Disclaimer: the information contained herein was not prepared by any person licensed to practice law, so no guarantee is given that the information provided in this Web site is correct, complete, and up-to-date. While every effort has been made to provide accurate information and practical advice, the information contained on this website in no way be considered a substitute for the advice of a qualified attorney.
Federal Restitution is a confusing thing for most people and there is not much information to explain it. Many people have large amounts of restitution that you are being ordered to pay and realistically they can never pay it back. The government knows you can’t pay it back, but they will try their hardest to get as much as they can. The Mandatory Restitution Act of 1996 established procedures for determining the amount of restitution to which a victim may be entitled, and if there was loses, it requires a sentencing court to impose restitution in the full amount of the victim’s losses, without regard to the defendant’s ability to pay.
There is obviously a concern over the size of uncollected federal restitution, estimated as roughly $46 billion. Much of federal restitution is uncollectible due to the fact that the defendants are indigent
That is the major issue with restitution, once someone has been convicted of a crime and have a criminal record their earning potential is greatly diminished, and just affording daily living expenses becomes a challenge for most people with a criminal record, additionally, on top of that, they are expected to pay a percentage of their income to the government.
When you are sentenced and the judge sets a restitution for you, they may set some repayment options for you.
- They could add interest to the restitution while you are paying it back.
- They can set the amount allowed to be collected, for example, 10% of your gross pay is a popular one judges have set.
- They could order a set amount such as $200-$1000 a month
- Or the court leaves it up to probation to decide your repayment amount/plan.
Fighting Restitution Before Sentencing
Before your sentenced they will put together a Presentence Investigation Report (PSI). This is a report into the history of person convicted of a crime before sentencing to determine if there are extenuating circumstances which should ameliorate the sentence or a history of criminal behavior to increase the harshness of the sentence. Another important aspect of the presentence investigation report is the inclusion of restitution information in those cases where restitution is a consideration or required by law. This information includes identification of the victim(s) of the case and the precise amount of restitution that should be ordered by the Court. During the investigation into the financial status of the defendant, the probation officer will analyze the defendant’s financial records and will recommend to the Court a repayment plan and any lump sum payments that can be made at the time of sentencing.
It’s extremely important to fight your restitution before your sentenced, once your sentenced it’s much harder to fight the restitution amount. Most of the time they just say you owe “X” amount with no explanation on how they came to that total. You can request an itemized list of the damages for better explanation and fight every item on it, it’s your right. More importantly, the court sometimes makes a mistake and orders someone to pay restitution when they should not be ordered to do so. That’s why it’s imperative you do your own due diligence investigation of the restitution.
Paying Restitution After Sentencing
The 5th Amendment says that they can deprive you of your property without due process. As soon as you are found guilty and restitution is ordered, your property can be taken. Depending on the amount you owe, victims involved, and how bad they want their money, they may move in fast. Expect anything to be taken: home, cars, bank accounts, other assets. Remember anything that has value can be taken to pay towards your restitution.
Paying Restitution While In Prison
This surprises a lot of people but they will can start collecting restitution from you while you are in prison. How much depends on a few factors, such as how much you make at your prison job and how much you receive in your commissary account from people on the outside. The minimum they can start people paying is $25 every three months, but if you receive too much commissary funds or your pay grade from your job goes up, they will raise how much you have to pay. I’ve heard of some people having to pay $150 a month while they are in prison.
Paying Restitution While On Supervised Release
Once you are on supervised release you must pay restitution. You will be asked to fill out a number of forms disclosing assets, income (including income from spouse and dependents living with you), bank accounts, retirement account, etc. Word of advice, don’t lie on these forms, you don t want to go back to prison for hiding assets. If the judge sets up a payment plan at your sentencing, probation will follow what the judge ordered; probation can’t order you to pay more. If the probation officer tries to collect more, you need to remind them the judge setup a payment plan. If there is a change in ability to pay (more or less) probation can report to the Court who can then decide to modify the payments that are ordered. Don’t expect to receive any tax refunds either, the IRS most likely will have you flagged in their system to intercept your refund for payment towards your restitution.
However, if the judge did not setup a payment plan for you, probation will decide your payments for you. This can get tricky for people real fast, depending on what type of probation officer you have and your income; you may have to make payments from $100 – $1000. If you are having financial issues contact your probation officer immediately and tell them so they can work out a better payment plan. If probation doesn’t budge on reducing payments, and you are having serious financial issues, then send anything you can afford to send, since it will be harder for them to argue to a judge to violate your probation for not paying the full amount. Sending something (anything) makes a different statement then sending zero.
