Restitution is assessable because the Title 18 conspiracy count embraced all the Title 26 false-return counts, so it was an independent part of the sentence (not a Westbrooks bar)

Plain-English summary

Under section 6201(a)(4), the IRS can assess and collect 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 question these advisories call a "Westbrooks" case). This short Chief Counsel email advises that a particular case is not a Westbrooks case. The defendant was convicted of a Title 18 conspiracy to defraud the United States and five Title 26 counts of aiding and assisting in preparing false returns. Because the overt acts alleged for the Title 18 conspiracy count included preparing the same false returns underlying the Title 26 counts, the conspiracy conduct embraced all the tax conduct. Restitution was therefore ordered as much for the Title 18 count as for the Title 26 counts, and the court had authority to impose it as an independent part of the sentence under the Mandatory Victims Restitution Act. 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 not an independent part of the sentence?
• Outcome: Advice given (not a Westbrooks case; restitution assessable)
• Key authorities: IRC § 6201(a)(4); the Mandatory Victims Restitution Act

Full text (IRS public release)

ID: CCA_2021050315420044
UILC: 6201.01-06

Number: 202142011
Release Date: 10/22/2021
From: ----------------------
Sent: Monday, May 3, 2021 15:42:00
To: -------------
Cc: --------------------------------------------------------------
Bcc:
Subject: RE: ------- CI Closing Package

I agree that this is not a Westbrooks case. The defendant was convicted of conspiracy
to defraud the United States under Title 18, United States Code, and five counts of
aiding and assisting in the preparation of false federal income tax returns under Title 26,
United States Code. The overt acts alleged in the indictment for the Title 18 count
include preparing each of the false returns with which the defendant was alleged to
have aided and assisted in preparing in each of the Title 26 counts – you can see this if
you compare the paragraphs identifying (by initials) the taxpayers in the overt acts with
the taxpayers identified for each of the Title 26 counts. The conduct alleged for the Title
18 count thus embraces all of the conduct alleged for the Title 26 counts, and the
restitution, being ordered as much for the Title 18 count as for the Title 26 counts, was
within the district court’s authority to impose as an independent part of the sentence
under the Mandatory Victims Restitution Act.

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