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Sec. 6656. Failure To Make Deposit Of Taxes

I.R.C. § 6656(a) Underpayment Of Deposits
In the case of any failure by any person to deposit (as required by this title or by regulations of the Secretary under this title) on the date prescribed therefor any amount of tax imposed by this title in such government depository as is authorized under section 6302(c) to receive such deposit, unless it is shown that such failure is due to reasonable cause and not due to willful neglect, there shall be imposed upon such person a penalty equal to the applicable percentage of the amount of the underpayment.
I.R.C. § 6656(b) Definitions
For purposes of subsection (a)—
I.R.C. § 6656(b)(1) Applicable Percentage
I.R.C. § 6656(b)(1)(A) In General
Except as provided in subparagraph (B), the term “applicable percentage” means—
I.R.C. § 6656(b)(1)(A)(i)
2 percent if the failure is for not more than 5 days,
I.R.C. § 6656(b)(1)(A)(ii)
5 percent if the failure is for more than 5 days but not more than 15 days, and
I.R.C. § 6656(b)(1)(A)(iii)
10 percent if the failure is for more than 15 days.
I.R.C. § 6656(b)(1)(B) Special Rule
In any case where the tax is not deposited on or before the earlier of—
I.R.C. § 6656(b)(1)(B)(i)
the day 10 days after the date of the first delinquency notice to the taxpayer under section 6303, or
I.R.C. § 6656(b)(1)(B)(ii)
the day on which notice and demand for immediate payment is given under section 6861 or 6862 or the last sentence of section 6331(a),
the applicable percentage shall be 15 percent.
I.R.C. § 6656(b)(2) Underpayment
The term “underpayment” means the excess of the amount of the tax required to be deposited over the amount, if any, thereof deposited on or before the date prescribed therefor.
I.R.C. § 6656(c) Exception For First-Time Depositors Of Employment Taxes
The Secretary may waive the penalty imposed by subsection (a) on a person's inadvertent failure to deposit any employment tax if—
I.R.C. § 6656(c)(1)
such person meets the requirements referred to in section 7430(c)(4)(A)(ii),
I.R.C. § 6656(c)(2)
such failure—
I.R.C. § 6656(c)(2)(A)
occurs during the first quarter that such person was required to deposit any employment tax; or
I.R.C. § 6656(c)(2)(B)
if such person is required to change the frequency of deposits of any employment tax, relates to the first deposit to which such change applies, and
I.R.C. § 6656(c)(3)
the return of such tax was filed on or before the due date.
For purposes of this subsection, the term “employment taxes” means the taxes imposed by subtitle C.
I.R.C. § 6656(d) Authority To Abate Penalty Where Deposit Sent To Secretary
The Secretary may abate the penalty imposed by subsection (a) with respect to the first time a depositor is required to make a deposit if the amount required to be deposited is inadvertently sent to the Secretary instead of to the appropriate government depository.
I.R.C. § 6656(e) Designation Of Periods To Which Deposits Apply
I.R.C. § 6656(e)(1) In General
A deposit made under this section shall be applied to the most recent period or periods within the specified tax period to which the deposit relates, unless the person making such deposit designates a different period or periods to which such deposit is to be applied.
I.R.C. § 6656(e)(2) Time For Making Designation
A person may make a designation under paragraph (1) only during the 90-day period beginning on the date of a notice that a penalty under subsection (a) has been imposed for the specified tax period to which the deposit relates.
(Aug. 16, 1954, ch. 736, 68A Stat. 826; Dec. 30, 1969, Pub. L. 91-172, title IX, Sec. 943(b), 83 Stat. 728; Oct. 4, 1976, Pub. L. 94-455, title XIX, Sec. 1906(b)(13)(A), 90 Stat. 1834; Aug. 13, 1981, Pub. L. 97-34, title VII, Sec. 724(a), (b)(1), (3), 95 Stat. 344, 345; Oct. 21, 1986, Pub. L. 99-509, title VIII, Sec. 8001(a), 100 Stat. 1951; Dec. 19, 1989, Pub. L. 101-239, title VII, Sec. 7742(a), 103 Stat. 2405; Pub. L. 105-206, title III, Sec. 3304, July 22, 1998, 112 Stat 685.)
