Page 1 of 1

Discharging SBOE Taxes Assessed to Officers of Corporation

Posted: Thu May 01, 2014 9:49 am
by Yahoo Bot

That appearsto be at odds with the cases holdingCA sales taxes are use taxes measured on gross income.
Perhaps way back then when you and Jim were starting out, the law was different.
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
On Thursday, May 1, 2014 6:55 AM, cdcbaa wrote:
California.
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
On Apr 28, 2014, at 10:12 AM, "Peter M. Lively" wrote:
>Dennis,
>
>
>Which state was your client collecting sales tax for?
>
>
>Peter
>
>Peter M. Lively, J.D., M.B.A.
>Law Office of Peter M. Lively * Personal Financial Law Center I
>11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
>Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310)
391-2462
>On Friday, April 25, 2014 4:43 PM, cdcbaa wrote:
>
>
>Jeff:
>
>
>What is worse is, it is a crime to collect sales taxes and not turn them over to the state. I had a client get 5 years for this crime. So, they are not just nondischargeable, they are criminal. I have always considered unpaid sales taxes like the third rail.
>
>
>Dennis
>
>Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
>
>On Apr 24, 2014, at 7:57 PM, wrote:
>
>
>
>>I'm glad I posted. I know now to refer these cases out. I'm moreflusteredthan ever.
>>
>>So, the PC who called last week with 10 year old SBOE salestaxes from a gas station he closed 10 years ago, who has moved to Indiana, and had the Cal SBOE drain his bank account last week, and who says the taxes were for a return that the company filed, but did not pay...what doI tell him? File an individual return for the liability that the company filed a return for 10 years ago and go underground for 2 years?
>>
>>How about: "Call Peter Lively or Mark Markus orJohn Faucher?">>
>>I'm soooo confused.
>>
>>GO KINGS GO!
>>
>>-Jeffrey B. Smith**
>>CURD, GALINDO & SMITH, L.L.P.
>>301 East Ocean Blvd. #1700
>>Long Beach, CA 90802
>>(562) 624-1177
>>(562) 624-1178 fax
>>(310) 993-6560 cellular
>>www.expertbk.com
>>**Certified By The State Bar
>>Of California As A Specialist
>>In Bankruptcy Law
>>
>>
>>---In cdcbaa@yahoogroups.com, wrote :
>>
>>
>>The responsibleofficer assessment following the entity's failure to pay. The entity could have filed the returns and been assessed based upon the returns, then failed to pay. I believe these are the facts of Ilko.
>>
>>Peter M. Lively, J.D., M.B.A.
>>Law Office of Peter M. Lively * Personal Financial Law Center I
>>11268 Washington Boulevard, Suite 203, Culver City, California
90230-4647
>>Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
>>On Thursday, April 24, 2014 3:41 PM, John Faucher wrote:
>>
>>
>>"In Ilko, the debtor has not yet been assessed prior to the bankruptcy petition date, but was still subject to assessment so the CA sales taxes (excise not trust fund) was not discharged."
>>
>>
>>
>>And how does an individual debtor get assessed for sales taxes incurred by his business? Either by having the taxing authority find him and make the assessment on his behalf, in which case there is no return filed (because the return filed by the business does not assess taxes against the individual), or he files his own return. If the taxing authority makes the assessment, no return, therefore no discharge.
>>
>>
>>- John D. Faucher
>>818/889-8080
>>
>>
>>
>>________________________________
>>To: "cdcbaa@yahoogroups.com"
>>Sent: Thursday, April 24, 2014 3:10 PM
>>Subject: Re: [cdcbaa] Discharging SBOE Taxes Assessed to Officers of Corporation
>>
>>
>>
>>
>>Shank dealt with Washingtonlaw where sales taxes are trust fund taxes, not excise taxes, therefore not dischargeable.
>>
>>
>>In CA, sales taxes or use taxes are taxes imposed on the retainer for the privilege of doing business, therefore an excise tax, and dischargeable under 507(a)(8)(E) if arising from a transaction over three years prior to the bankruptcy filing. CA requires sales tax returns (quarterly), so not dischargeable if the returns were not filed more than two years before the bankruptcy petition date. Because it is measured on gross receipts it is also subject to the 240 day assessment rule under 507(a)(8)(A).
>>
>>
>>In Ilko, the debtor
has not yet been assessed prior to the bankruptcy
petition date, but was still subject to assessment so the CA sales taxes (excise not trust fund) was not discharged.
>>
>>
>>
>>Peter M. Lively, J.D., M.B.A.
>>Law Office of Peter M. Lively * Personal Financial Law Center I
>>11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
>>Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
>>On Thursday, April 24, 2014 2:02 PM, "jsmith@..." wrote:
>>
>>
>>Group:
>>
>>Can I get a little more input from everyone/someone on this thread? I might not agree (very respectfully) with Mark on this one, but I'm not sure.
>>
>>I read In re Ilko, 651 F.3d 1049
(9th Cir. 2011). Its mind numbing. It cites as good lawShank v. State Dep't of Revenue (In re
Shank), 792 F.2d 829 (9th Cir.1986).
>>
>>Shank says that sales taxes are "excise" taxes falling within two categories: those owed
personally by a retailer, thus falling within 507(a)(8)(E) (the excise tax provision) and those incurred by
a retailer's customers, which are collected by the retailer under the authority
of the state, held in trust, and then remitted by the retailer to the state,
falling within 507(a)(8)(C) (the trust fund tax provision). Ilko agrees that this is what Shank stands for.
>>
>>If the sales tax is the former (i.e., "owed personally by a retailer") and therefore of the kind in 507(a)(8)(E), then I agree tht they are dischargeable if they are old enough or qualifyunder 507(a)(8)(E) (i) or (ii), perIlko.
>>
>>ButI thinkShankisstillgood law as to liability for unremmitted retail sales taxes that were owed by the customers at the time of purchase and unremitted by the business to the government. That is that they are trust fund taxes and thus NEVER dischargeable? I hope I'm
wrong and missed a subsequent case here, but I find nothing on Westlaw.
>>
>>My next question is, if I am right, can someone give me a paractical answer as to what the difference in the two "sales" taxes are? What exatly is a sales tax that is "owed personally by a retailer", as opposed to "those incurred by a retalier's customers which are collected by the retailer...held in trust..then remitted..". Is this like a tobacco or liquor tax? Isn't that something also being paid by the purchaser but collected by the retailer?
>>
>>I am then further perplexed when Inote that in Ilko, the taxpayer: "was obligated to pay sales taxes to the State of California under Cal. Rev. & Tax Code 6051, which imposes a tax on all retailers [f]for the
privilege of selling tangible personal property at retail....".s, which makes Mark's reading of the case seem correct. TheIlko court found the taxes to be 507(a)(8)(E),excise taxes (but not dischargeable since they were still assessable on those facts), but NOT 507(a)(8)(C)trust fund taxes. I cannot for the life of me figure out the difference. Can anyone break it down for me?
>>
>>I get questions about BOE sales taxesthis twice a year or soand contrary to Mark's post, I am in the habit of telling clients that sales taxes are just not dischargeable. I'd like to know that I have that wrong, but if so i'd like to know why. HELP?
>>
>>And, GO KINGS GO!
>>-Jeffrey B. Smith**
>>CURD, GALINDO & SMITH, L.L.P.
>>301 East Ocean Blvd. #1700
>>Long Beach, CA 90802
>>(562) 624-1177
>>(562) 624-1178 fax
>>(310) 993-6560 cellular
>>www.expertbk.com
>>**Certified By The State Bar
>>Of California
As A Specialist
>>In Bankruptcy Law
>>
>>
>>
>>
>>
>>
>>
>>
>
>

