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State & Local Tax Blog
Vice President NOT PERSONALLY Liable for Sales Tax
You don’t see a headline like this very often. Usually, the headline you see is where a Director or Corporate Officer is on the hook for unpaid taxes. In this case (Mitchell, New York Division of Tax Appeals, Administrative Law Judge Unit, DTA No. 822072, February 25, 2010), the director and vice president of a telecommunications company that was later acquired by another company was not personally liable for collecting and remitting New York sales and use tax on behalf of the company.
The ALJ did not find that this particular V.P. was a “responsible person” for sales tax collection and as a result they could not impose the liability no her. This was the decision of the ALJ despite the taxpayer’s positions as vice president and director of the company. Good for her — I’m sure she breathed a huge sigh of relief. To be a “responsible person”, you have to have “sufficient authority or control over the company’s affairs”. The ALJ found she did not have enough control.
How did she manage to escape the long arm of the law?
In this case, the taxpayer did not attend board meetings, nor did she have management responsibilities, nor did she sign the company’s tax returns. She also was not authorized to sign any checks on behalf of the company. Therefore, the notice of determination against the taxpayer was canceled.
So, the lesson here is that it is possible to escape liability on sales tax but you better not have any control whatever on the process. If you do have authority to sign checks and tax returns and you’re an officer of a corporation in NY, and your company has a liability it does not pay, you could be at risk.