This is a Westbrooks case because the Title 26 conduct is separate from the Title 18 conduct and the government represented restitution could only be a condition of supervised release

Plain-English summary

Under section 6201(a)(4), the IRS can assess court-ordered criminal restitution for a Title 26 tax as if it were a tax, but only when it was imposed as an independent part of the sentence rather than solely as a condition of supervised release (the "Westbrooks" question). This Chief Counsel email advises that this is a Westbrooks case. It explains that restitution attributable to a Title 18 count can be an independent part of the sentence when the same conduct also gives rise to a Title 26 count, but here the Title 26 conduct is separate from the Title 18 conduct and no tax loss was suffered for the Title 18 counts. In addition, the government's own sentencing memorandum stated that restitution for a Title 26 count could be imposed only as a condition of supervised release. So the restitution is subject to the Westbrooks limitation.

Ruling snapshot

• Question: Is the ordered restitution assessable, or is this a "Westbrooks" case?
• Outcome: Advice given (this is a Westbrooks case; restitution limited to the supervised-release period)
• Key authorities: IRC § 6201(a)(4); United States v. Westbrooks; the Mandatory Victims Restitution Act

Full text (IRS public release)

ID: CCA_2021021007342944
UILC: 6201.01-06

Number: 202141017
Release Date: 10/15/2021
From: ----------------------
Sent: Wednesday, February 10, 2021 07:34:29
To: -------------
Cc: --------------------------------------------------------------
Bcc:
Subject: RE: Forms 13308-14104-No Tax COP-Restitution Only------------------- - WESTBROOKS CASE

This is a Westbrooks case. As you observe, conviction for a count under Title 18 can
give rise to an independent restitution order under the MVRA, and where the same
conduct that gave rise to the Title 18 count also gives rise to a Title 26 count, so that the
restitution imposed can be said to be attributable to both the Title 18 count as much as
the Title 26 count, the restitution could be attributed to the Title 18 count and thus
imposed as an independent part of the sentence even if the same restitution would also
have been due for the Title 26 count.

However, in this case, the conduct alleged in the indictment for the Title 26 counts is
separate from the conduct alleged for the Title 18 counts. The conduct is related, but
separate, and no tax loss was suffered for the Title 18 counts (----------------------------------
------------------------------------------for which the government -------------------------------------
suffered no loss for which restitution could be imposed). In addition, as you point out,
the government’s sentencing memorandum states that restitution may not be imposed
as an independent part of the sentence for a Title 26 count; the government thus
represented to the court that restitution could only be imposed as a condition of
supervised release.

Please call if you have any further questions about this matter.