Opinion
Case No. 3:00cr019
01-06-2014
UNITED STATES OF AMERICA, Plaintiff, v. WALTER M. MAKEN, Defendant.
JUDGE WALTER H. RICE
DECISION AND ENTRY STRIKING THIS COURT'S NOTATION ORDER OF
APRIL 5, 2010, OVERRULING, WITH WRITTEN DECISION TO FOLLOW
MOTIONS 623, 624, 627, 628, 629 AND 637; DECISION AND ENTRY
OVERRULING, WITH REASONING GIVEN, THE FOLLOWING MOTIONS
OF DEFENDANT: 623, 624, 627, 628, 629, 630, 631, 632, 634, 635, 636, 637,
638, 639; DEFENDANT'S REQUEST FOR DETERMINATION AND STAY
(DOC. #639-1) OVERRULED AS MOOT; DEFENDANT'S MOTION FOR
RETURN OF ALREADY CONFISCATED FUNDS (DOC. #639-2)
OVERRULED
On April 5, 2010, this Court filed a Notation Order, overruling, with written decision to follow, the following Motions of the Defendant, to wit: 623, 624, 627, 628, 629 and 637. That Notation Order is STRICKEN in its entirety, in order to avoid confusion on the docket of this Court.
When Defendant was sentenced on April 23, 2004, following a conviction of tax evasion and willful failure to file income tax returns, he was ordered to pay, inter alia, restitution to the Internal Revenue Service ("IRS") in the amount of $25,644.00, plus penalties and interest, as well as any unpaid balance to his costs of prosecution, an amount later determined to be $2,495.61. Defendant was discharged from supervised release on February 9, 2009, having failed to make any payments on the restitution to the IRS or the costs of prosecution during his term of supervision. As of May 1, 2009, the Defendant's liability, including accrued interest, amounted to $31,360.26. The IRS has determined that Defendant is currently unable to pay his tax liability.
The United States Attorney's Office has nevertheless referred the debt to the Treasury Offset Program. As a result, money has been deducted from Defendant's monthly Social Security payments. Defendant maintains that this creates a financial hardship. He asks the Court to determine that the debt is currently uncollectible, and to halt the deductions. He also asks the Court to order the return of the $3,984.25 already deducted from his Social Security payments. Docs. ## 623, 624, 627, 628, 629, 630, 631, 632, 634, 635, 636, 637, 638, 639.
As an initial matter, the Court notes that it is the United States Attorney's Office that is responsible for collecting the restitution and other penalties ordered by the Court. The mere fact that the IRS has determined that Defendant is currently unable to make payments toward his tax liability does not absolve Defendant of his court-ordered obligations.
Moreover, the Court has no authority to order the United States to halt its collection efforts through the Treasury Offset Program ("TOP"). In United States v. Weissenbach, 3:08CR172-1, 2010 WL 2246177, at *2 (W.D.N.C. June 2, 2010), the court rejected the defendant's request to reduce TOP deductions from his Social Security payments. The court acknowledged that when there has been a "material change in the defendant's economic circumstances that might affect the defendant's ability to pay restitution," it has authority to adjust restitution payment schedules under 18 U.S.C. § 3663(k). It held, however, that "TOP offsets are not part of any court payment schedule, but are instead part of the government's collection efforts. There is no statute that prohibits the United States from conducting such collection activity once the restitution order is imposed . . . ." Id.
In any event, the United States Attorney's Office has already, pursuant to its own policies, suspended its collection of Defendant's debt in this case. Doc. #640, PageID#4347. Defendant's request to declare the debt as currently uncollectible, and to halt the TOP deductions from his Social Security payments (Doc. #639-1), is therefore OVERRULED AS MOOT.
Defendant has also moved for a return of $3,984.25 in already confiscated funds (Doc. #639-2). That request is also OVERRULED. As previously stated, Defendant is not absolved of liability pursuant to this Court's Judgment Entry in his criminal matter, merely because the IRS has chosen not to collect the tax liability pursuant to its internal policies. The Government's responsibility to collect the debt issued by order of this Court is governed by statute, not by the internal policies of the Internal Revenue Service. Given that the debt incurred by the Defendant, pursuant to his actions and the order of the Court, is a valid debt and the Government's collection efforts were lawful, he is not entitled to the return of previously offset payments.
For the reasons set forth above, the Court OVERRULES the following motions: Docs. ## 623, 624, 627, 628, 629, 630, 631, 632, 634, 635, 636, 637, 638, 639.
__________________________
WALTER H. RICE
UNITED STATES DISTRICT JUDGE
Copies to: Counsel of record