What Is a Dual Determination?

So a dual determination happens when you have a situation with a business that either accrues payroll tax liability or sales tax liability. What happens in that case is when you have a payroll tax or sales tax liability with the business, the state or the IRS can hold the officers of the company responsible personally if they did not pay those taxes. So there's certain taxes that we refer to as trust fund taxes and those are monies that are held in trust for the benefit of somebody else so a common example of this has to do with payroll taxes. When you don't pay payroll taxes there's a portion of those payroll taxes that are the employer's responsibility but there's also a portion which are the employees responsibility. So for the employees portion of those taxes, the government can hold you responsible for that. What a dual determination really hinges on is who is responsible for the non-payment of taxes, whether they had knowledge or whether they were aware of the fact that taxes weren't getting paid, and whether they could have done something to pay those taxes. So generally speaking if you are aware of a liability and you chose to pay other creditors that warrant, the government is going to hold you liable. So the dual determination process is a very strategic one because when you have a situation where you have multiple officers

the state or the feds tend to cast a pretty wide net. They'll just loop everybody and they don't care who they catch because it's just more avenues for them to attack and try and get money so when you have a situation where you have unpaid payroll taxes or unpaid sales taxes, you want to plan this out strategically and we actually start planning these things out at the beginning of a collections case. So we go walk into a situation and we realize that there's a business with multiple years of unpaid tax liability even multiple quarters of unpaid payroll taxes then what we'll do is we'll start looking at the analysis from what's going to happen if this goes forward. If there's a dual determination, we assess who's the responsible officer, how are we going to get out of this. When we negotiate a strategy for paying off payroll taxes, we think about the consequences of the individuals that may or may not happen later. The way we do this during audits, we do this for a variety of processes because when you have a business and there's the potential for the officers to be held responsible for the taxes, you have to go through the whole staff. So when there's a dual determination, just know that if there's knowledge and there's willfulness or if there's the opportunity that they could have had to pay the taxes and they didn't, there's the potential for a dual determination.


Sam Brotman, JD, LLM, MBA

Owner and Director of Legal
Brotman Law