Employers owed the Internal Revenue Service approximately $14.1 billion in delinquent Social Security, Medicare and individual federal income taxes that they had withheld from employee paychecks as of June 30, 2012, and the Internal Revenue Service is being urged to do more to assess penalties against them. 

A new report from the Treasury Inspector General for Tax Administration found that the IRS’s penalty actions against employers who don’t remit payroll taxes are oftentimes neither timely nor adequate. When a business does not remit trust fund taxes withheld from its employees, the IRS can collect the unpaid taxes from the individuals responsible by assessing a Trust Fund Recovery Penalty, or TFRP, when appropriate.

Employees who have taxes withheld from their wages expect the funds to be properly remitted to the IRS, the TIGTA report noted, and businesses that do not pay their taxes have an unfair advantage over businesses that do pay their taxes in full and on time.

TIGTA found that the IRS’s TFRP actions were not always timely or adequate in 99 of the 265 cases it reviewed in a statistically valid sample of cases. For 59 of the 99 cases, the untimely actions averaged more than 500 days to review and process the penalty assessment. Among the problems, TIGTA found incomplete investigations, unsupported collectibility determinations and expired assessment statutes.

When the penalty assessments are not made in a timely way, taxpayers’ financial ability to pay can decline and the IRS’s chances of collecting the overdue taxes decrease. In addition, the government’s interest is not protected if the potential tax assessments are overlooked or missed.

In recent years, TIGTA acknowledged, the IRS has introduced new guidance to better control the Trust Fund Recovery Penalty process and has achieved some improvement in the average time it takes to complete investigations and assess the TFRP. However, significant untimeliness still exists, the report added.

TIGTA recommended that the IRS emphasize to group managers their responsibilities to monitor TFRP cases and ensure that revenue officers take timely TFRP actions; and enhance TFRP communication and training. The IRS should also ensure the completion and adequacy of scheduled system improvements and take appropriate actions to implement the changes, TIGTA suggested. In addition, the report recommends the IRS revise its TFRP guidance regarding the accuracy of the collectibility determination support and controlling the completion of TFRP investigations when installment agreements or currently not collectible closures are approved.

In response to the report, IRS officials agreed with all of TIGTA’s recommendations and plan to take corrective actions.

Karen Schiller, commissioner of the IRS’s Small Business/Self-Employed Division, pointed out that the IRS has significantly improved the timeliness of its TFRP case actions in response to a 2008 report from the Government Accountability Office that found businesses owed billions of dollars in federal payroll taxes. She noted that the IRS’s overall average improvement in the timeliness of TFRP case actions increased from 74 percent in fiscal year 2010 to 93 percent in fiscal 2013, and that the sample TIGTA used for the analysis in its report included cases with actions prior to 2012 before the IRS’s improvements had been fully implemented. 

“As we discussed during the audit, we worked diligently to implement the recommendations made by GAO and to improve the timeliness and adequacy of all TFRP actions,” she wrote. “Limiting your review to case actions that occurred after FY2012, when increased controls and guidance had been completely implemented, would have provided a more accurate picture of our current program.”

The IRS plans to make programming changes in its Automated Trust Fund Recovery system to ensure it works more efficiently and it will provide additional training to managers. 

“We remain committed to continued improvement and recognize the opportunity for additional systemic enhancements to increase our case processing efficiency and accuracy,” said Schiller.