Personal Liability of Responsible Officers, Members, or Employees for Taxes Withheld

# (1)

(1) To be held personally liable for unpaid income tax withholding or statewide transit tax under ORS 316.162, a person must have been considered to have been an "employer." In addition, the person must have been in a position to pay the income tax withholding or statewide transit tax or direct the payment of the income tax withholding or statewide transit tax at the time the duty arose to withhold or pay over the taxes. Additionally, the person must have been aware, or have been in a position that should have been aware, that the income tax withholding or statewide transit tax was not paid to the department. An employer cannot avoid personal liability by delegating their responsibilities to another.

# (2)

(2) "Employer" includes, but is not limited to an officer, member or employee of a corporation, partnership or other business entity, if, among other duties, that individual has:

(a) Authority to see that the income tax withholding or statewide transit taxes are paid when due;

(b) Authority to prefer one creditor over another;

(c) Authority to hire and dismiss employees;

(d) Authority to set employees' working conditions and schedules;

(e) Authority to sign or co-sign checks;

(f) Authority to compute and sign payroll tax or statewide transit tax reports;

(g) Authority to make fiscal decisions for the business;

(h) Authority to incur debt on behalf of the business; or

(i) Performed duties other than those outlined by the corporate bylaws or partnership agreement.

# (3)

(3) The following factors do not preclude a finding that the individual is liable for the payment of taxes which were required to be withheld:

(a) Whether the failure to pay over the required income tax withholding or statewide transit tax was willful;

(b) Whether the individual received remuneration;

(c) Maintenance of full-time employment elsewhere;

(d) The department considers another individual liable for the same income tax withholding or statewide transit tax;

(e) A corporate bylaw or partnership agreement position description to the contrary;

(f) Absence of signatory authority on a business bank account;

(g) Absence of bookkeeping or recordkeeping duties;

(h) Absence of authority to hire, fire, and to set working conditions and schedules; or

(i) Whether any functions indicating liability have been delegated to another.