Paying Restitution When Supervised Release Ends
A common question I hear is, “What happens when I’m off supervised release? Do I still owe restitution?”. When you finish your supervised release this does not release you from restitution liability; your restitution will be transferred and supervised by the Federal Litigation Unit (FLU) for the next twenty years. YOU CAN NOT GO BACK TO PRISON once you are off supervised release if you attempt to avoid pay your restitution. When you are off supervised release your restitution will become a civil matter. The FLU will send you financial income reports to fill out. It’s up to you if you want to fill them out or not, these income reports are voluntary but if not furnished the US DOJ may seek disclosure through other means.
The FLU is seriously behind on collecting restitution at this time (some people do not hear from them for years). One source had this to say about the Federal Litigation Unit on collections:
The Federal Litigation Unit rates the cases on a scale from 1-4. 1 cases are the priority cases. 4 cases are not given a second glance. Cases are revisited every four years. They simply do not have the time, money or other resources to pursue every one. They are not going to reprosecute you, put out a warrant for your arrest or put you back in prison. They are a joke. If you left the country owing restitution, enjoy your time. They are not going to come looking for you.
The FLU can do the following to collect the restitution:
- Garnish your paycheck up to what your state allows for garnishment, 15% is common.
- Take your federal tax return refund (if any).
- Place liens on your home and land.
- Seize your assets.
- Take your 401K, IRA, Roth IRA, investment, and retirement accounts.
- Take part of your social security check.
- Empty your bank accounts.
- Take an Inheritance that a deceased family member has left to you.
- Your pension once you start receiving it.
- Much more.
The FLU however will not let you starve, they will leave you enough to live off of. Just remember when your restitution is under the FLU’s control you have rights too, consult an accountant and/or lawyer when you want to protect yourself and know your rights.
When Does Paying Restitution End?
The general rule is that a restitution judgment is enforceable for 20 years after a defendant is released from imprisonment. According to a DOJ website, “A defendant’s liability to pay a restitution order lasts twenty (20) years plus any period of incarceration, or until the death of the defendant.” See 18 U.S.C.A. § 3613. If you were in prison for a while, the 20 years starts from your release.
Common Federal Restitution questions
Question – Can I discharge my federal restitution by declaring bankruptcy?
Answer – Federal Restitution can not be discharged with bankruptcy. There have been a few rare occasions that it has been allowed because the individual who owed it was severely disabled and could not work and paying back restitution would put economic hardship on their family.
Question – Can I get a mortgage to buy a house if I owe restitution?
Answer – Every mortgage application I have reviewed has a Declarations section that ask the following, “Are there any outstanding judgements against you?”. This applies to restitution too and mortgage loan fraud is any misstatement, misrepresentation, or omission made by someone trying to get a loan which is relied upon by a lender, so don’t try hiding it. All mortgage companies and banks I’ve talked to require anyone who has a judgement against them to satisfy the judgment before they’ll give anyone a mortgage. They do this because they know the chances of a lien being placed against the home will occur and most people are likely to stop paying the mortgage.
Question – The company I owed federal restitution went out of business, do I still owe the money?
Answer – This is a really tricky one that could have a few answers. Here is the best answer I found,
It depends on whether anyone has a right to that payment. If the company was a d/b/a or sole proprietorship, the owner would likely still be entitled to the payments. If the company’s assets were acquired by another business, the acquiring one probably also received the right to your payments. If the company went bankrupt and liquidated, then the bankruptcy probably contains a provison to collect payments like these and distribute them to creditors.
On the other hand, if a corporation or LLC was dissolved without anyone taking over the interest in this debt, then the debt is probably wiped out.
You should make good faith efforts to find out the status–call all contact numbers, write to any contact addresses, etc. If you can’t locate a responsible party (and if you do, don’t simply take their word for it; you can ask for proof or documentation of their right to the payments), then you might cease payment while being prepared to resume it if it’s demonstrated that you need to. source: http://www.freeadvice.com/law-questions/the-company-im-paying-res-39272.htm
Question – The person I owed federal restitution died, do I still owe the money?