BACKGROUND NOTES
AMENDMENTS
1998 - Subsec. (c)(2). Pub. L. 105-206, Sec. 3304(b) amended subsec. (c)(2), which prior to amendment read as follows:
“(2) such failure occurs during the 1st quarter that such person was required to deposit any employment tax, and”
Subsec. (e). Pub. L. 105-206, Sec. 3304(a) added new subsec. (e).
Subsec. (e)(1). Pub. L. 105-206, Sec. 3304(c) revised subsec. (e)(1) [added by Sec. 3304(a) of Pub. L. 105-206].
1996 - Subsecs. (c), (d). Pub. L. 104-168, Sec. 304(a), added subsecs. (c) and (d).
1989 - Pub. L. 101-239 substituted ‘taxes’ for ‘taxes or overstatement of deposits’ as section catchline and amended text generally, revising substance and structure.
1986 - Subsec. (a). Pub. L. 99-509 substituted ‘10 percent’ for ‘5 percent’.
1981 - Pub. L. 97-34, Sec. 724(b)(1), inserted ‘or overstatement of deposits’ after ‘taxes’ in section catchline.
Subsec. (a). Pub. L. 97-34, Sec. 724(b)(3), substituted ‘Underpayment of deposits’ for ‘Penalty’ in heading.
Subsec. (b). Pub. L. 97-34, Sec. 724(a), substituted provisions relating to conditions for imposition of penalties for overstated deposit claims and definition of ‘overstated deposit claim’, for provisions relating to imposition of penalties after due date for return.
1976 - Subsec. (a). Pub. L. 94-455 struck out ‘or his delegate’ after ‘Secretary’.
1969 - Subsec. (a). Pub. L. 91-172 substituted provisions imposing a penalty of five percent for the failure to deposit on the date prescribed any amount of tax imposed by this title, for provisions imposing a penalty of one percent of the amount of underpayment each month but not to exceed six percent in the aggregate.
EFFECTIVE DATE OF 1998 AMENDMENTS
Section 3304(d) of Pub. L. 105-206 provided that:
“(1) In general. -- The amendments made by this section shall apply to deposits required to be made after the 180th day after the date of the enactment of this Act [enacted: July 22, 1998].
“(2) Application to current liabilities. -- The amendment made by subsection (c) shall apply to deposits required to be made after December 31, 2001.”
EFFECTIVE DATE OF 1996 AMENDMENT
Section 304(b) of Pub. L. 104-168 provided that: “The amendment made by subsection (a) [adding subsecs. (c) and (d)] shall apply to deposits required to be made after the date of the enactment of this Act [July 30, 1996].
EFFECTIVE DATE OF 1989 AMENDMENT
Section 7742(c) of Pub. L. 101-239 provided that: ‘The amendments made by this section (amending this section) shall apply to deposits required to be made after December 31, 1989.’
EFFECTIVE DATE OF 1986 AMENDMENT
Section 8001(b) of Pub. L. 99-509 provided that: ‘The amendment made by subsection (a) (amending this section) shall apply to penalties assessed after the date of the enactment of this Act (Oct. 21, 1986).’
EFFECTIVE DATE OF 1981 AMENDMENT
Section 724(c) of Pub. L. 97-34 provided that: ‘The amendments made by this section (amending this section and sections 5684 and 5761 of this title) shall apply to returns filed after the date of the enactment of this Act (Aug. 13, 1981).’
EFFECTIVE DATE OF 1969 AMENDMENT
Amendment by Pub. L. 91-172 applicable with respect to deposits the time for making of which is after Dec. 31, 1969, see section 943(d) of Pub. L. 91-172, set out as a note under section 6651 of this title.
EMPLOYEE RETENTION CREDIT FOR EMPLOYERS SUBJECT TO CLOSURE DUE TO COVID-19
Sec. 2301 of Pub. L. 116-136, as amended by Pub. L. 116-260, Div. EE, Secs. 206, 207, and 303(d)(3)(C)(iii), provided:
“SEC. 2301. EMPLOYEE RETENTION CREDIT FOR EMPLOYERS SUBJECT TO CLOSURE DUE TO COVID-19.
