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Insolvency Clients and a Potential IRS Trust Fund Penalty Interview

By Kenneth B. Dantinne

You have a client that calls you in a panic. She owns a small business that is currently in a chapter 11 case. Things have been going well for the client as you proceed towards confirmation of a plan. The automatic stay has helped tremendously in keeping company creditors at bay while increasing revenue and reducing expenses. So why the panic-stricken call?

I received one such call not long ago: the client had an IRS Revenue Officer (“RO”) appear at her business — unannounced — and demand an interview due to unpaid taxes. According to the RO, it did not matter that my client was in bankruptcy; the automatic stay did not apply, and the IRS had asked the RO to go to my client’s office. The RO was there to conduct a “Trust Fund Interview,” and there was nothing to prevent her from moving forward. After a brief discussion, the RO agreed to move the interview back a few days so I could attend the interview with my client. I had two days to figure out what, exactly, a Trust Fund Interview entailed.

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