Collateral sentence challenge does not delay restitution assessment

Plain-English summary

The IRS considered whether it could assess criminal restitution while an appeal involving a motion under 28 U.S.C. § 2255 remained pending. Section 6201(a)(4)(B) delays assessment until appeals of the restitution order itself are complete. A section 2255 motion challenging imprisonment is a collateral attack on the sentence, not an appeal of the restitution order, and granting it would not affect the restitution. The IRS therefore advised that the pending section 2255 matter did not prohibit the restitution assessment.

Ruling snapshot

• Question: Does a pending appeal involving a 28 U.S.C. § 2255 motion prevent the IRS from assessing criminal restitution?
• Outcome: Advice given
• Key authorities: IRC § 6201(a)(4)(B); 28 U.S.C. § 2255

Full text (IRS public release)

ID:      CCA_2016032309174852
UILC:    6201.01-06

Number: 201616011
Release Date: 4/15/2016
From:
Sent: Wednesday, March 23, 2016 9:17:48 AM
To:
Cc:
Bcc:
Subject: FW: restitution question


Your question was whether a restitution assessment would be premature if at the time
the assessment was made, there was appeal pending under 28 U.S.C. § 2255. A 28
U.S.C. § 2255 motion is a motion to vacate, set aside or correct a sentence. It
presumes that the motion is filed by a prisoner, because it is available to a prisoner in
custody under a sentence of a court claiming the right to be released upon the grounds
that the sentence was in violation of the Constitution or U.S. laws, or that the court was
without jurisdiction to impose the sentence, or that the sentence was in excess of the
authority of law, or that it was subject to a collateral attack.

For the purposes of a restitution-based assessment, however, the focus is on an order
of restitution. Section 6201(a)(4)(B) provides that the assessment “shall not be made
before all appeals of such order are concluded and the right to make all such appeals
has expired.” The term “such order” in the phrase “all appeals of such order” refers to
the restitution order itself, not the overall sentence. If a defendant is appealing the
denial of a 28 U.S.C. § 2255 motion to vacate a prison sentence, it is not an appeal of
the restitution order. If a motion under 28 U.S.C. § 2255 is granted, the result would be
that the taxpayer would be released. It would not have any effect on the restitution
ordered. See, e.g., Smullen v. United States, 94 F.3d 20, 22 (1st Cir. 1996) (“The
principal issue is whether a criminal defendant, who is in custody, may under 28 U.S.C.
§ 2255 collaterally challenge the restitution order imposed as a part of his sentence.
[O]nly two circuits to have explicitly addressed this matter, we hold he may
not.”). Therefore, the IRS is not prohibited from making a restitution assessment while
the 28 U.S.C. § 2255 motion was pending.