A supervised-release condition to "pay taxes" with no fixed sum is not an assessable restitution order

Plain-English summary

This is Chief Counsel email advice on when the IRS can assess criminal restitution as if it were a tax. Section 6201(a)(4) lets the IRS assess and collect restitution that a criminal court orders a defendant to pay to the United States. The question was whether a sentence qualifies when it requires the defendant to pay taxes during supervised release but names no specific amount. The advice: no. The IRS treats a restitution order as assessable only when the court imposes a sum certain, and here no fixed amount appears in the judgment, the sentencing hearing transcript, or any separate restitution order. A general condition of supervised release to cooperate with the IRS or pay taxes, without a stated dollar figure, is not an assessable order of restitution. It matters because it marks the line between an ordinary release condition and a restitution order the IRS can turn into an assessment.

Ruling snapshot

• Question: Is a supervised-release condition requiring a defendant to pay taxes, but stating no sum certain, an assessable order of restitution under section 6201(a)(4)?
• Outcome: Advice given (no; without a sum certain there is nothing to assess)
• Key authorities: IRC § 6201(a)(4)

Full text (IRS public release)

ID: CCA_2021072113061244 [Third Party Communication:

UILC: 6201.01-06 Date of Communication: Month DD, YYYY]

Number: 202147011
Release Date: 11/26/2021
From: ----------------------
Sent: Wednesday, July 21, 2021 13:06:12
To: ----------------
Cc: ---------------------
Bcc:
Subject: RE: Criminal Restitution Counsel Opinion assistance--------

This is not an assessable order of restitution under section 6201(a)(4). While the court
imposes upon the defendant a duty to pay taxes during the period of supervised
release, the court does not specify a sum certain due as restitution to the United States.
Courts often impose conditions of supervised release requiring a taxpayer to cooperate
with the IRS or pay taxes, but we do not treat these as assessable orders of restitution
unless a sum certain is imposed by the court. Here, no such amount is specified either
in the court’s judgment, in the transcript of the sentencing hearing, or in any separate
order of restitution. There is some discussion in the sentencing hearing transcript about
restitution, but no sum certain is ever imposed as restitution against the defendant.

We discussed this with the Office of the Associate Chief Counsel (Procedure &
Administration). Please call if you have further questions about this matter.