Restitution is assessable because the Title 18 conspiracy count includes the conduct of all three Title 26 false-return counts and is due immediately (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 one Title 18 conspiracy count and three Title 26 counts of subscribing false returns. The indictment's overt acts of the conspiracy included subscribing the false returns for each of the three years and concealing income, so the Title 18 count includes the conduct of each Title 26 count. Restitution was mandatory under the Mandatory Victims Restitution Act, is due immediately upon entry of the amended judgment, and was imposed as an independent part of the sentence rather than a condition of supervised release, 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_2021032308335944
UILC: 6201.01-06

Number: 202141020
Release Date: 10/15/2021
From: ----------------------
Sent: Tuesday, March 23, 2021 08:33:59
To: -------------
Cc: --------------------------------------------------------------
Bcc:
Subject: RE: Is this Westbrooks?

This is not a Westbrooks case. The defendant was convicted on four counts: one count
of conspiracy to defraud the United States under Title 18, and three counts of
subscribing false returns under Title 26. The indictment lists certain overt acts in
furtherance of the conspiracy, which included subscribing false returns for each of the
three years covered by the latter counts (and other overt acts involving concealment of
income for each of those years). The conduct covered by the Title 18 count includes the
conduct covered by each of the Title 26 counts, so that the restitution was imposed for
the Title 18 count as much as for the Title 26 counts. There is no indication that the
district court intended to limit the restitution obligation to a condition of supervised
release: the restitution obligation is due immediately upon entry of the amended
judgment. Because restitution was imposed for a Title 18 crime for which restitution was
mandatory under the MVRA, we conclude that the district court had the power to, and
did, impose restitution as an independent part of the sentence and not as a condition of
supervised release.

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