The post was migrated from Yahoo.

Discharging SBOE Taxes Assessed to Officers of Corporation

Posted: Thu May 01, 2014 6:54 am
by Yahoo Bot

California.
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Apr 28, 2014, at 10:12 AM, "Peter M. Lively" wrote:
>
> Dennis,
>
> Which state was your client collecting sales tax for?
>
> Peter
>
> Peter M. Lively, J.D., M.B.A.
> Law Office of Peter M. Lively * Personal Financial Law Center I
> 11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
> Telephone: (310) 391-2400 * Toll Free: (800) 307-3328 * Fax: (310) 391-2462
> On Friday, April 25, 2014 4:43 PM, cdcbaa wrote:
>
> Jeff:
>
> What is worse is, it is a crime to collect sales taxes and not turn them over to the state. I had a client get 5 years for this crime. So, they are not just nondischargeable, they are criminal. I have always considered unpaid sales taxes like the third rail.
>
> Dennis
>
> Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
>
>
>> On Apr 24, 2014, at 7:57 PM, wrote:
>>
>>
>> I'm glad I posted. I know now to refer these cases out. I'm more flustered than ever.
>>
>> So, the PC who called last week with 10 year old SBOE sales taxes from a gas station he closed 10 years ago, who has moved to Indiana, and had the Cal SBOE drain his bank account last week, and who says the taxes were for a return that the company filed, but did not pay...what do I tell him? File an individual return for the liability that the company filed a return for 10 years ago and go underground for 2 years?
>>
>> How about: "Call Peter Lively or Mark Markus or John Faucher?" How about: "Call an Indiana BK lawyer?"
>>
>> I'm soooo confused.
>>
>> GO KINGS GO!
>> -Jeffrey B. Smith**
>> CURD, GALINDO & SMITH, L.L.P.
>> 301 East Ocean Blvd. #1700
>> Long Beach, CA 90802
>> (562) 624-1177
>> (562) 624-1178 fax
>> (310) 993-6560 cellular
>> www.expertbk.com
>> **Certified By The State Bar
>> Of California As A Specialist
>> In Bankruptcy Law
>>
>>
>> ---In cdcbaa@yahoogroups.com, wrote :
>>
>> The responsible officer assessment following the entity's failure to pay. The entity could have filed the returns and been assessed based upon the returns, then failed to pay. I believe these are the facts of Ilko.
>>
>> Peter M. Lively, J.D., M.B.A.
>> Law Office of Peter M. Lively * Personal Financial Law Center I
>> 11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
>> Telephone: (310) 391-2400 * Toll Free: (800) 307-3328 * Fax: (310) 391-2462
>> On Thursday, April 24, 2014 3:41 PM, John Faucher wrote:
>>
>> "In Ilko, the debtor has not yet been assessed prior to the bankruptcy petition date, but was still subject to assessment so the CA sales taxes (excise not trust fund) was not discharged."
>>
>> And how does an individual debtor get assessed for sales taxes incurred by his business? Either by having the taxing authority find him and make the assessment on his behalf, in which case there is no return filed (because the return filed by the business does not assess taxes against the individual), or he files his own return. If the taxing authority makes the assessment, no return, therefore no discharge.
>>
>> - John D. Faucher
>> 818/889-8080
>>
>> To: "cdcbaa@yahoogroups.com"
>> Sent: Thursday, April 24, 2014 3:10 PM
>> Subject: Re: [cdcbaa] Discharging SBOE Taxes Assessed to Officers of Corporation
>>
>>
>> Shank dealt with Washington law where sales taxes are trust fund taxes, not excise taxes, therefore not dischargeable.
>>
>> In CA, sales taxes or use taxes are taxes imposed on the retainer for the privilege of doing business, therefore an excise tax, and dischargeable under 507(a)(8)(E) if arising from a transaction over three years prior to the bankruptcy filing. CA requires sales tax returns (quarterly), so not dischargeable if the returns were not filed more than two years before the bankruptcy petition date. Because it is measured on gross receipts it is also subject to the 240 day assessment rule under 507(a)(8)(A).
