Restitution is assessable because the defendant's Title 26 plea agreement to pay restitution made it an independent part of the sentence (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's plea agreement to a Title 26 crime stated that he agreed to pay restitution, so the district court had authority to impose restitution as an independent part of the sentence. Although the judgment also listed restitution as a condition of supervised release, it was not imposed solely as such because it was also listed under Criminal Monetary Penalties. The email notes that the payment schedule in the judgment does not control whether restitution was ordered as an independent part of the sentence, which is the central Westbrooks question. 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 imposed solely as 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_2021050513431244
UILC: 6201.01-06

Number: 202142012
Release Date: 10/22/2021
From: ----------------------
Sent: Wednesday, May 5, 2021 13:43:13
To: -------------
Cc: -------------------------------------------------------
Bcc:
Subject: RE: Criminal Restitution Counsel Opinion Westbrooks----

This is not a Westbrooks case. The defendant’s plea agreement to a Title 26 crime
states that he agrees to pay restitution, so the district court had the authority to impose
restitution as an independent part of the sentence. While the payment of restitution is
also specified as a condition of supervised release, it is not imposed solely as a
condition of supervised release because restitution is also listed under Criminal
Monetary Penalties. The schedule of payments specified in the judgment for the
payment of restitution does not govern whether restitution was ordered as an
independent part of the sentence and not solely as a condition of probation or
supervised release, which is the central question we try to answer when deciding
whether or not a case is subject to Westbrooks.

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