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  #76  
Old 09-23-2009, 04:41 PM
chattycathy chattycathy is offline
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Based on my experience with the FLU, once you are off SR there is nothing they can or are going to do if you are not meeting your restitution payment. They can put a wage with-holding order in place IF you have a job and IF you are not already having child support with-held. IF you have an asset-something they can take..they may take it if they can locate it easily and without a lot of time/effort necessary on their part. They will put a federal lien on what you may own now or in the future. If you never own anything then there it sits. They are not interested in your spouse, your spouse's income or assets (even in community property states). The FLU in most states are overloaded with cases and very few people assigned to work on them. They rate 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 like a dog to a bone. 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. Anyone with a different experience is free to share, but I have long given away any fear with regards to restitution.
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  #77  
Old 09-26-2009, 10:55 PM
willwwf willwwf is offline
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If at sentencing you agreed to pay a certain amount, Can the FLU still go after your assets?
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  #78  
Old 10-16-2009, 05:26 PM
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Default restitution repayment, A prerequsite for out of state transfer

In December 2009, my boyfriend will be permitted to parole out of state if he is appoved and meets necessary criteria. I have paid his entire restitution because I was informed that this must be completed before his paperwork will be reviewd and processed. Will this increase his opportunity of a successful out of state transfer. In additon, can someone please inform me as to what other notarized documents are necessary to complete a successful out of state transfer bianca313
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  #79  
Old 10-18-2009, 07:55 PM
sorrynsad sorrynsad is offline
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Default can someone help me with this??

Hi there,

I will be going into federal prison for a white collar crime. I plead guilty and am probably looking at 36 months. The victim is the government. I did not pay withholding taxes to the government for my business....kept on thinking business would get better and I could take care of them later or make a deal, well found out the hard way that it was illegal to do so...

Anyway, the amount owed is around 6 million dollars....so my question for now is, how will this work. Let's say the judge says restitution is 10%? If my family gives me money for jail...so that I can purchase things....will I be able to? Or will they just take it away? or do they only take away $25/every quarter? I've seen very different things on the forum, and I just want to know if I will even be able to provide for myself, or if I won't be able to have any money, and will be the poorest sap in the camp/prison.

Please let me know what you guys think.

This forum is great. It is really helping me deal with the unknown.

Thanks,

SorryNSad
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  #80  
Old 10-25-2009, 10:43 PM
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Originally Posted by sorrynsad View Post
Hi there,

I will be going into federal prison for a white collar crime. I plead guilty and am probably looking at 36 months. The victim is the government. I did not pay withholding taxes to the government for my business....kept on thinking business would get better and I could take care of them later or make a deal, well found out the hard way that it was illegal to do so...

Anyway, the amount owed is around 6 million dollars....so my question for now is, how will this work. Let's say the judge says restitution is 10%? If my family gives me money for jail...so that I can purchase things....will I be able to? Or will they just take it away? or do they only take away $25/every quarter? I've seen very different things on the forum, and I just want to know if I will even be able to provide for myself, or if I won't be able to have any money, and will be the poorest sap in the camp/prison.

Please let me know what you guys think.

This forum is great. It is really helping me deal with the unknown.

Thanks,

SorryNSad
Based on my experience, the judgement order stated that the 10% was payable after incarceration during supervised release. while incarcerated it stated participation in inmate financial responsibility which amounts to $25 per quarter. inmates are allowed $290 per month that wouldn't be "garnished" or however you would say that. if someone sends you more than $290 than that could be taken in theory to pay restitution.
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  #81  
Old 10-26-2009, 03:08 AM
sorrynsad sorrynsad is offline
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Thanks !!
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  #82  
Old 10-26-2009, 09:47 AM
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Seeds.......would the $290 include money for Stamps, Phone Calls and E-mail or just commisary?

