SECTION 9. CONTACT

INFORMATION

The principal author of this announcement is Grace Kim, Office of Associate Chief Counsel (Procedure & Administration). For further information regarding this announcement, contact Dale Veer, Appeals, Tax Policy & Procedure (Alternative Dispute Resolution — Collection) at (651) 726–7430 (not a toll-free number) or by e-mail at Dale.R.Veer@irs.gov .

(1) Whether a person was required to collect, truthfully account for, and pay over income, employment, or excise taxes;

(2) Whether a responsible person willfully failed to collect or truthfully account for and pay over such tax, or willfully attempted in any manner to evade or defeat the payment of such tax;

(3) Whether a taxpayer sufficiently designated a payment to the trust fund portion of the unpaid tax; and

(4) Whether the taxpayer provided sufficient corporate payroll records to establish that a corporate tax deposit was in the amount required by Treas. Reg. § 31.6302–1(c) and therefore was considered a designated payment to be applied to both the trust fund and non-trust fund portions of the employment taxes associated with that specific payroll. See the Note to IRM 5.7.4.3(7).

2. Appropriate issues for arbitration in TFRP cases generally include:

(1) Specific factual determinations concerning whether a person was required to collect, account for, and pay over income, employment, or excise taxes. Common factors include whether the taxpayer:

a. was an officer, director, or shareholder of the corporation; b. had the authority to sign checks; c. exercised significant control over the corporation’s financial affairs; d. had the authority to determine which creditors would be paid; e. was involved in payroll disbursements; f. had control over the voting stock of the corporation; g. was involved in making federal tax deposits; and h. had the ability to hire and fire employees.

(2) Specific factual determinations concerning whether a responsible person willfully failed to collect or truthfully account for and pay over such tax, or willfully attempted in any manner to evade or defeat the payment of such tax. Common factors to be determined include:

a. when the taxpayer became aware of the failure to pay over the withheld tax; b. whether the taxpayer had knowledge of payments to other creditors, including employees, after becoming aware

of the failure to pay over the withheld tax; c. whether there were unencumbered funds available to satisfy pre-existing employment tax liabilities; and d. whether the taxpayer failed to use unencumbered funds to satisfy pre-existing tax liabilities after becoming aware of such liabilities.

(3) A factual determination of the amount designated by the taxpayer as a payment to the trust fund portion of the unpaid tax; and

(4) A factual determination whether the taxpayer provided sufficient corporate payroll records to establish that a corporate tax deposit was in the amount required by Treas.Reg. § 31.6302–1(c) and therefore was considered a designated payment to be applied to both the trust fund and non-trust fund portions of the employment taxes associated with that specific payroll. See Note to IRM 5.7.4.3(7).