Attorney-at-Law

UNSCHEDULED? – IT DEPENDS

In Uncategorized on 04/18/2019 at 16:06

The USDCJ spoke for most of humanity when he said “I don’t know what effect that has on the Internal Revenue Service with all your penalties and interests [sic] and whatever, it seems to me that if you hope to get anything out of this guy, freezing his number at $507,995 is a pretty good idea.  And that is what’s ordered by the court.” Randy Alan Carpenter, 152 T. C. 12, filed 4/18/19.

Randy Alan went down for two years’ worth of fraudulent returns, thus the $500K-plus restitution. But the USDCJ also ordered $100-per-month payments, although at the same time he said the entire amount was immediately payable.

Randy Alan claims he’s broke, but when IRS filed NFTL and NITL, Randy goes to Appeals, withdraws his request for collection alternatives, and says IRS needs a further order from USDCWDNC before they can grab whatever little he has.

No way, says Judge Mary Ann (“S.E.C. = She Eschews Cognomens”) Cohen.

“With the enactment of section 6201(a)(4) Congress expanded the Secretary’s collection authority in relation to criminal restitution ordered after August 16, 2010.  See Firearms Excise Tax Improvement Act of 2010 (FETIA), Pub. L. No. 111-237, sec. 3, 124 Stat. at 2497.  This provision directs that ‘[t]he Secretary shall assess and collect the amount of restitution under an order pursuant to section 3556 of title 18, United States Code, for failure to pay any tax imposed under this title in the same manner as if such amount were such tax.’” 152 T. C. 12, at p. 15. Moreover, IRS isn’t bound by SOL while any appeals from the criminal conviction are taken and decided. See Section 6501(c)(11).

As if. Hans Vaihinger, thou should’st be living at this hour.

There’s a whole megillah (please pardon arcane technical term) about whether a USDCJ’s oral comments about payment schedules overrides that same jurist’s statement that restitution is “immediately due.” When you’ve read the opinion and you’re thoroughly confused, the best I can tell you is “it depends.” In Randy Alan’s case, though he stuck to the schedule ($100-per-month), it avails him not. The USDCJ used the magic language in the magic way.

Neither Section 6230(b) nor Section 6330(b) precluded Randy Alan from offering a collection alternative, even in a restitution case, but he was behind four (count ‘em, four) years’ worth of tax returns when he petitioned, so that route didn’t look too auspicious.

IRS did abate interest and penalties. For the skinny on this, see my blogpost “IRS Gets Zip,” 10/3/17.

Takeaway- Criminal defense Bar, please stay safe out there. If you want a schedule, make sure the USDCJ says “schedule payment and not, repeat not, immediately due.”

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