Thanks
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  #83  
Old 10-26-2009, 09:46 PM
persh persh is offline
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Originally Posted by sorrynsad View Post
Hi there,

I will be going into federal prison for a white collar crime. I plead guilty and am probably looking at 36 months. The victim is the government. I did not pay withholding taxes to the government for my business....kept on thinking business would get better and I could take care of them later or make a deal, well found out the hard way that it was illegal to do so...

Anyway, the amount owed is around 6 million dollars....so my question for now is, how will this work. Let's say the judge says restitution is 10%? If my family gives me money for jail...so that I can purchase things....will I be able to? Or will they just take it away? or do they only take away $25/every quarter? I've seen very different things on the forum, and I just want to know if I will even be able to provide for myself, or if I won't be able to have any money, and will be the poorest sap in the camp/prison.

Please let me know what you guys think.

This forum is great. It is really helping me deal with the unknown.

Thanks,

SorryNSad
Sorry to hear that... As a former jailhouse lawyer with six years of fed time who has a $2.5million restitution to pay, you might be in for some trouble AFTER you get out. They will make sure to force you to do a debtor's examination of your assets in order to make sure that the typical remedies are deployed. one of the worst (and most common) is the federal debt collection procedure act (FDCPA) which essentially is a free meal ticket for the feds to go into all aspects of your life (including: retirement accounts, inheritance, holding companies, etc).

Under the new law (MVRA), the judge does not have to consider your financial resources, and probably (most likely) will order full restitution, even though you plead guilty and probably got a reduced sentence. The restitution has to be equal to the damage that the government says you did. So, it's $6million that you owe the government if the judge is an a**hole and goes all the way. The idea of restitution is to make the "victim" whole and not necessarily expect that you will ever pay back the monies in their entirety.

Under the MVRA, your $6million will be treated as a tax lien and can be enforced for 20 years from when you get off paper. That is a heck of a long time - which should be sometime after 2030 in your case. Check out this case: US v. Ridgeway, 489 F.3d 732 (5th Cir 2007). This guy was taking care of his restitution as a gentleman's agreement with the people he defrauded, and the government still stuck it to him. He's under pre-MVRA law and this is happening.

My advice: do your time (don't let it do you) and get to reading in the library. Get a nice orderly job and make sure to keep the necessary commissary income low from family (but still steady). Keep good with the Case manager and do not piss them off. They have to review your individual finances to determine how the BOP can charge you for the inmate responsibility program (IRP). I think its pretty much set in stone until you start being stupid and getting a lot of money sent to you from home (i.e., $500/month) Stay modest. I could live pretty good on only $80/month...

BTW - They threaten you at the end of your sentence by claiming that they can affect everything at the Probation Office during your supervised release. In reality, the supervised release folks could care less about prison issues, they have compliance with court orders on their plate.
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  #84  
Old 10-26-2009, 10:10 PM
persh persh is offline
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Originally Posted by chattycathy View Post
Based on my experience with the FLU, once you are off SR there is nothing they can or are going to do if you are not meeting your restitution payment. They can put a wage with-holding order in place IF you have a job and IF you are not already having child support with-held. IF you have an asset-something they can take..they may take it if they can locate it easily and without a lot of time/effort necessary on their part. They will put a federal lien on what you may own now or in the future. If you never own anything then there it sits. They are not interested in your spouse, your spouse's income or assets (even in community property states). The FLU in most states are overloaded with cases and very few people assigned to work on them. They rate 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 like a dog to a bone. 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. Anyone with a different experience is free to share, but I have long given away any fear with regards to restitution.
Excellent post, chattycathy I guess i shouldn't tempt fate BUT... in 2005 I refused to cooperate with the FLU and divulge my finances via discovery and deposition as to my assets... Then, i objected to the proceedings as illegal under a set of cases which for me could arguably work (i.e., my old restitution from 1996 was not a "debt owing" to the government under the federal debt collection act) and we appealed to the 5th circuit and were denied due to a procedural appealability issue. the district court then issued a contempt order in 2005 for me to comply with discovery. I did nothing... And then - SILENCE for almost 5 years.

