Is there any case law relating to whether 941 payroll tax debt is considered marital debt if one of the spouses was not involved in the business?

Answer

If your business is incorporated, a partnership, or an LLC being taxed as a corporation or partnership, the IRS cannot assess you personally for 941 taxes without assessing the Trust Fund Recovery Penalty. This penalty can only be assessed against a person who was both "willful" and "responsible" in the non-payment of the taxes. By default, a spouse who was not involved in the business should not fall into this category and therefore could not be assessed with any portion of the unpaid 941 taxes.

However, if you live in a community property state the IRS may only assess this debt against one spouse, but will be able to pursue the assets of the marriage because the Trust Fund Recovery Penalty would be a post-marital debt.

If your company was a sole proprietorship or an LLC being taxed as one, the proprietor is automatically liable for the 941 taxes personally (the IRS does not have to make a separate assessment). In this case, only the income and assets of the liable spouse are subject to IRS enforcement (unless, again, you are in a community property state).

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First answer by Marcy. Last edit by TaxManEA. Contributor trust: 57 [recommend contributor]. Question popularity: 120 [recommend question]


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Does anyone know any case law relating to whether 941 payroll tax debt is considered marital debt if one of the spouses was not involved in the business?