>>
>> In Ilko, the debtor has not yet been assessed prior to the bankruptcy petition date, but was still subject to assessment so the CA sales taxes (excise not trust fund) was not discharged.
>>
>>
>> Peter M. Lively, J.D., M.B.A.
>> Law Office of Peter M. Lively * Personal Financial Law Center I
>> 11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
>> Telephone: (310) 391-2400 * Toll Free: (800) 307-3328 * Fax: (310) 391-2462
>> On Thursday, April 24, 2014 2:02 PM, "jsmith@..." wrote:
>>
>> Group:
>>
>> Can I get a little more input from everyone/someone on this thread? I might not agree (very respectfully) with Mark on this one, but I'm not sure.
>>
>> I read In re Ilko, 651 F.3d 1049 (9th Cir. 2011). Its mind numbing. It cites as good law Shank v. State Dep't of Revenue (In re Shank), 792 F.2d 829 (9th Cir.1986).
>>
>> Shank says that sales taxes are "excise" taxes falling within two categories: those owed personally by a retailer, thus falling within 507(a)(8)(E) (the excise tax provision) and those incurred by a retailer's customers, which are collected by the retailer under the authority of the state, held in trust, and then remitted by the retailer to the state, falling within 507(a)(8)(C) (the trust fund tax provision). Ilko agrees that this is what Shank stands for.
>>
>> If the sales tax is the former (i.e., "owed personally by a retailer") and therefore of the kind in 507(a)(8)(E), then I agree tht they are dischargeable if they are old enough or qualify under 507(a)(8)(E) (i) or (ii), per Ilko.
>>
>> But I think Shank is still good law as to liability for unremmitted retail sales taxes that were owed by the customers at the time of purchase and unremitted by the business to the government. That is that they are trust fund taxes and thus NEVER dischargeable? I hope I'm wrong and missed a subsequent case here, but I find nothing on Westlaw.
>>
>> My next question is, if I am right, can someone give me a paractical answer as to what the difference in the two "sales" taxes are? What exatly is a sales tax that is "owed personally by a retailer", as opposed to "those incurred by a retalier's customers which are collected by the retailer...held in trust..then remitted..". Is this like a tobacco or liquor tax? Isn't that something also being paid by the purchaser but collected by the retailer?
>>
>> I am then further perplexed when I note that in Ilko, the taxpayer: "was obligated to pay sales taxes to the State of California under Cal. Rev. & Tax Code 6051, which imposes a tax on all retailers [f]for the privilege of selling tangible personal property at retail....". Somehow, though, Ilko found that these taxes were NOT "trust fund" taxes, which makes Mark's reading of the case seem correct. The Ilko court found the taxes to be 507(a)(8)(E), excise taxes (but not dischargeable since they were still assessable on those facts), but NOT 507(a)(8)(C) trust fund taxes. I cannot for the life of me figure out the difference. Can anyone break it down for me?
>>
>> I get questions about BOE sales taxes this twice a year or so and contrary to Mark's post, I am in the habit of telling clients that sales taxes are just not dischargeable. I'd like to know that I have that wrong, but if so i'd like to know why. HELP?
>>
>> And, GO KINGS GO!
>> -Jeffrey B. Smith**
>> CURD, GALINDO & SMITH, L.L.P.
>> 301 East Ocean Blvd. #1700
>> Long Beach, CA 90802
>> (562) 624-1177
>> (562) 624-1178 fax
>> (310) 993-6560 cellular
>> www.expertbk.com
>> **Certified By The State Bar
>> Of California As A Specialist
>> In Bankruptcy Law
>>
>>
>>
>>
>>
>>
>>
>>
>
>
>
>
On Apr 28, 2014, at 10:12 AM, "Peter M. Lively" <petermlively2000@yahoo.com> wrote:


