor’s findings look like. If the statute is about to expire on a period the audit hasn’t yet examined, refusing the waiver may effectively close that period. That is worth thinking through with counsel before responding.

Amended returns reset the limitations period for the specific filing period covered. If you file an amended return for Q3 2021, the three-year window runs from the amended filing date — not the original due date. Relevant if you’re considering self-correcting errors.

Voluntary Disclosure and the Limitations Period

If you have unreported or underreported sales tax and have not yet been contacted by the CDTFA, voluntary disclosure is an option — but it trades your limitations period rights for reduced penalties and a defined lookback window.

The CDTFA’s Voluntary Disclosure Program allows businesses to come forward, disclose the correct liability, and pay the tax with reduced or waived penalties. In exchange, the CDTFA audits a limited lookback period — often three years — but you waive your right to dispute the period covered. The tradeoff is certainty and reduced cost versus the rights you give up. If the CDTFA has already contacted you, voluntary disclosure is no longer available.

Is Time Actually on Your Side?

Whether the statute works in your favor depends on which periods are at issue, how those years look, and whether the CDTFA has flagged your account.

If you’re past the three-year window for a period, the CDTFA cannot add it to a current audit without establishing that an extended period applies. Auditors sometimes attempt to characterize transactions as a ‘substantial understatement’ to justify reaching the eight-year lookback. If they can show the 25% threshold is met, all years within that window become fair game.

Even within the limitations period, older records create practical challenges for both sides. Documentation is harder to locate, memories are less precise, and reconstructed records carry less weight. That cuts both ways.

Here’s the actual issue: the statute of limitations is a defense, but you generally have to raise it. The CDTFA is not going to tell you an assessment is time-barred. If an auditor is working years outside the limitations period, the objection has to come from you — ideally in writing, before any findings are issued on those periods.

The Waiver Decision

If an auditor asks you to sign a waiver and a period is close to expiring, consult an attorney before responding.

CDTFA audits often run longer than the three-year period allows, and waiver requests are routine. Most taxpayers sign without thinking about it. But if the period has thin records or is one of the last open years the CDTFA can still reach, signing a waiver keeps a door open that might otherwise close. Refusing is not illegal and does not constitute an admission of anything.

Frequently Asked Questions

What is the statute of limitations for a California sales tax audit?

Three years from the date the return was due or filed, whichever is later, under Revenue and Taxation Code § 6487. The period extends to eight years if reported gross receipts were understated by more than 25%. There is no limitation period for unfiled returns or returns tainted by fraud.

Can the CDTFA extend the statute of limitations without my consent?

No, not unilaterally. The CDTFA extends the period by asking you to sign a waiver. You are not required to sign. The CDTFA can also argue the eight-year period applies if it believes your returns substantially understated gross receipts — but that characterization can be contested on audit or appeal.

What happens if I file an amended sales tax return — does it reset the clock?

Yes, for that specific period. Filing an amended return for a given quarter starts the three-year limitations period running again from the date you filed the amendment. This is a consideration when deciding whether to self-correct an error — doing so reopens the period rather than closing it.

If I’m past the three-year window, can the CDTFA still audit that year?

Generally, no — unless the CDTFA can establish that the eight-year period applies (substantial understatement) or that no return was filed. If an auditor attempts to assess a time-barred period, you raise the statute as a defense in writing. The burden shifts to the CDTFA to show that an extended period applies.

If you’ve received a CDTFA audit notice or are trying to understand what years are still open, our overview of California sales tax audit defense covers the process from initial contact through hearing. Book a free 15-minute call to talk through the specific periods in your situation.

Facing a California Sales Tax Audit?

CDTFA audits can result in significant assessments — especially if records are incomplete. The direction of the audit is largely set by how you respond to the initial document request. If you’re at any stage of a sales tax audit, a brief review can clarify what you’re facing.

Discuss My Sales Tax Audit → Or call: (619) 378-3138

Trust Fund Recovery Penalty (TFRP): Personal Liability for Payroll Taxes, Explained

July 12, 2026April 6, 2016 by Brotman Law

The trust fund recovery penalty (TFRP) is the IRS’s tool for collecting unpaid payroll taxes from people instead of companies. Under IRC § 6672, anyone who was responsible for paying over withheld payroll taxes and willfully failed to do so can be held personally liable for 100% of the withheld amount — the employee income tax withholding plus the employees’ share of Social Security and Medicare. The corporate veil does not protect you, and the debt survives bankruptcy. Two questions decide everything: were you a “responsible person,” and was the failure “willful.”

