15-30-203. Employer liable for employment taxes. (1) Each employer is liable for the reports and payments required by 15-30-204, the amounts required to be deducted and withheld under this part, and the amounts plus interest due on the amounts are a tax. With respect to the tax, the employer is the taxpayer.
     (2) The officer of a corporation whose responsibility it is to collect, truthfully account for, and pay to the state the amounts withheld from the corporation's employees and who fails to pay the withholdings is liable to the state for the amounts withheld and the penalty and interest due on the amounts.
     (3) (a) Each officer of the corporation is individually liable along with the corporation for filing reports to the extent that the officer has access to the requisite records and for unpaid taxes, penalties, and interest upon a determination that the officer:
     (i) possessed the responsibility to file reports and pay taxes on behalf of the corporation; and
     (ii) possessed the responsibility on behalf of the corporation for directing the filing of tax reports or the payment of other corporate obligations and exercised that responsibility resulting in the corporation's failure to file reports required by this part or pay taxes due as required by this part.
     (b) In determining which corporate officer is liable, the department is not limited to considering the elements set forth in subsection (3)(a) to establish individual liability and may consider any other available information.
     (4) In the case of a corporate bankruptcy, the liability of the individual remains unaffected by the discharge of penalty and interest against the corporation. The individual remains liable for any reports and the amount of taxes, penalties, and interest unpaid by the corporation.
     (5) For the purpose of determining liability for the filing of reports and the remittance of taxes, penalties, and interest owed under this part, a member-managed limited liability company must be treated as a partnership with liability for filing reports and remitting taxes, penalties, and interest owed extending to each member who was a member at the time the report or taxes were due.
     (6) For determining personal liability for the failure to file reports and remit taxes, penalties, and interest owed by a manager-managed limited liability company, the managers of the limited liability company are jointly and severally liable along with the limited liability company for reports and any taxes, penalties, and interest owed.
     (7) For determining personal liability for the failure to file reports and remit taxes, penalties, and interest owed by a limited liability partnership, the partners of the limited liability partnership are jointly and severally liable, along with the limited liability partnership, for reports and any taxes, penalties, and interest due.
     (8) If the employer fails to deduct and withhold the amounts specified in 15-30-202 and the tax against which the deducted and withheld amounts would have been credited is paid, the amounts required to be deducted and withheld may not be collected from the employer.

     History: En. Sec. 4, Ch. 246, L. 1955; R.C.M. 1947, 84-4945; amd. Sec. 1, Ch. 681, L. 1979; amd. Sec. 1, Ch. 33, L. 1991; amd. Sec. 12, Ch. 491, L. 1997.