“(a) IN GENERAL.—In the case of an eligible employer, there shall be allowed as a credit against applicable employment taxes for each calendar quarter an amount equal to 70 percent of the qualified wages with respect to each employee of such employer for such calendar quarter.
“(b) LIMITATIONS AND REFUNDABILITY.—
“(1) WAGES TAKEN INTO ACCOUNT.—The amount of qualified wages with respect to any employee which may be taken into account under subsection (a) by the eligible employer for any calendar quarter shall not exceed $10,000.
“(2) CREDIT LIMITED TO EMPLOYMENT TAXES.—The credit allowed by subsection (a) with respect to any calendar quarter shall not exceed the applicable employment taxes (reduced by any credits allowed under subsections (e) and (f) of section 3111 of the Internal Revenue Code of 1986, sections 7001 and 7003 of the Families First Coronavirus Response Act, and section 303(d) of the Taxpayer Certainty and Disaster Tax Relief Act of 2020) on the wages paid with respect to the employment of all the employees of the eligible employer for such calendar quarter.
“(3) REFUNDABILITY OF EXCESS CREDIT.—
“(A) IN GENERAL.—If the amount of the credit under subsection (a) exceeds the limitation of paragraph (2) for any calendar quarter, such excess shall be treated as an overpayment that shall be refunded under sections 6402(a) and 6413(b) of the Internal Revenue Code of 1986.
“(B) TREATMENT OF PAYMENTS.—For purposes of section 1324 of title 31, United States Code, any amounts due to the employer under this paragraph shall be treated in the same manner as a refund due from a credit provision referred to in subsection (b)(2) of such section.
“(c) DEFINITIONS.—For purposes of this section—
“(1) APPLICABLE EMPLOYMENT TAXES.—The term ‘‘applicable employment taxes’’ means the following:
“(A) The taxes imposed under section 3111(a) of the Internal Revenue Code of 1986.
“(B) So much of the taxes imposed under section 3221(a) of such Code as are attributable to the rate in effect under section 3111(a) of such Code.
“(2) ELIGIBLE EMPLOYER.—
(A) IN GENERAL.—The term ‘‘eligible employer’’ means any employer—
“(i) which was carrying on a trade or business during the calendar quarter for which the credit is determined under subsection (a), and
“(ii) with respect to any calendar quarter, for which—
“(I) the operation of the trade or business described in clause (i) is fully or partially suspended during the calendar quarter due to orders from an appropriate governmental authority limiting commerce, travel, or group meetings (for commercial, social, religious, or other purposes) due to the coronavirus disease 2019 (COVID-19), or
“(II) the gross receipts (within the meaning of section 448(c) of the Internal Revenue Codeof 1986) of such employer for such calendar quarter are less than 80 percent of the gross receipts of such employer for the same calendar quarter in calendar year 2019.
“With respect to any employer for any calendar quarter, if such employer was not in existence as of the beginning of the same calendar quarter in calendar year 2019, clause (ii)(II) shall be applied by substituting ‘2020’ for ‘2019’.
“(B) ELECTION TO USE ALTERNATIVE QUARTER.—At the election of the employer—
“(i) subparagraph (A)(ii)(II) shall be 18 applied—
‘‘(I) by substituting ‘for the immediately preceding calendar quarter’ for ‘for such calendar quarter’, and
“(II) by substituting ‘the corresponding calendar quarter in calendar year 2019’ for ‘the same calendar quarter in calendar year 2019’, and
“(ii) the last sentence of subparagraph (A) shall be applied by substituting ‘the corresponding calendar quarter in calendar year 2019’ for ‘the same calendar quarter in calendar year 2019’.
“An election under this subparagraph shall be made at such time and in such manner as the Secretary shall prescribe.
“(C) TAX-EXEMPT ORGANIZATIONS.—In the case of an organization which is described in section 501(c) of the Internal Revenue Code of 1986 and exempt from tax under section 501(a) of such Code—
“(i) clauses (i) and (ii)(I) of subparagraph (A) shall apply to all operations of such organization, and
“(ii) any reference in this section to gross receipts shall be treated as a reference to gross receipts within the meaning of section 6033 of such Code.
