Wednesday, August 26, 2009

IRS Administrative Processing of Restitution Payments

A recent Program Manager Technical Assistance (PMTA 2009-122, here) addresses various issues on IRS processing of restitution payments to the underlying taxes, penalties and interest. Although not addressed in this PMTA, a sentencing court cannot order restitution for tax liabilities, penalties and interest unless the defendant contractually agrees to an award of restitution. In our district, the AUSAs insist on this contractual restitution in the plea for the year of conviction plus other years involving relevant conduct. These AUSAs claim that DOJ Tax mandates this contractual restitution, but I have noticed that restitution has not been provided for in many pleas I have seen from other districts, even in cases handled by DOJ Tax personnnel. In any event, if the court does award restitution for the underlying tax, penalties and interest, the PMTA tells the Service what to do with it.

You can read the PMTA, but here are the conclusions reached in the PMTA:
  1. Restitution payments should be applied to the civil tax liabilities, including penalties and interest, for the year(s) involved in the criminal case. If an assessment for civil tax liabilities has not been made, the restitution payments should be held in the general fund until an assessment is made and then credited against the taxpayer's civil tax liabilities. When the restitution order does not specify how to apply payments, the Service has discretion to apply the payments to the applicable years in the order that best serves its interest.
  2. The Service cannot take administrative collection action to collect the restitution ordered. The Department of Justice through its Financial Litigation Units is responsible for collection and enforcement of the restitution order. The Department of Justice may enforce a judgment imposing restitution in accordance with the practices and procedures for the enforcement of judgments under Federal and State law.
  3. If the Service receives an undesignated voluntary payment or an involuntary payment for civil tax liabilities the Service may apply them in the order that best serves its interest. If some of the civil tax liabilities are for a year that was also involved in a criminal tax proceeding, the Service may decide that it is in its best interest to apply those payments first to the year(s) not involved in the criminal tax proceeding.
  4. If the amount of the restitution has not been fully paid when the Service determines that the amount of the civil tax liabilities are less than the restitution, the government should notify the court and move that it make appropriate modifications to the order. If the restitution is fully paid, then the excess is an overpayment that can be applied against the taxpayer's other outstanding tax liabilities and any balance refunded, after a claim for refund is filed. If no claim for refund is filed within the applicable period of limitations, then the excess can be moved to the general fund.

4 comments:

  1. In the case of a subsequent chapter 13 bankruptcy discharging all tax liabilities contained in the restitution order, where would restitution payments be applied? Credited toward future tax liabilities?

    ReplyDelete
  2. Anonymous:

    Thanks for your question. I have not thought about the question and am certainly not a bankruptcy expert. I have rattling around in my brain, however, that there is no discharge for fraudulent items, and I would think that restitution relates to fraudulent items. I have not researched the issue, though.

    Jack Townsend

    ReplyDelete
  3. When someone has a payoment arrangement in place for federal restitution, does that mean they will get to keep their fedeal tax return? The agreement states that they would.

    Whats your thought on this matter?

    ReplyDelete
  4. Anonymous,

    I am not sure what exactly your question is. Could you reshape it?

    Thanks.

    And on another point. Since you are anonymous, I do not know who you are. I would prefer that this message be sent to you "offline," but don't know how to do that.

    I am sure you know that I monitor the comments and do not authorize some comments. I have rarely done that in your case because the substance of your comments is generally very good, even when made with a modicum of hyperbole. However, sometimes your comments go overboard and, in my judgment, the hyperbole swamps the substance of the message. In those cases, I will exercise my discretion to not approve the comments. I guess an alternative would be for me to edit to exclude the hyperbole and post the comment with attribution to "Anonymous;" I have not done that because they are your comments and not mine.

    So, I guess my request would be to really think about your intended audience for the comments and ask yourself the question of whether the message is being effectively communicated.

    Thanks again for your interest in this blog and for your generally very excellent contributions to the discussion.

    Jack Townsend

    ReplyDelete

Please make sure that your comment is relevant to the blog entry. For those regular commenters on the blog who otherwise do not want to identify by name, readers would find it helpful if you would choose a unique anonymous indentifier other than just Anonymous. This will help readers identify other comments from a trusted source, so to speak.