The post was migrated from Yahoo.

Discharging SBOE Taxes Assessed to Officers of Corporation

Posted: Mon Apr 28, 2014 10:12 am
by Yahoo Bot

Dennis,
Which state was your client collecting sales tax for?
Peter
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
On Friday, April 25, 2014 4:43 PM, cdcbaa wrote:
Jeff:
What is worse is, it is a crime to collect sales taxes and not turn them over to the state. I had a client get 5 years for this crime. So, they are not just nondischargeable, they are criminal. I have always considered unpaid sales taxes like the third rail.
Dennis
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
On Apr 24, 2014, at 7:57 PM, wrote:
>I'm glad I posted. I know now to refer these cases out. I'm moreflusteredthan ever.
>
>So, the PC who called last week with 10 year old SBOE salestaxes from a gas station he closed 10 years ago, who has moved to Indiana, and had the Cal SBOE drain his bank account last week, and who says the taxes were for a return that the company filed, but did not pay...what doI tell him? File an individual return for the liability that the company filed a return for 10 years ago and go underground for 2 years?
>
>How about: "Call Peter Lively or Mark Markus orJohn Faucher?">
>I'm soooo confused.
>
>GO KINGS GO!
>
>-Jeffrey B. Smith**
>CURD, GALINDO & SMITH, L.L.P.
>301 East Ocean Blvd. #1700
>Long Beach, CA 90802
>(562) 624-1177
>(562) 624-1178 fax
>(310) 993-6560 cellular
>www.expertbk.com
>**Certified By The State Bar
>Of California As A Specialist
>In Bankruptcy Law
>
>
>---In cdcbaa@yahoogroups.com, wrote :
>
>
>The responsibleofficer assessment following the entity's failure to pay. The entity could have filed the returns and been assessed based upon the returns, then failed to pay. I believe these are the facts of Ilko.
>
>Peter M. Lively, J.D., M.B.A.
>Law Office of Peter M. Lively * Personal Financial Law Center I
>11268 Washington Boulevard, Suite 203, Culver City, California
90230-4647
>Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
>On Thursday, April 24, 2014 3:41 PM, John Faucher wrote:
>
>
>"In Ilko, the debtor has not yet been assessed prior to the bankruptcy petition date, but was still subject to assessment so the CA sales taxes (excise not trust fund) was not discharged."
>
>
>
>And how does an individual debtor get assessed for sales taxes incurred by his business? Either by having the taxing authority find him and make the assessment on his behalf, in which case there is no return filed (because the return filed by the business does not assess taxes against the individual), or he files his own return. If the taxing authority makes the assessment, no return, therefore no discharge.
>
>
>- John D. Faucher
>818/889-8080
>
>
>
>________________________________
>To: "cdcbaa@yahoogroups.com"
>Sent: Thursday, April 24, 2014 3:10 PM
>Subject: Re: [cdcbaa] Discharging SBOE Taxes Assessed to Officers of Corporation
>
>
>
>
>Shank dealt with Washingtonlaw where sales taxes are trust fund taxes, not excise taxes, therefore not dischargeable.
>
>
>In CA, sales taxes or use taxes are taxes imposed on the retainer for the privilege of doing business, therefore an excise tax, and dischargeable under 507(a)(8)(E) if arising from a transaction over three years prior to the bankruptcy filing. CA requires sales tax returns (quarterly), so not dischargeable if the returns were not filed more than two years before the bankruptcy petition date. Because it is measured on gross receipts it is also subject to the 240 day assessment rule under 507(a)(8)(A).
>
>
>In Ilko, the debtor
has not yet been assessed prior to the bankruptcy
petition date, but was still subject to assessment so the CA sales taxes (excise not trust fund) was not discharged.
>
>
>
>Peter M. Lively, J.D., M.B.A.
>Law Office of Peter M. Lively * Personal Financial Law Center I
>11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
>Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
>On Thursday, April 24, 2014 2:02 PM, "jsmith@..." wrote:
>
>
>Group:
>
>Can I get a little more input from everyone/someone on this thread? I might not agree (very respectfully) with Mark on this one, but I'm not sure.
>
>I read In re Ilko, 651 F.3d 1049
(9th Cir. 2011). Its mind numbing. It cites as good lawShank v. State Dep't of Revenue (In re
Shank), 792 F.2d 829 (9th Cir.1986).
>
>Shank says that sales taxes are "excise" taxes falling within two categories: those owed
personally by a retailer, thus falling within 507(a)(8)(E) (the excise tax provision) and those incurred by
a retailer's customers, which are collected by the retailer under the authority
of the state, held in trust, and then remitted by the retailer to the state,
falling within 507(a)(8)(C) (the trust fund tax provision). Ilko agrees that this is what Shank stands for.
>
>If the sales tax is the former (i.e., "owed personally by a retailer") and therefore of the kind in 507(a)(8)(E), then I agree tht they are dischargeable if they are old enough or qualifyunder 507(a)(8)(E) (i) or (ii), perIlko.
>
>ButI thinkShankisstillgood law as to liability for unremmitted retail sales taxes that were owed by the customers at the time of purchase and unremitted by the business to the government. That is that they are trust fund taxes and thus NEVER dischargeable? I hope I'm
wrong and missed a subsequent case here, but I find nothing on Westlaw.
>
>My next question is, if I am right, can someone give me a paractical answer as to what the difference in the two "sales" taxes are? What exatly is a sales tax that is "owed personally by a retailer", as opposed to "those incurred by a retalier's customers which are collected by the retailer...held in trust..then remitted..". Is this like a tobacco or liquor tax? Isn't that something also being paid by the purchaser but collected by the retailer?
>
>I am then further perplexed when Inote that in Ilko, the taxpayer: "was obligated to pay sales taxes to the State of California under Cal. Rev. & Tax Code 6051, which imposes a tax on all retailers [f]for the
privilege of selling tangible personal property at retail....".s, which makes Mark's reading of the case seem correct. TheIlko court found the taxes to be 507(a)(8)(E),excise taxes (but not dischargeable since they were still assessable on those facts), but NOT 507(a)(8)(C)trust fund taxes. I cannot for the life of me figure out the difference. Can anyone break it down for me?
>
>I get questions about BOE sales taxesthis twice a year or soand contrary to Mark's post, I am in the habit of telling clients that sales taxes are just not dischargeable. I'd like to know that I have that wrong, but if so i'd like to know why. HELP?
>
>And, GO KINGS GO!
>-Jeffrey B. Smith**
>CURD, GALINDO & SMITH, L.L.P.
>301 East Ocean Blvd. #1700
>Long Beach, CA 90802
>(562) 624-1177
>(562) 624-1178 fax
>(310) 993-6560 cellular
>www.expertbk.com
>**Certified By The State Bar
>Of California
As A Specialist
>In Bankruptcy Law
>
>
>
>
>
>
>
>

The post was migrated from Yahoo.

