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.