“(3) QUALIFIED WAGES.—
“(A) IN GENERAL.—The term ‘‘qualified wages’’ means—
“(i) in the case of an eligible employer for which the average number of full-time employees (within the meaning of section 4980H of the Internal Revenue Code of 1986) employed by such eligible employer during 2019 was greater than 500, wages paid by such eligible employer with respect to which an employee is not providing services due to circumstances described in subclause (I) or (II) of paragraph (2)(A)(ii), or
“(ii) in the case of an eligible employer for which the average number of full-time employees (within the meaning of section 4980H of the Internal Revenue Code of 1986) employed by such eligible employer during 2019 was not greater than 500—
“(I) with respect to an eligible employer described in subclause (I) of paragraph (2)(A)(ii), wages paid by such eligible employer with respect to an employee during any period described in such clause, or
“(II) with respect to an eligible employer described in subclause (II) of such paragraph, wages paid by such eligible employer with respect to an employee during such quarter.
“(B) EXCEPTION.—The term ‘qualified wages’ shall not include any wages taken into account under section 7001 or section 7003 of the Families First Coronavirus Response Act.
“(4) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of the Treasury or the Secretary's delegate.
“(5) WAGES.—
“(A) IN GENERAL.—The term ‘‘wages’’ means wages (as defined in section 3121(a) of the Internal Revenue Code of 1986) and compensation (as defined in section 3231(e) of such Code). For purposes of the preceding sentence, in the case of any organization or entity described in subsection (f)(2), wages as defined in section 3121(a) of the Internal Revenue Code of 1986 shall be determined without regard to paragraphs (5), (6), (7), (10), and (13) of section 3121(b) of such Code (except with respect to services performed in a penal institution by an inmate thereof).
“(B) ALLOWANCE FOR CERTAIN HEALTH PLAN EXPENSES.—
“(i) IN GENERAL.—Such term shall include amounts paid by the eligible employer to provide and maintain a group health plan (as defined in section 5000(b)(1) of the Internal Revenue Code of 1986), but only to the extent that such amounts are excluded from the gross income of employees by reason of section 106(a) of such Code.
‘‘(ii) ALLOCATION RULES.—For purposes of this section, amounts treated as wages under clause (i) shall be treated as paid with respect to any employee (and with respect to any period) to the extent that such amounts are properly allocable to such employee (and to such period) in such manner as the Secretary may prescribe. Except as otherwise provided by the Secretary, such allocation shall be treated as properly made if made on the basis of being pro rata among periods of coverage.
“(6) OTHER TERMS.—Any term used in this section which is also used in chapter 21 or 22 of the Internal Revenue Code of 1986 shall have the same meaning as when used in such chapter.
“(d) AGGREGATION RULE.—All persons treated as a single employer under subsection (a) or (b) of section 52 of the Internal Revenue Code of 1986, or subsection (m) or (o) of section 414 of such Code, shall be treated as one employer for purposes of this section.
“(e) CERTAIN RULES TO APPLY.—For purposes of this section, rules similar to the rules of sections 51(i)(1) and280C(a) of the Internal Revenue Code of 1986 shall apply.
“(f) CERTAIN GOVERNMENTAL EMPLOYERS.—
“(1) IN GENERAL.—This credit shall not apply to the Government of the United States, the government of any State or political subdivision thereof, or any agency or instrumentality of any of the foregoing.
‘‘(2) EXCEPTION.—Paragraph (1) shall not apply to—
‘‘(A) any organization described in section 501(c)(1) of the Internal Revenue Code of 1986 and exempt from tax under section 501(a) of such Code, or
‘‘(B) any entity described in paragraph (1) if —
‘‘(i) such entity is a college or university, or
‘‘(ii) the principal purpose or function of such entity is providing medical or hospital care.
“In the case of any entity described in subparagraph (B), such entity shall be treated as satisfying the requirements of subsection (c)(2)(A)(i).