Discharging SBOE Taxes Assessed to Officers of Corporation

Posted: Fri Apr 25, 2014 4:03 pm
by Yahoo Bot

Jeff:
What is worse is, it is a crime to collect sales taxes and not turn them over to the state. I had a client get 5 years for this crime. So, they are not just nondischargeable, they are criminal. I have always considered unpaid sales taxes like the third rail.
Dennis
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Apr 24, 2014, at 7:57 PM, wrote:
>
> I'm glad I posted. I know now to refer these cases out. I'm more flustered than ever.
>
>
>
> So, the PC who called last week with 10 year old SBOE sales taxes from a gas station he closed 10 years ago, who has moved to Indiana, and had the Cal SBOE drain his bank account last week, and who says the taxes were for a return that the company filed, but did not pay...what do I tell him? File an individual return for the liability that the company filed a return for 10 years ago and go underground for 2 years?
>
>
>
> How about: "Call Peter Lively or Mark Markus or John Faucher?" How about: "Call an Indiana BK lawyer?"
>
>
>
> I'm soooo confused.
>
>
>
> GO KINGS GO!
>
> -Jeffrey B. Smith**
> CURD, GALINDO & SMITH, L.L.P.
> 301 East Ocean Blvd. #1700
> Long Beach, CA 90802
> (562) 624-1177
> (562) 624-1178 fax
> (310) 993-6560 cellular
> www.expertbk.com
> **Certified By The State Bar
> Of California As A Specialist
> In Bankruptcy Law
>
>
> ---In cdcbaa@yahoogroups.com, wrote :
>
> The responsible officer assessment following the entity's failure to pay. The entity could have filed the returns and been assessed based upon the returns, then failed to pay. I believe these are the facts of Ilko.
>
> Peter M. Lively, J.D., M.B.A.
> Law Office of Peter M. Lively * Personal Financial Law Center I
> 11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
> Telephone: (310) 391-2400 * Toll Free: (800) 307-3328 * Fax: (310) 391-2462
> On Thursday, April 24, 2014 3:41 PM, John Faucher wrote:
>
> "In Ilko, the debtor has not yet been assessed prior to the bankruptcy petition date, but was still subject to assessment so the CA sales taxes (excise not trust fund) was not discharged."
>
> And how does an individual debtor get assessed for sales taxes incurred by his business? Either by having the taxing authority find him and make the assessment on his behalf, in which case there is no return filed (because the return filed by the business does not assess taxes against the individual), or he files his own return. If the taxing authority makes the assessment, no return, therefore no discharge.
>
> - John D. Faucher
> 818/889-8080
>
> To: "cdcbaa@yahoogroups.com"
> Sent: Thursday, April 24, 2014 3:10 PM
> Subject: Re: [cdcbaa] Discharging SBOE Taxes Assessed to Officers of Corporation
>
>
> Shank dealt with Washington law where sales taxes are trust fund taxes, not excise taxes, therefore not dischargeable.
>
> In CA, sales taxes or use taxes are taxes imposed on the retainer for the privilege of doing business, therefore an excise tax, and dischargeable under 507(a)(8)(E) if arising from a transaction over three years prior to the bankruptcy filing. CA requires sales tax returns (quarterly), so not dischargeable if the returns were not filed more than two years before the bankruptcy petition date. Because it is measured on gross receipts it is also subject to the 240 day assessment rule under 507(a)(8)(A).
>
> In Ilko, the debtor has not yet been assessed prior to the bankruptcy petition date, but was still subject to assessment so the CA sales taxes (excise not trust fund) was not discharged.
>
>
> Peter M. Lively, J.D., M.B.A.
> Law Office of Peter M. Lively * Personal Financial Law Center I
> 11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
> Telephone: (310) 391-2400 * Toll Free: (800) 307-3328 * Fax: (310) 391-2462
> On Thursday, April 24, 2014 2:02 PM, "jsmith@..." wrote:
>
> Group:
>
