Restitution is assessable because the Title 18 conspiracy count embraced the Title 26 false-return count (not a Westbrooks case)

Plain-English summary

Under section 6201(a)(4), the IRS can assess court-ordered criminal restitution for unpaid tax as if it were a tax, but only when the restitution was ordered 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 a particular case is not a Westbrooks case. The defendant was convicted on two counts: a Title 18 conspiracy to make false claims against the United States, and a Title 26 count of aiding and assisting in preparing a false return. Because the false return was listed as an overt act in furtherance of the conspiracy, the Title 18 conduct embraced the Title 26 conduct. The email adds that identifying restitution as a special condition of supervised release sets only a payment schedule; it does not limit the government's ability to collect the restitution to the imprisonment and supervised-release period. So the restitution is assessable.

Ruling snapshot

• Question: Is the ordered restitution assessable by the IRS, or is this a "Westbrooks" case where restitution was limited to a condition of supervised release?
• Outcome: Advice given (not a Westbrooks case; restitution assessable)
• Key authorities: IRC § 6201(a)(4); United States v. Westbrooks

Full text (IRS public release)

ID: CCA_2021052716461644
UILC: 6201.01-06

Number: 202142014
Release Date: 10/22/2021
From: ----------------------
Sent: Thursday, May 27, 2021 16:46:16
To: -------------
Cc: -------------------------------------------------------
Bcc:
Subject: RE: Form 13308-14104-Restitutuion Only----------------WESTBROOK CASE

This is not a Westbrooks case. The defendant was convicted on two counts: conspiracy
to make false claims against the United States under Title 18, and aiding and assisting
in preparing a false return under Title 26. The false return in question is listed as one of
the overt acts in furtherance of the conspiracy. The conduct alleged for the Title 18
count thus embraces the conduct alleged for the Title 26 count. The fact that the
payment of restitution is identified as a special condition of supervised release does not
limit the collection of restitution to the period identified – it imposes a schedule under
which the defendant is obliged to make payments during the period of imprisonment
and supervised release, but does not expressly limit the government’s ability to collect it
to the period of imprisonment and supervised release.

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