This open contempt order means nothing until the district judge actually imposes a sanction against me. The government has to ask the judge to do this (which they cannot seem to do)

the FLU just came back into my life in August 2009. the form letter they sent me didn;t even have the right name on it, and instead had some guy's name ("Mr. Sneed") wtf? lol

Last edited by persh; 10-26-2009 at 10:13 PM..
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  #85  
Old 10-26-2009, 10:29 PM
persh persh is offline
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What happens if you move to another country after you get off your SR? Will they be able to get you to pay your restitution if you stop paying once you relocated? What would happen if someone did this and came back to the states to visit, could they arrest you?
Yes, "willful abandonment" of your restitution obligation is a federal crime, regardless of where in the world you live. Assuming that the DOJ and the FBI cares about your case (very doubtful unless you are a millionaire) - they will track you in your foreign country of choice (I like Costa Rica) from your SSN, passport, and bank accounts, etc.

The alternate case is more probable. If you foolishly ever come back to the US, the homeland folks will definitely have a red flag on you when you check in and they will kindly escort you to a quiet holding area in some remote part of the airport - then after they detain you and confirm who you are -- you'll probably be arrested...

Last edited by persh; 10-26-2009 at 10:30 PM..
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  #86  
Old 10-26-2009, 10:41 PM
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FYI... one of my wifes cellies had her SR revoked because she applied for credit to buy a car. Her PO actually gave her verbal permission, but when the higher ups found out about it, her PO denied knowing anything about it and her SR was revoked and she has to spend the last 12 months back in the camp....Be careful and get everything in writing....

Looking for opinions on my own situation... My wifes lawyer suggested it was a good idea for us to divorce to protect me and my assets from the scrutiny of the FLU as well as her own debt that is going unpaid while she's locked up. He suggested she give me the house in the divorce as well. Now I'm concerned how her PO is going to feel about this and the possible repercussions.

She is serving a 12 month sentence and she went in 02/2009. The PO came by to check out the house last week and asked if it was ok for her to live here when released. I told him YES but I didn't mention the pending divorce. Her lawyer filed the divorce the day she went in and it will be final in the next week or so. I guess I'm just worried about further problems... I asked her lawyer if giving the house to me in the divorce would be looked at as hiding assets by the FLU, but he said it shouldn't be a problem... I guess I've just learned to expect the worst...
Interesting question: i was doing research on this precise point. My own opinion on this is that your wife's lawyer was correct in that strategic move. I would not, however, let your wife have any contact with you on paper whatsoever after she gets out. Have her live with another relative (not you) - for the simple reason that there is a bias toward spouses (or ex-spouses) as a means of hiding assets and other sundry lien-able property. You will be unduly scrutinized more so than another relative for discovery and other types of post-sentencing issues. Don't get into that - you will be sorry...

The question here is not what happened as to the divorce (i.e. transferring assets and moving property), rather what kinds of income could you potentially be hiding as an ex-spouse when your ex-wife gets out of prison? The presumption could be made by the U.S. attorney because you are letting her live in your place. They have a way of stretching things in directions you could have never thought of...
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  #87  
Old 10-26-2009, 10:58 PM
persh persh is offline
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What happens if you you simply do not pay? The minimum rest. payment has been set. Can you be reprosecuted for non-payment or misrepresentation about assets and income?
Yes, the current sentencing jurisdiction can enforce the statutorily mandated criminal restitution by incarcerating you for "willful failure" to pay. They CANNOT put you in jail if you cooperate, even a few dollars a month as per your income. You are supposed to let the FLU know of any "material" changes in your income - "material" means anything a reasonable person would believe was a substantial change from what you pay now.

