Who is responsible for paying late filing fee of 2008 1120s filed in 2012 if company out of business and has no assets?

[qbteachmt]

1120S is used for a pass-through entity (S corp). That means the shareholder(s) would also have amended or erroneous returns for any year that the 1120S never/finally filed. Pass Through = trickles down to the shareholders for the year reported.

[AmyC]

The partnership will receive a penalty on the partnership which lists the number of members and states the amount due per person.

You can request a penalty abatement. If everyone has been filing timely returns, you might get the penalty waived.

You will want to respond to the IRS letter with one of your own. The letter could go something like this:

To Whom It May Concern:

We are responding for the above-named taxpayer regarding the late filing penalties assessed under Code Section 6698(a)(1) per your notice (copy enclosed). We request automatic abatement of the penalties under Rev. Proc. 84-35 due to the facts below.

Your S Corp name here,  state some facts here. Each member shares in each item of partnership income, deductions, and other pass-through items in the same percentage as their respective ownership percentages. The limited liability company had no tax liability at the entity level, and each member included all items of income, deductions and credits from the limited liability company on their own timely-filed income tax returns.

Sincerely,

name of person sending  

Be sure to include the IRS form with the penalty. The IRS has an automatic freebie for many penalties the FIRST time. No guarantees though.

[Anonymous]

IRC section 6699 controls the S corp filing pemalties

(a)General ruleIn addition to the penalty imposed by section 7203 (relating to willful failure to file return, supply information, or pay tax), if any S corporation required to file a return under section 6037 for any taxable year—
(1)fails to file such return at the time prescribed therefor (determined with regard to any extension of time for filing), or
(2)files a return which fails to show the information required under section 6037,
such S corporation shall be liable for a penalty determined under subsection (b) for each month (or fraction thereof) during which such failure continues (but not to exceed 12 months), unless it is shown that such failure is due to reasonable cause.
(b)Amount per monthFor purposes of subsection (a), the amount determined under this subsection for any month is the product of—
(1)$195, multiplied by
(2)the number of persons who were shareholders in the S corporation during any part of the taxable year.
(c)Assessment of penalty
The penalty imposed by subsection (a) shall be assessed against the S corporation.

however. iRC 6901 deals with the situation where assets are transferred, thus leaving a business unable to pay taxes

a)Method of collectionThe amounts of the following liabilities shall, except as hereinafter in this section provided, be assessed, paid, and collected in the same manner and subject to the same provisions and limitations as in the case of the taxes with respect to which the liabilities were incurred:
(1)Income, estate, and gift taxes
(A)TransfereesThe liability, at law or in equity, of a transferee of property—
(i)of a taxpayer in the case of a tax imposed by subtitle A (relating to income taxes),
(ii)of a decedent in the case of a tax imposed by chapter 11 (relating to estate taxes), or
(iii)of a donor in the case of a tax imposed by chapter 12 (relating to gift taxes),
in respect of the tax imposed by subtitle A or B.
(B)Fiduciaries
The liability of a fiduciary under section 3713(b) of title 31, United States Code, in respect of the payment of any tax described in subparagraph (A) from the estate of the taxpayer, the decedent, or the donor, as the case may be.

(2)Other taxes
The liability, at law or in equity of a transferee of property of any person liable in respect of any tax imposed by this title (other than a tax imposed by subtitle A or B), but only if such liability arises on the liquidation of a partnership or corporation, or on a reorganization within the meaning of section 368(a).

IRC 6671 includes penalties as taxes

(a)Penalty assessed as tax
The penalties and liabilities provided by this subchapter shall be paid upon notice and demand by the Secretary, and shall be assessed and collected in the same manner as taxes. Except as otherwise provided, any reference in this title to “tax” imposed by this title shall be deemed also to refer to the penalties and liabilities provided by this subchapter.

what this all means

the owners may be held liable if they take the assets of the corporation but leave the penalty unpaid when the liquidation is done. They can't both keep the corporate assets and not pay the penalty.

the question is not wther the Corp has any assets anymore but wether the shareholder took assets in liquidation

[Rick19744]

There are many unknown facts on this matter and the penalties can be fairly severe.

Based on the limited facts, and in that the penalties can be severe, I would recommend that you consult with a tax professional who you can have a one on one conversation, provide all the facts and this individual can draft a response to the IRS.

Hopefully, based on the facts, the response can request an abatement of the penalties.

This is not the time to be penny wise and $$ foolish.