California runs a parallel play against responsible persons under CUIC § 1735 — our California payroll tax attorney page covers both the state and federal tracks.

By Sam Brotman, JD, LLM, MBA · Last updated July 2026

The short version: when a business withholds taxes from employee paychecks and doesn’t send that money to the IRS, the government treats it as theft of funds held in trust — and it will chase the people who made the decisions, not just the company. If you’ve received IRS Letter 1153 or sat through a Form 4180 interview, you are that person, and the clock is already running.

How much is the trust fund recovery penalty?

The penalty equals 100% of the trust fund portion of the unpaid payroll taxes. That portion is the money that came out of employee paychecks:

Federal income tax withheld from wages
The employees’ share of Social Security and Medicare (FICA)

It does not include the employer’s matching share of FICA, the employer’s own unemployment taxes, or penalties and interest assessed against the business. Those remain company debts. But on a payroll of any size, the trust fund portion alone routinely reaches six figures — and once assessed against you personally, it collects like any other personal tax debt: federal tax liens on your home, levies on your bank accounts, garnishment of your wages.

One more feature that surprises people: the IRS can assess the TFRP against several people for the same dollars. Every responsible person is jointly and severally liable for the full amount. The government won’t collect it twice, but it will pursue whoever is easiest to collect from, and leave the responsible persons to sort out contribution among themselves under § 6672(d).

The two-part test: responsible person and willfulness

The whole case hinges on two questions, and both have to go against you.

1. Were you a “responsible person”?

Responsibility is about status, duty, and authority — not job titles. The IRS and the courts look at who had the power to decide which bills got paid. Factors that matter:

Check-signing authority on the operating account
Control over payroll and the authority to hire and fire
Officer, director, or significant ownership status
Authority to make federal tax deposits and sign Form 941s
Day-to-day control over which creditors got paid

The net is wider than most people expect. Courts have found CFOs, controllers, bookkeepers, outside accountants, and even lenders responsible where they actually controlled disbursements. The flip side is also true: a title alone doesn’t make you responsible if you had no real authority — a defense we’ve used for officers who were figureheads on paper while someone else ran the money.

2. Was the failure “willful”?

Willfulness here does not mean malice or intent to defraud. It means you knew the taxes were unpaid and paid other creditors anyway — or recklessly disregarded an obvious risk that they weren’t being paid. The classic fact pattern is a cash-strapped business where the owner keeps paying rent, suppliers, and net payroll while the withheld taxes ride. Every one of those payments, made after you knew about the unpaid taxes, is evidence of willfulness.

That is the trap in the “keep the doors open” instinct. Using withheld taxes as working capital feels like borrowing; the IRS treats it as conversion of the government’s money.

How the IRS builds a TFRP case

The TFRP doesn’t arrive out of nowhere. It follows a defined path, and there are exits along the way — if you use them in time.

The Form 4180 interview

A revenue officer investigating the business will ask to interview you using Form 4180, the Report of Interview with Individual Relative to Trust Fund Recovery Penalty. This is not a friendly chat. The form walks through exactly the responsibility and willfulness factors above, and your answers become the government’s evidence. You are entitled to have representation at the interview — and in our experience, the 4180 is where most TFRP cases are won or lost. Do not sit for it alone, and do not guess at answers you don’t know.

Letter 1153 and Form 2751 — the 60-day window

If the revenue officer concludes you’re liable, the IRS issues Letter 1153, proposing the assessment, with Form 2751 attached showing the amount. Signing Form 2751 agrees to the assessment. What matters is the deadline: you have 60 days to file a written protest and take the case to the IRS Independent Office of Appeals. Appeals can and does reverse or reduce proposed TFRP assessments — on responsibility grounds, willfulness grounds, or computation. Miss the 60 days, and the IRS assesses; your remaining remedies get slower and more expensive.

Assessment and collection

Once assessed, the TFRP is a personal tax liability. Liens and levies follow the standard collection playbook, and the penalty is not dischargeable in bankruptcy. The assessment statute gives the IRS three years from April 15 of the year after the underlying Form 941s were treated as filed, so decisions made in one bad year can surface as personal assessments two or three years later — often after the responsible person has moved on from the company.