The only problem here is (once-again), the FLU is overloaded and cannot even begin to know or even guess how well you have been "honest" with them... It's really up to you how far you want to play with them, either honestly or not. If you choose the latter, you had better expect them to not really hold anything back in prosecuting you.
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  #88  
Old 10-26-2009, 11:13 PM
persh persh is offline
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My boyfriend and I have been together for many years now, and he is in prison for the next 5 years. I am wondering what will hapen with the 300,000 dollars in restitution he is ordered to pay if we get marrried. I have a good paying job. Can they dock my pay? Will that make me responsible for his debts?
thanks!!
Aja
I would avoid commingling monies in any kind of engagement you have with this fellow. [Honestly - i hate to say things like this, but it might serve you better NOT to get married] I've seen situations where the government puts the spouse into lots of heartache for the mistakes of their partners. They love their partner at their own peril. It's not right, but it is the case with the feds.

The government cannot "in theory" come after you for your partner's restitution, but they can make the case that you are potentially shielding some of his liability and debt service to the government. They can probe into your assets, wages, liability in the hopes that they can convince the judge that you are paying a "living wage" for him. You may not receive a garnishment order, but you may be called to court to explain the extent of your business relations with him...

As i mentioned before, keep everything in your name. make no joint purchases. Do not share bank accounts. Do not even claim the same address: make him get a UPS store mail box (not P.O. box) and have his business go through that street address. He MUST use that mailbox for any type of business he conducts.

Good luck with your difficult situation...

Last edited by persh; 10-26-2009 at 11:15 PM..
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  #89  
Old 10-27-2009, 12:46 AM
persh persh is offline
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Originally Posted by gantoris
What happens if you move to another country after you get off your SR? Will they be able to get you to pay your restitution if you stop paying once you relocated? What would happen if someone did this and came back to the states to visit, could they arrest you?
--------------


I was assuming that he was still on probation... Under pre-MVRA law, the enforcement provisions of sec 3663(h) apply and allow the government to collect restitution as a "civil judgment" for up to 20 years from conviction. the government has recourse to civil provisions of law like depositions and hearings to compel your attendance... REALLY, all the judge has to do is issue a warrant for your arrest through the U.S. Marshall's service for no complying with their orders and what i mentioned in this post remains valid... persh

Last edited by persh; 10-27-2009 at 12:49 AM..
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  #90  
Old 10-27-2009, 04:07 AM
sorrynsad sorrynsad is offline
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Persh,

Thanks for all of your insight above. So, after I get out, the trouble will begin! A couple of questions for you.

1) We have no assets now...we are wiped clean, so my wife will be starting from scratch. Will that be a problem for her? Could they still go after anything she earns after I get out?

2) I understand they will probably stay on my debt for 20 years after I get out, but what will they probably collect? 10% of my gross income? 20% of my gross?

3) If it is 10% or 20% that seems doable. But when would it increase? I mean, if I am making 50k a year....or if I am making 200k a year....will they move it up from 10% or 20% to 50%?

4) If I am a sole heir for my parents estate...which is not worth much, but in 10 years, if they pass, might be worth 500k - 750k, mostly from property...will the gov make me sell it? Should we just have my parents create a living trust that it goes to, that I can be a trustee of?

I know these are all speculative questions, and your answers are only your opinion...but they sure help me to think about and plan for unseen circumstances. I would love to be able to pay the gov back for this debt, and I will try my hardest to do that, but I need to make sure that I can provide for my family, and my kids education.

Thanks a ton!

SorryNSad
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  #91  
Old 10-30-2009, 06:54 PM
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Persh,

Thanks for all of your insight above. So, after I get out, the trouble will begin! A couple of questions for you.

1) We have no assets now...we are wiped clean, so my wife will be starting from scratch. Will that be a problem for her? Could they still go after anything she earns after I get out?

2) I understand they will probably stay on my debt for 20 years after I get out, but what will they probably collect? 10% of my gross income? 20% of my gross?