> Can I get a little more input from everyone/someone on this thread? I might not agree (very respectfully) with Mark on this one, but I'm not sure.
>
> I read In re Ilko, 651 F.3d 1049 (9th Cir. 2011). Its mind numbing. It cites as good law Shank v. State Dep't of Revenue (In re Shank), 792 F.2d 829 (9th Cir.1986).
>
> Shank says that sales taxes are "excise" taxes falling within two categories: those owed personally by a retailer, thus falling within 507(a)(8)(E) (the excise tax provision) and those incurred by a retailer's customers, which are collected by the retailer under the authority of the state, held in trust, and then remitted by the retailer to the state, falling within 507(a)(8)(C) (the trust fund tax provision). Ilko agrees that this is what Shank stands for.
>
> If the sales tax is the former (i.e., "owed personally by a retailer") and therefore of the kind in 507(a)(8)(E), then I agree tht they are dischargeable if they are old enough or qualify under 507(a)(8)(E) (i) or (ii), per Ilko.
>
> But I think Shank is still good law as to liability for unremmitted retail sales taxes that were owed by the customers at the time of purchase and unremitted by the business to the government. That is that they are trust fund taxes and thus NEVER dischargeable? I hope I'm wrong and missed a subsequent case here, but I find nothing on Westlaw.
>
> My next question is, if I am right, can someone give me a paractical answer as to what the difference in the two "sales" taxes are? What exatly is a sales tax that is "owed personally by a retailer", as opposed to "those incurred by a retalier's customers which are collected by the retailer...held in trust..then remitted..". Is this like a tobacco or liquor tax? Isn't that something also being paid by the purchaser but collected by the retailer?
>
> I am then further perplexed when I note that in Ilko, the taxpayer: "was obligated to pay sales taxes to the State of California under Cal. Rev. & Tax Code 6051, which imposes a tax on all retailers [f]for the privilege of selling tangible personal property at retail....". Somehow, though, Ilko found that these taxes were NOT "trust fund" taxes, which makes Mark's reading of the case seem correct. The Ilko court found the taxes to be 507(a)(8)(E), excise taxes (but not dischargeable since they were still assessable on those facts), but NOT 507(a)(8)(C) trust fund taxes. I cannot for the life of me figure out the difference. Can anyone break it down for me?
>
> I get questions about BOE sales taxes this twice a year or so and contrary to Mark's post, I am in the habit of telling clients that sales taxes are just not dischargeable. I'd like to know that I have that wrong, but if so i'd like to know why. HELP?
>
> And, GO KINGS GO!
> -Jeffrey B. Smith**
> CURD, GALINDO & SMITH, L.L.P.
> 301 East Ocean Blvd. #1700
> Long Beach, CA 90802
> (562) 624-1177
> (562) 624-1178 fax
> (310) 993-6560 cellular
> www.expertbk.com
> **Certified By The State Bar
> Of California As A Specialist
> In Bankruptcy Law
>
>
>
>
>
>
>
>
>
---In cdcbaa@yahoogroups.com, <petermlively2000@...> wrote :The responsible officer assessment following the entity's failure to pay. The entity could have filed the returns and been assessed based upon the returns, then failed to pay. I believe these are the facts of Ilko. Peter M. Lively, J.D., M.B.A. Law Office of Peter M. Lively * Personal Financial Law Center I 11268 Washington Boulevard, Suite 203, Culver City, California
90230-4647 Telephone: (310) 391-2400 * Toll Free: (800) 307-3328 * Fax: (310) 391-2462 On Thursday, April 24, 2014 3:41 PM, John Faucher <j.d.faucher@...> wrote:
"In Ilko, the debtor has not yet been assessed prior to the bankruptcy petition date, but was still subject to assessment so the CA sales taxes (excise not trust fund) was not discharged."cdcbaa@yahoogroups.com" <cdcbaa@yahoogroups.com> Sent: Thursday, April 24, 2014 3:10 PM Subject: Re: [cdcbaa] Discharging SBOE Taxes Assessed to Officers of Corporation
The post was migrated from Yahoo.

