Restitution is assessable because it is attributable to both the Title 18 conspiracy count and the Title 26 false-return count for the same year (not a Westbrooks case)

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 short Chief Counsel email advises that this is not a Westbrooks case. The defendant was convicted of subscribing a false return and conspiring to defraud the United States. The Criminal Monetary Penalties entry states the restitution is for both counts, and the affirmative acts of the conspiracy and the false-return count both involved filing the defendant's return for the same year. Because the same conduct supports both counts, the restitution is attributable to both, was mandatory under the Mandatory Victims Restitution Act, and was imposed as an independent part of the sentence, so it is assessable.

Ruling snapshot

• Question: Is the ordered restitution assessable, or is this a "Westbrooks" case?
• Outcome: Advice given (not a Westbrooks case; restitution assessable)
• Key authorities: IRC § 6201(a)(4); United States v. Westbrooks; the Mandatory Victims Restitution Act

Full text (IRS public release)

ID: CCA_2021032217445144
UILC: 6201.01-06

Number: 202141019
Release Date: 10/15/2021
From: ----------------------
Sent: Monday, March 22, 2021 17:44:51
To: -------------
Cc: --------------------------------------------------------------
Bcc:
Subject: RE: Another possible not-Westbrooks case

This is not a Westbrooks case. The defendant was convicted (among other counts) of
one count of subscribing a false return and one count of conspiring to defraud the
United States. The restitution payable to the IRS shown under Criminal Monetary
Penalties expressly states that the restitution is for both the conspiracy count and the
false-return count. In addition, the affirmative acts in furtherance of the conspiracy both
involved filing the defendant’s income tax return for a certain year, and the false-return
count involved filing a false return for the same year. Accordingly, the same conduct
alleged for the conspiracy count was alleged for the false return count, and the
restitution is therefore attributable to both. Restitution to the government was therefore
mandatory under MVRA and we would conclude that it was imposed as an independent
part of the sentence.

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