“(g) ELECTION TO NOT TAKE CERTAIN WAGES INTO ACCOUNT.—
‘‘(1) IN GENERAL.—This section shall not apply to so much of the qualified wages paid by an eligible employer as such employer elects (at such time and in such manner as the Secretary may prescribe) to not take into account for purposes of this section.
‘‘(2) COORDINATION WITH PAYCHECK PROTECTION PROGRAM.—The Secretary, in consultation with the Administrator of the Small Business Administration, shall issue guidance providing that payroll costs paid during the covered period shall not fail to be treated as qualified wages under this section by reason of an election under paragraph (1) to the extent that a covered loan of the eligible employer is not forgiven by reason of a decision under section 7A(g) of the Small Business Act or the application of section 7(a)(37)(J) of the Small Business Act. Terms used in the preceding sentence which are also used in section 7A(g) or 7(a)(37)(J) of the Small Business Act shall, when applied in connection with either such section, have the same meaning as when used in such section, respectively. Terms used in the preceding sentence which are also used in section 7A of the Small Business Act shall have the same meaning as when used in such section.
“(h) SPECIAL RULES.—
“(1) DENIAL OF DOUBLE BENEFIT.—Any wages taken into account in determining the credit allowed under this section shall not be taken into account as wages for purposes of sections 41, 45A, 45P, 45S, 51, and 1396 of the Internal Revenue Code of 1986.
“(2) THIRD PARTY PAYORS.—Any credit allowed under this section shall be treated as a credit described in section 3511(d)(2) of such Code.
“(i) TRANSFERS TO FEDERAL OLD-AGE AND SURVIVORS INSURANCE TRUST FUND.—There are hereby appropriated to the Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability Insurance Trust Fund established under section 201 of the Social Security Act (42 U.S.C. 401) and the Social Security Equivalent Benefit Account established under section 15A(a) of the Railroad Retirement Act of 1974 (45 U.S.C. 14 231n–1(a)) amounts equal to the reduction in revenues to the Treasury by reason of this section (without regard to this subsection). Amounts appropriated by the preceding sentence shall be transferred from the general fund at such times and in such manner as to replicate to the extent possible the transfers which would have occurred to such Trust Fund or Account had this section not been enacted.
‘‘(j) ADVANCE PAYMENTS.—
‘‘(1) IN GENERAL.—Except as provided in paragraph (2), no advance payment of the credit under subsection (a) shall be allowed.
‘‘(2) ADVANCE PAYMENTS TO SMALL EMPLOYERS.—
‘‘(A) IN GENERAL.—Under rules provided by the Secretary, an eligible employer for which the average number of full-time employees (within the meaning of section 4980H of the Internal Revenue Code of 1986) employed by such eligible employer during 2019 was not greater than 500 may elect for any calendar quarter to receive an advance payment of the credit under subsection (a) for such quarter in an amount not to exceed 70 percent of the average quarterly wages paid by the employer in calendar year 2019.
‘‘(B) SPECIAL RULE FOR SEASONAL EMPLOYERS.—In the case of any employer who employs seasonal workers (as defined in section 45R(d)(5)(B) of the Internal Revenue Code of 1986), the employer may elect to substitute ‘the wages for the calendar quarter in 2019 which corresponds to the calendar quarter to which the election relates’ for ‘the average quarterly wages paid by the employer in calendar year 2019’.
‘‘(C) SPECIAL RULE FOR EMPLOYERS NOT IN EXISTENCE IN 2019.—In the case of any employer that was not in existence in 2019, subparagraphs (A) and (B) shall each be applied by substituting ‘2020’ for ‘2019’ each place it appears.
“(3) RECONCILIATION OF CREDIT WITH ADVANCE PAYMENTS.—
‘‘(A) IN GENERAL.—The amount of credit which would (but for this subsection) be allowed under this section shall be reduced (but not below zero) by the aggregate payment allowed to the taxpayer under paragraph (2). Any failure to so reduce the credit shall be treated as arising out of a mathematical or clerical error and assessed according to section 6213(b)(1) of the Internal Revenue Code of 1986.
