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Staffing Company Owner Sentenced to 51 Months in Prison for Failing to Pay Payroll Taxes

July 31, 2013, by The McKellar Law Firm, PLLC

A growing area of tax fraud is originating from staffing companies and PEO's (Professional Employer Organizations) who withhold taxes from their workers and fail to turn the withheld funds over to the IRS. A case earlier this month resulted in a former owner of such a company receiving a 51-month prison sentence for committing such a crime.


Richard Whatley, who was once part owner and/or financial controller for three staffing companies located in Utah, was indicted in 2010 for five counts of willful failure to account for and pay over employment taxes for these businesses which were under his control from 2001 to 2006. Prosecutors alleged Whatley's infractions resulted in the loss of more than $2.3 million in tax revenue.

Whatley struck a plea deal in his case in which he accepted a sentence of 51 months in prison and a fine of $541,513 in exchange for a plea of guilty to one count of willful failure to account for or pay over taxes. Whatley admitted to prosecutors that while he did collect fourth quarter taxes from employees of one of his staffing companies in 2003, he did not turn over the money to the IRS. T

26 USC ยง 7203 states that any persons found to have willfully failed to account for or pay over taxes to the IRS are subject to a fine up to $25,000 for an individual or $100,000 for a corporation. The statute also declares that the individual, if convicted, will be charged with a felony and could face up to five years in prison.

To determine the meaning of "willfulness" one must turn to the case law of Cheek v. United States, 498 U.S. 192, 201 (1991), United States v. Pomponio, 429 U.S. 10, 12 (1976), and United States v. Bishop, 412 U.S. 346, 360 (1973). These cases determined willfulness to be defined as the "voluntary, intentional violation of a known legal duty." Courts do not require direct proof of willfulness. Instead, the court can infer by the behavior or acts of a defendant that his or her conduct had the effect of misleading or concealing the desired information from the government. Spies v. United States, 317 U.S. 492-499 (1943). This conduct includes any efforts by the defendant that the court infers had the intention to "place assets beyond the government's reach after a tax liability has been assessed." United States v. Mal, 942 F.2d 682, 687 (9th Cir. 1991).

This was not Whatley's first brush with law. He previously served 27 months in prison for mail fraud and interstate transportation of stolen funds. He completed probation for these crimes in November of 2003.

New Jersey Couple Sentenced to 44 Months Imprisonment for Failure to Pay Employment Taxes

December 6, 2012, by The McKellar Law Firm, PLLC

As a Tennessee tax attorney, I often represent small business owners who are delinquent in paying their payroll taxes, which are commonly referred to as an owner's "941 taxes." While the majority of these types of clients are seeking to resolve their tax debts with the Internal Revenue Service by civil means, a few of these cases are criminal in nature. Simply put, the Government views failure to pay provide payment for payroll taxes as theft, as the employer has taken money from an employee's check and failed to pay the withheld amounts to the IRS.

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According to a press release from the Department of Justice, James and Theresa DeMuro of New Jersey each received 44-month prison sentences for conspiracy to defraud the Government and twenty-one counts of failing to pay payroll/employment taxes. The couple was also ordered to pay restitution of $1,337,952.12 to the IRS.

The couple's sentence came after a jury trial, where evidence was introduced that the couple withheld over a half-million dollars from their employees, but failed to pay any of this money to the IRS. The convicted couple also withheld money from employees' checks for health insurance, retirement accounts, and child support, but they also failed to provide these funds to the appropriate agencies or accounts. Instead, evidence was introduced showing that the DeMuros spent nearly $300,000 for purchases from Home Shopping Network, QVC, and Jewelry Television.