Answer – Yes you do. After the persons death the restitution is transferred to the person’s estate, which will be transferred to their heirs. Therefore you restitution will become part of someone’s inheritance.
Question – Can my spouses assets and property be taken to pay my restitution?
Answer – This is a tricky question, but yes they can. Anything that is jointly owned by both of you is game, any joint bank accounts, retirement accounts, property, homes, vehicles can be taken. For your spouse to protect them self they need to take a serious of steps before you are sentenced to equally separate any financial accounts and transfer any of their property into their name. Attempting to transfers all your assets to your spouse will not work, any assets that you have transferred or sold since the date of your arrest, or any assets that someone is holding for you is fair game to be taken. Even divorcing to protect your money and assets may not work either, the U.S. Attorney’s Office may claim that the divorce was just a way for the couple to avoid paying the restitution. Talk to a lawyer to figure out how your spouse can legally protect them self. Don’t try transferring to other people or business entities either to try and hide or protect the asset, these are called ‘nominees’ and will be nullified and seized.
Question – Can I settle my federal restitution with the victim for a lower amount?
Answer – Yes you can, but only if the victim or victims agree to it. This is lengthy process that requires a lawyer. Do not contact the victim’s directly, have your lawyer talk with probation and the US attorney’s office first so they can contact the victim’s to see if they will agree to a smaller settlement. Also, if you think your money woes end when you settled that restitution, think again, because forgiven restitution becomes taxable income! Why? The U.S. Internal Revenue Service considers forgiven or canceled restitution as income. Taxpayers must report that portion on a 1099-C forms. Don’t think not filing the 1099-C form will get your off the hook, the Federal Litigation Unit once notified the restitution has been settled or negotiated for a smaller amount will notify the IRS about the forgiven restitution and the IRS will be expecting that 1099-C form on your tax return at the end of the year, and not filing it could lead risk of IRS audits, penalties, fines, or possible criminal charges. How much will you owe? That’s hard to say, there are various factors that need to be considered such as the forgiven amount, your liabilities, assets, etc, this will best be answered by an attorney and tax professional. Don’t expect to walk away not owing the IRS any money.
Question – My Paycheck is being garnished for Child Support payments, can they garnish more to pay my restitution?
Answer – If there are already garnishments on your income at your states maximum garnishment percentage, they cannot garnish more. For example if your state has a maximum garnishment rate of 25% of your pay check, and child support is taking that 25%, they cannot garnish anymore to pay towards restitution.
Question – Can I deduct my restitution payments on my taxes?
Answer – No you can’t deduct your restitution payments on your tax return . Restitution is considered a penalty, and under the IRS tax code you can’t deduct penalties, fines, or restitution.
Question – Can my pension be taken to pay restitution?
Answer – Pensions can only be garnished to pay off court-ruled restitution when a participant is eligible to receive pension benefits under the plan. This means when you start collecting your pension fund, it can be garnished to pay restitution in criminal cases according to a recent ruling by the U.S. Court of Appeals for the 9th Circuit. The court held that the Victim’s Restitution Act of 1996 clears the way for victims to go after funds held in an individual’s pension account when seeking restitution in criminal cases. Prior to this ruling, courts followed federal pension law, the Employee Retirement Income Security Act of 1974, which specifically holds that pensions cannot be used to pay restitution. source: http://www.pensionrights.org/issues/cases/court-rules-pensions-can-be-sought-after-pay-restitution
Question – I owe of restitution, what happens when I retire?
Answer – Retirement does not release you from your restitution liabilities, as long as the FLU says you owe money they will continue to try to collect it, and they can garnish a part of your social security and pension to get it.
Question – Can my Social Security be taken to pay restitution?
Answer – Social Security benefits are usually protected from garnishment and levy, but restitution can be garnished under the Mandatory Victim Restitution Act of 1996. source: https://faq.ssa.gov/link/portal/34011/34019/Article/3812/What-are-the-laws-allowing-the-garnishment-and-levy-of-Social-Security-benefits
Question – How can avoid pay my restitution once I’m off Supervised Release?
Answer – That’s a question I’ll leave up to your accountant and lawyer to explain. Once you are off Supervised Release your restitution is now a civil matter and the FLU can do more than regular debt collectors can collect the restitution. You can do just as much as you can to avoid a normal debt collector as the FLU. The only way I know for a person to avoid paying their restitution entirely is for them to die or leave the country.