If a business has any experience owing money to the Florida Department of Revenue (FDOR), then it likely knows that as an open business it faces a serious risk of having its bank account being frozen. Many people don’t know how that changes if the business is closed. With a closed business, the FDOR likely has no bank account to freeze and there are no remaining assets subject to a tax lien. One might conclude that the Department then has no way to try and collect on liabilities from the former business. One would conclude incorrectly. This article addresses how the FDOR likely will try to collect on a closed business through personal liability.
As touched on briefly, a closed business will have limited to no assets for the Department to “go after.” However, this does not mean that it has no options to use to try and collect on the liability. I have other articles that address the Department’s use of a criminal investigation. I now am addressing collections staff efforts. Clearly, the Department computers will send out notices and other mailings “informing” businesses of the liabilities and amounts owed. The closed business might not have updated its mailing address so former staff/officers/managers might not ever receive those mailings. When those efforts are fruitless, the Department will consider using personal liability under section 213.29, Florida Statutes (“F.S.”).
Section 213.29, F.S., states:
Failure to collect and pay over tax or attempt to evade or defeat tax.—Any person who is required to collect, truthfully account for, and pay over any tax enumerated in chapter 201, chapter 206, or chapter 212 and who willfully fails to collect such tax or truthfully account for and pay over such tax or willfully attempts in any manner to evade or defeat such tax or the payment thereof; or any officer or director of a corporation who has administrative control over the collection and payment of such tax and who willfully directs any employee of the corporation to fail to collect or pay over, evade, defeat, or truthfully account for such tax shall, in addition to other penalties provided by law, be liable to a penalty equal to twice the total amount of the tax evaded or not accounted for or paid over. The filing of a protest based upon doubt as to liability or collection of a tax shall not be determined to be an attempt to evade tax under this section. The penalty imposed hereunder shall be in addition to any other penalty imposed or that should have been imposed under the revenue laws of this state, but shall be abated to the extent that the tax is paid. Any penalty may be compromised by the executive director of the Department of Revenue as set forth in s. 213.21. An assessment of penalty made pursuant to this section shall be deemed prima facie correct in any judicial or quasi-judicial proceeding brought to collect this penalty.
One of the first things a reader will notice is the “willfully” and “truthfully” language in the start of the statute. The “mental components” of the statute are included to limit the potentially broad reach of this statute to individuals apart from – or in relation to – a business that owes money. However, the Department attempts to broadly apply this statutory “weapon” through the “payment thereof” language when asserting personal liability against an individual.
For those who unfortunately had a business close that owed the FDOR money, then you most certainly faced that unpleasant call from a FDOR collector calling to “remind” them about an amount owed with the follow up question of “how will you pay the Department?” The common response then is that the business has closed and has no assets, sorry. This is like a triggering phrase that moves collectors into “attack mode.” Upon hearing that phrase, the DOR collector will invariably start asking the person (likely a former officer or manager) about their role in the company, responsibility regarding filing of taxes, and authority to determine who was and wasn’t paid. The emotional response is that the FDOR collector is just making a bad situation worse. That potentially is very true. The collector is asking those questions to document a finding of “knowingly” or “willfully” doing something to fall under the umbrella of 213.29. This can be a painfully broad umbrella.
As you might recall from the above statutory language, the statute imposes a 200% of tax penalty on the amount “evaded or not accounted for or paid over.” The penalty is in addition to any other penalty imposed or should be have been imposed under the revenue laws of this state. The penalty can be applied to more than one person for a closed business. This means the Department can (and often does) keep calling and keep asking questions to assert multiple penalties on a “single” tax liability if it can find more than one potential responsible person who could fall under the jurisdiction of section 213.29.
However, there are some “protections” with the possible FDOR assertion of personal liability. The first is that the statute directly states the penalty “shall be abated to the extent that the tax is paid.” While you might think this clearly means that paying off $1 of the tax liability would remove $2 of the penalty, at least one court would say you are wrong. A current decision indicated that the statute stands for the payment of tax removing only $1 of penalty with the other $1 of penalty remaining. Time will tell if that decision will stand or be “clarified” for future cases.
Regarding other protections, that generally will be left to the individual to raise in the protest process. The NOAPL (notice of assessment personal liability), Form DR-307006, will be directed to the named/cited individual at their personal address. Before you ask about a situation where someone doesn’t receive the addressed NOAPL, I will cite to the Department “policy” that was quoted to me that the Department considers a mailed notice as received even if it is not accepted or returned as undeliverable. So, think about that outcome since it is almost impossible to “reopen” a defaulted NOAPL that was not timely protested.