Discharging SBOE Taxes Assessed to Officers of Corporation

Posted: Fri Apr 25, 2014 10:10 am
by Yahoo Bot

It seems the more I learn about this area the less I know. Based on the responses, if my client was personally assessed by the SBOE for sales taxes unpaid by the corporation, more than 240 days ago, but did not file a tax return claiming such tax liability, she is unable to file BK at this timeStephen M. Stern, Esq.
Law Office of Stephen M. Stern, PC
(805) 543-5297
On Friday, April 25, 2014 9:23 AM, Peter M. Lively wrote:
Jeff,
I recommend investing a reasonable amount in the Morgan Kingmaterials thatcover this issue.
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
Telephone: (310) 391-2400* Toll Free: (800) 307-3328 *
Fax: (310) 391-2462
On Thursday, April 24, 2014 7:57 PM, "jsmith@cgsattys.com" wrote:
I'm glad I posted. I know now to refer these cases out. I'm moreflusteredthan ever.
So, the PC who called last week with 10 year old SBOE salestaxes from a gas station he closed 10 years ago, who has moved to Indiana, and had the Cal SBOE drain his bank account last week, and who says the taxes were for a return that the company filed, but did not pay...what doI tell him? File an individual return for the liability that the company filed a return for 10 years ago and go underground for 2 years?
How about: "Call Peter Lively or Mark Markus orJohn Faucher?"I'm soooo confused.
GO KINGS GO!
-Jeffrey B. Smith**
CURD, GALINDO & SMITH, L.L.P.
301 East Ocean Blvd. #1700
Long Beach, CA 90802
(562) 624-1177
(562) 624-1178 fax
(310) 993-6560 cellular
www.expertbk.com
**Certified By The State Bar
Of California As A Specialist
In Bankruptcy Law
The responsibleofficer assessment following the entity's failure to pay. The entity could have filed the returns and been assessed based upon the returns, then failed to pay. I believe these are the facts of Ilko.
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Boulevard, Suite 203, Culver City, California
90230-4647
Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
On Thursday, April 24, 2014 3:41 PM, John Faucher wrote:
"In Ilko, the debtor has not yet been assessed prior to the bankruptcy petition date, but was still subject to assessment so the CA sales taxes (excise not trust fund) was not discharged."
And how does an individual debtor get assessed for sales taxes incurred by his business? Either by having the taxing authority find him and make the assessment on his behalf, in which case there is no return filed (because the return filed by the business does not assess taxes against the individual), or he files his own return. If the taxing authority makes the assessment, no return, therefore no discharge.
- John D. Faucher
818/889-8080

