CEO of Long Distance Phone Service Reseller Personally Liable for Unremitted Taxes (Brinskele, FedCl)
An individual who was the chairman, president and CEO (“the CEO”) of a company that resold long distance telephone service had to pay the IRS an assessed penalty plus interest. The term “markup,” in the context of the litigation, referred to the margin between the price at which the company purchased long distance minutes and the higher price at which it resold them. The assessed penalty amount represented the portion of the Code Sec. 4251 communications excise tax collected by the company from its customers on the markup.
In the court’s previous opinion (2006-2 USTC 70,261), it held that the company had an obligation to pay over to the IRS any monies it collected for long distance telephone service even if that service was improperly taxed. Here, the “overwhelming evidence,” indicated that the company did in fact collect the Code Sec. 4251 tax on the markup but failed to remit it to the IRS. Further, the CEO was a responsible person for purposes of Code Sec. 6672. In addition to being the company’s CEO, he was its founder, at times its controlling shareholder, and for a period of time signed many of its checks. Finally, the CEO acted willfully in failing to pay the Code Sec. 4251 tax to the IRS; therefore, he was personally liable for the unpaid taxes. He both knew of his obligations to remit the tax collected on the markup and showed a reckless disregard of the company’s tax responsibilities by failing to do so.
Related opinion at 2006-2 USTC ¶70,261.