Defenses that actually work

You weren’t responsible. No real authority over disbursements — title without control, or authority that began only after the taxes went unpaid. Timing matters: responsibility is measured quarter by quarter.
You weren’t willful. You didn’t know, and had no reason to know — for example, a genuinely deceived owner whose controller concealed the non-payment, who paid no other creditors ahead of the IRS once the problem surfaced.
The numbers are wrong. The trust fund computation frequently includes employer-share amounts or quarters outside your tenure. Form 4183 worksheets deserve line-by-line scrutiny.
Someone else was the responsible person. Not a popular argument at the dinner table, but the statute targets the people who actually controlled the money.

If the TFRP has already been assessed

You still have options, in roughly this order of preference:

Pay a divisible portion and sue for refund. The TFRP is a divisible tax — you can pay the trust fund portion for a single employee for a single quarter, file a refund claim, and litigate the whole liability from that foothold.
Offer in compromise — doubt as to liability if the responsibility or willfulness findings are weak, or doubt as to collectibility based on your finances.
Installment agreement to manage collection while protecting assets.
Currently-not-collectible status where circumstances warrant.

And if the business is still operating with payroll tax debt: any voluntary payment the company makes can be designated in writing to the trust fund portion. Designated payments reduce the exposure of every responsible person; undesignated payments get applied wherever the IRS pleases — usually to the non-trust-fund portion first, which keeps your personal exposure alive. This single piece of paperwork discipline saves people real money.

How to avoid the TFRP entirely

The rule is unglamorous: the withheld taxes are never your money. If cash is tight, the trust fund portion gets deposited before rent, before suppliers, before your own salary. Use EFTPS on a schedule, reconcile deposits against each payroll run, and if the business is already behind, get the current quarter compliant first — the IRS deals very differently with a business that stopped the bleeding. If you’re facing an EDD payroll tax audit on the state side, the same discipline applies to California withholding.

What to do next

If a revenue officer has contacted you, a 4180 interview is being scheduled, or Letter 1153 is in hand, the sequence matters: establish the timeline of who knew what and when, gather the bank records showing who signed and who decided, and get the 60-day protest calendared before anything else. We handle IRS collections defense and tax debt resolution for exactly these cases, and the earlier we’re in, the more of the case there is to win. Book a free 15-minute call and we’ll tell you where your case actually stands.

Trust fund recovery penalty: FAQs

What two factors does the IRS consider for the trust fund recovery penalty?

Responsibility and willfulness. You must have had the status, duty, and authority to pay the withheld taxes over to the IRS, and you must have known (or recklessly ignored) that they weren’t being paid while other creditors were. Both are required — defeating either one defeats the penalty.

Can the TFRP be assessed against more than one person?

Yes. Every responsible person is jointly and severally liable for the full trust fund amount. The IRS collects once but can assess many, and responsible persons who pay more than their share have a contribution right against the others under IRC § 6672(d).

Is the trust fund recovery penalty dischargeable in bankruptcy?

No. Trust fund taxes survive bankruptcy. That is a large part of why the penalty is worth fighting at the proposal stage rather than managing after assessment.

How long does the IRS have to assess the TFRP?

Generally three years, measured from April 15 of the year following the year the underlying quarterly employment returns were treated as filed. Fraud and non-filing extend the window.

What is Letter 1153?

The IRS notice proposing a trust fund recovery penalty assessment against you personally, with Form 2751 attached showing the computation. It starts a 60-day window to protest to the IRS Independent Office of Appeals — the single best procedural opportunity in a TFRP case.

An Introduction to Payroll Tax Fraud: EDD Investigations

May 25, 2026March 30, 2016 by Brotman Law

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Payroll tax fraud can occur either through deliberate criminal activity or simply because an employer or employee has provided inaccurate or incomplete information. The Employment Development Department (EDD) takes payroll tax fraud extremely seriously, so it is imperative that you understand the ways in which fraud can occur and take the necessary steps to avoid committing fraud.

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Income Withholding Order: How to Process an EWOT

July 5, 2026March 16, 2016 by Brotman Law

Man handing over a check for ERC refund process 2025.

Key Takeaways

As an employer, you may receive an income withholding order in relation to one of your employers.
If a higher priority order, such as a court ordered withholding order for child support or JWOT, is issued after an EWOT, it takes priority. The EWOT will then be calculated as the remainder of 25% of the disposable income, if any.
If a second EWOT is issued when a first EWOT is in effect, the first EWOT remains in effect and is not displaced. The second issuer should be notified that the first EWOT is in place and you are already withholding on that order.

Being served with an income withholding order can be a disconcerting experience as an employer. These orders can come from a variety of sources, but they are all legally binding and require careful handling. Understanding how these orders work, what your obligations are regarding them, and how to comply with them is very important. Failing to do so can have severe consequences for you and your business.