With the NOAPL, the named individual will have 20 days from the date of the assessment for an informal protest. There is another 60 days that is granted for a formal protest (filed in circuit court or an administrative hearing). The protest should raise all available affirmative defenses – particularly in the formal protest process. This would include any possible statute of limitations defense or arguments for inapplicability of the statute. My word of caution for this is from previous experience with the Department. Having worked there and dealt with the FDOR, I know that mail is frequently metered and then placed for mail pickup. However, that mail might not actually be picked up that day – whether the FDOR person missed the mail that day, mail was limited by number and not taken or simply “misplaced” for a time period. Note that the deadline for timely filing is based on the date of the notice. The above becomes even more important when you realize the FDOR “loves” mailing out these notes on a Friday (likely dated on a Thursday). Assuming it even goes out on a Friday, the weekend will count toward the filing deadline and likely be received later the next week. So, if going by receipt, the filing deadline would be far less than 20 days. Factor in that many taxpayers would not look at page two with the protest rights and it could be many days later before there is any scrutiny or consideration to what is actually being said. I have heard about cases where individuals questioned the authenticity of the letter. This is completely reasonable since there might have been no contact from the FDOR on the issues for months (or years) and the mailing randomly shows up with a “bad” logo in the upper left hand corner of the document and questionably bad print on the associated couple of pages. If I didn’t know better, I would be tempted to think of it as a scamming “distraint” letter designed to attract potential customers.
With these warnings in place, what someone needs to do is seek advice when you get something from the Department of Revenue. Reach out to your – or any – tax professional. My first recommendation would not be to reach out to the Department but that could be done also. I am not sure if the signor on the NOAPL would respond to an email, I would hope that a call to the FDOR would result in accurate information on the status of mailed/asserted personal liability. When confirmed as authentic, the named individual needs to figure out wha rights and arguments exist. Addressing the informal and formal protest options is best saved for another article. Suffice it to say that there are separate conditions and requirements – particularly the formal protest process – that you need to be prepared for when proceeding with a challenge to the NOAPL.
A final word of caution, please make sure you don’t simply ignore the NOAPL. Even if there is no legal or supported basis for the NOAPL (and Department procedures require collectors to find a basis first and not simply assert personal liability against an officer/manager simply based on the title or position), failing to timely respond and waive an affirmative defense means that the NOAPL will default to a personal liability. This will result in the Department filing a tax warrant against the individual. There are protections for homesteaded property. However, that would not protect personal bank accounts or amounts/property that would be titled to the liened person. And, as noted above, a defaulted personal liability is almost impossible to re-open for protest rights.
It is never foolish to question what you received or seek more information on any notice/letter. The more foolish, and riskier, thing is to assume it is nothing and ignore it. You can reach out to us if you have any questions about a form or mailing from the FDOR.
About the author: Mr. Parker is a partner in the Law Offices of Moffa, Sutton, & Donnini, P.A., based in the firm's Tampa office. Mr. Parker's practice concentrates on sales and use tax and includes criminal defense of sales tax cases and state tax audits/controversies proceeding from audit through administrative litigation involving sales and use tax and all other state taxes including reemployment tax, communication service tax, and cigarette & tobacco tax. Mr. Parker also handles matters involving the Department of Business and Personal Regulation and Office of Financial Regulation and the industries they oversee. Mr. Parker received his accounting degree, law degree, and L.L.M. in Taxation from the University of Florida. You can learn more about Matthew on his firm bio.
About the law firm: At the Law Office of Moffa, Sutton, & Donnini, PA, our primary practice area is Florida taxes, with a very heavy emphasis in Florida sales and use tax. We have defended Florida businesses against the Florida Department of Revenue since 1991 and have over 100 years of cumulative sales tax experience within our firm. Our partners are both CPAs/Accountants and Attorneys, so we understand both the accounting side of the situation as well as the legal side. We represent taxpayers and business owners from the entire state of Florida. Call our offices today for a FREE INITIAL CONSULTATION to confidentially discuss how we can help put this nightmare behind you.
Frozen Bank Account in Florida | Florida Sales Tax Lawyer
HOW ARE FL DOR COLLECTION AGENTS EVALUATED? (floridasalestax.com), published June 10, 2014, by James Sutton, CPA, Esq.
FL Tax Audits - Taxpayer Bill of Rights Protects No Rights (floridasalestax.com), published May , 2015, by Matthew Parker, Esq.
Taxpayer Forced to Sign Away Rights to Remit Tax? (floridasalestax.com), published September 2, 2013, by James Sutton, CPA, Esq.