‘‘(B) EXCESS ADVANCE PAYMENTS.—If the advance payments to a taxpayer under paragraph (2) for a calendar quarter exceed the credit allowed by this section (determined without regard to subparagraph (A)), the tax imposed by chapter 21 or 22 of the Internal Revenue Code of 1986 (whichever is applicable) for the calendar quarter shall be increased by the amount of such excess.
“(k) TREATMENT OF DEPOSITS.—The Secretary shall waive any penalty under section 6656 of the Internal Revenue Code of 1986 for any failure to make a deposit of any applicable employment taxes if the Secretary determines that such failure was due to the reasonable anticipation of the credit allowed under this section.
“(l) REGULATIONS AND GUIDANCE.—The Secretary shall issue such forms, instructions, regulations, and guidance as are necessary—
“(1) to allow the advance payment of the credit under subsection (a) as provided in subsection (j)(2), subject to the limitations provided in this section, based on such information as the Secretary shall require,
“(2) with respect to the application of the credit under subsection (a) to third party payors (including professional employer organizations, certified professional employer organizations, or agents under section 3504 of the Internal Revenue Code of 1986), including regulations or guidance allowing such payors to submit documentation necessary to substantiate the eligible employer status of employers that use such payors, and
‘‘(3) to prevent the avoidance of the purposes of the limitations under this section, including through the leaseback of employees.
‘‘Any forms, instructions, regulations, or guidance described in paragraph (2) shall require the customer to be responsible for the accounting of the credit and for any liability for improperly claimed credits and shall require the certified professional employer organization or other third party payor to accurately report such tax credits based on the information provided by the customer.
“(m) APPLICATION.—This section shall only apply to wages paid after March 12, 2020, and before July 1, 2021.
‘‘(n) PUBLIC AWARENESS CAMPAIGN.—
‘‘(1) IN GENERAL.—The Secretary shall conduct a public awareness campaign, in coordination with the Administrator of the Small Business Administration, to provide information regarding the availability of the credit allowed under this section.
‘‘(2) OUTREACH.—Under the campaign conducted under paragraph (1), the Secretary shall—
‘‘(A) provide to all employers which reported not more than 500 employees on the most recently filed return of applicable employment taxes a notice about the credit allowed under this section and the requirements for eligibility to claim the credit, and
‘‘(B) not later than 30 days after the date of the enactment of this subsection, provide to all employers educational materials relating to the credit allowed under this section, including specific materials for businesses with not more than 500 employees.’’
In amending Pub. L. 116-136, Sec. 2301, Pub. L. 116-260, Div. EE, Sec. 206, provided the following:
“(e) EFFECTIVE DATE.—
“(1) IN GENERAL.—The amendments made by this section shall take effect as if included in the provisions of the CARES Act to which they relate.
“(2) SPECIAL RULE.—
“(A) IN GENERAL.—For purposes of section 2301 of the CARES Act, an employer who has filed a return of tax with respect to applicable employment taxes (as defined in section 2301(c)(1) of division A of such Act) before the date of the enactment of this Act may elect (in such manner as the Secretary of the Treasury (or the Secretary's delegate) shall prescribe) to treat any applicable amount as an amount paid in the calendar quarter which includes the date of the enactment of this Act.
“(B) APPLICABLE AMOUNT.—For purposes of subparagraph (A), the term ‘‘applicable amount’’ means the amount of wages which—
“(i) are—
“(I) described in section 2301(c)(5)(B) of the CARES Act, as added by the amendments made by subsection (b), or
“(II) permitted to be treated as qualified wages under guidance issued pursuant to section 2301(g)(2) of the CARES Act (as added by subsection (c)), and
“(ii) were—
“(I) paid in a calendar quarter beginning after December 31, 2019, and before October 1, 2020, and
“(II) not taken into account by the taxpayer in calculating the credit allowed under section 2301(a) of division A of such Act for such calendar quarter.”
In amending Pub. L. 116-136, Sec. 2301, Pub. L. 116-260, Div. EE, Sec. 207(k), provided the following:
“(k) EFFECTIVE DATE.—The amendments made by this section shall apply to calendar quarters beginning after December 31, 2020.”