By Jonathan E. Strouse (Chicago)
Volunteer director assessed entire tax liability of tax-exempt organization.
A case decided last month by the United States District Court for the Southern District of Texas illustrates the potential dangers that can accompany "good acts" and serving on boards for little or no compensation.
Michael Holmes volunteered to be a director of Harvest Christian Academy, a parochial school in Pasadena, Texas. The Academy's Board of Directors included parents of students and members of the affiliated church. Mr. Holmes was promoted to chairman of the board. He received no compensation for serving in this capacity.
The Academy ran into financial difficulties and, as a result, failed to pay its employees' withholding taxes for three consecutive quarters, a liability exceeding $117,000. Mr. Holmes suggested various cutbacks to the board to free up cash to pay the taxes, and claimed that the board rejected those suggestions. Mr. Holmes was one of four signatories to the Academy's bank account, the others being the Academy's administrator, its treasurer, and another director. Since two signatures were required on Academy checks, Mr. Holmes had no ability to pay the taxes by himself. Holmes claimed that he rarely signed any checks, and then only when no one else was available to do so.
The Internal Revenue Service assessed Mr. Holmes and the Academy's treasurer for the entire amount of the liability, and they sued for a refund. The court rejected Mr. Holmes' claim, finding that both his volunteer status and his inability to sign a check by himself were irrelevant. The court noted that Mr. Holmes had signed several checks payable to other creditors of the Academy, with knowledge of the pending tax liability and reasoned that he could have refused to participate in the "diversion of the funds."
Finally, the court had no problem with the Service¡'s selectively assessing Mr. Holmes with the entire liability. The court stated that he is permitted a right to seek contribution from others, but in a separate suit. His liability was a joint one for the entire amount owing.
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