The post was migrated from Yahoo.

Discharging SBOE Taxes Assessed to Officers of Corporation

Posted: Thu Apr 24, 2014 3:10 pm
by Yahoo Bot

Shank dealt with Washingtonlaw where sales taxes are trust fund taxes, not excise taxes, therefore not dischargeable.
In CA, sales taxes or use taxes are taxes imposed on the retainer for the privilege of doing business, therefore an excise tax, and dischargeable under 507(a)(8)(E) if arising from a transaction over three years prior to the bankruptcy filing. CA requires sales tax returns (quarterly), so not dischargeable if the returns were not filed more than two years before the bankruptcy petition date. Because it is measured on gross receipts it is also subject to the 240 day assessment rule under 507(a)(8)(A).
In Ilko, the debtor has not yet been assessed prior to the bankruptcy petition date, but was still subject to assessment so the CA sales taxes (excise not trust fund) was not discharged.
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
On Thursday, April 24, 2014 2:02 PM, "jsmith@cgsattys.com" wrote:
Group:
Can I get a little more input from everyone/someone on this thread? I might not agree (very respectfully) with Mark on this one, but I'm not sure.
I read In re Ilko, 651 F.3d 1049
(9th Cir. 2011). Its mind numbing. It cites as good lawShank v. State Dep't of Revenue (In re
Shank), 792 F.2d 829 (9th Cir.1986).
Shank says that sales taxes are "excise" taxes falling within two categories: those owed
personally by a retailer, thus falling within 507(a)(8)(E) (the excise tax provision) and those incurred by
a retailer's customers, which are collected by the retailer under the authority
of the state, held in trust, and then remitted by the retailer to the state,
falling within 507(a)(8)(C) (the trust fund tax provision). Ilko agrees that this is what Shank stands for.
If the sales tax is the former (i.e., "owed personally by a retailer") and therefore of the kind in 507(a)(8)(E), then I agree tht they are dischargeable if they are old enough or qualifyunder 507(a)(8)(E) (i) or (ii), perIlko.
ButI thinkShankisstillgood law as to liability for unremmitted retail sales taxes that were owed by the customers at the time of purchase and unremitted by the business to the government. That is that they are trust fund taxes and thus NEVER dischargeable? I hope I'm wrong and missed a subsequent case here, but I find nothing on Westlaw.
My next question is, if I am right, can someone give me a paractical answer as to what the difference in the two "sales" taxes are? What exatly is a sales tax that is "owed personally by a retailer", as opposed to "those incurred by a retalier's customers which are collected by the retailer...held in trust..then remitted..". Is this like a tobacco or liquor tax? Isn't that something also being paid by the purchaser but collected by the retailer?
I am then further perplexed when Inote that in Ilko, the taxpayer: "was obligated to pay sales taxes to the State of California under Cal. Rev. & Tax Code 6051, which imposes a tax on all retailers [f]for the
privilege of selling tangible personal property at retail....".s, which makes Mark's reading of the case seem correct. TheIlko court found the taxes to be 507(a)(8)(E),excise taxes (but not dischargeable since they were still assessable on those facts), but NOT 507(a)(8)(C)trust fund taxes. I cannot for the life of me figure out the difference. Can anyone break it down for me?
I get questions about BOE sales taxesthis twice a year or soand contrary to Mark's post, I am in the habit of telling clients that sales taxes are just not dischargeable. I'd like to know that I have that wrong, but if so i'd like to know why. HELP?
And, GO KINGS GO!
-Jeffrey B. Smith**
CURD, GALINDO & SMITH, L.L.P.
301 East Ocean Blvd. #1700
Long Beach, CA 90802
(562) 624-1177
(562) 624-1178 fax
(310) 993-6560 cellular
www.expertbk.com
**Certified By The State Bar
Of California As A Specialist
In Bankruptcy Law

The post was migrated from Yahoo.