3) If it is 10% or 20% that seems doable. But when would it increase? I mean, if I am making 50k a year....or if I am making 200k a year....will they move it up from 10% or 20% to 50%?

4) If I am a sole heir for my parents estate...which is not worth much, but in 10 years, if they pass, might be worth 500k - 750k, mostly from property...will the gov make me sell it? Should we just have my parents create a living trust that it goes to, that I can be a trustee of?

I know these are all speculative questions, and your answers are only your opinion...but they sure help me to think about and plan for unseen circumstances. I would love to be able to pay the gov back for this debt, and I will try my hardest to do that, but I need to make sure that I can provide for my family, and my kids education.

Thanks a ton!

SorryNSad
Inline:

(1) No they cannot go after her or her income or any other property or assets she accumulates after you are locked up and are released. The judgment is against you only and anything you possess or any type of income you earn. Remember: she should keep all of her possessions and assets in her name without you as a joint participant.

There are exceptions... for instance, if there are joint properties (non-homestead) between the two of you, the judge may order receivership and liquidation instituted by the government as part of an execution writ. after liquidation, she would keep her portion of the property as cash and your portion would go to the government. How that is split up is anyone's guess.

(2) I have no idea how the post-MVRA collections are being had with the USPOs around the country. They vary. one thing is certain, that the information the PO collects on you after release will be used to collect on the government's debt during supervised release. I think the only requirement for the amount they can collect is a "reasonable amount" (no case cite: sorry, but its from memory) - - SO, they cannot make you so poor that you are on the street (because then you cannot pay them at all) they want to get as much from your income as will not sting too much, and will make you compliant.

(3) when you change your income down or up you need to tell the PO. Or maybe just lie - in that case, they will not find out. But if they collect another finance report on you and there are contradictions, then you are in hot water... The PO will need to adjust accordingly your obligations.

I think to answer your question, they will ALWAYS increase the percentage of obligation per month the more you make. I guess, they can ask for more as a percent of you income, simply because you make more -- this isn't like bankruptcy where they want to keep your lifestyle at the same level before the government comes in... the USPO can care less about keeping a yacht lifestyle up and running

(4) Yes. SO-- make a living trust where everyone in your family except you is a beneficiary. Make it explicit that you cannot benefit from the trust at all. You should not be the trusee at all - it looks too suspicious, especially to the PO. With this case, your family is taken care of and the government can only collect what you make outside of the trust.

-P
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  #92  
Old 11-02-2009, 10:44 AM
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Thanks again Persh...

One last question...

A person can be gifted 13k a year, without really declaring it on taxes....

What if my parents or the trust gifted me money (up to 13k a year) after I got out. In your opinion, would that need to be reported on the monthly forms?

Thanks for your help!!

SorryNSad
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Old 11-02-2009, 04:44 PM
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Thanks again Persh...

One last question...

A person can be gifted 13k a year, without really declaring it on taxes....

What if my parents or the trust gifted me money (up to 13k a year) after I got out. In your opinion, would that need to be reported on the monthly forms?

Thanks for your help!!

SorryNSad
Yes, you would need to report that as income on your monthly report.
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Old 11-02-2009, 09:06 PM
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Interesting question: i was doing research on this precise point. My own opinion on this is that your wife's lawyer was correct in that strategic move. I would not, however, let your wife have any contact with you on paper whatsoever after she gets out. Have her live with another relative (not you) - for the simple reason that there is a bias toward spouses (or ex-spouses) as a means of hiding assets and other sundry lien-able property. You will be unduly scrutinized more so than another relative for discovery and other types of post-sentencing issues. Don't get into that - you will be sorry...

The question here is not what happened as to the divorce (i.e. transferring assets and moving property), rather what kinds of income could you potentially be hiding as an ex-spouse when your ex-wife gets out of prison? The presumption could be made by the U.S. attorney because you are letting her live in your place. They have a way of stretching things in directions you could have never thought of...

Thanks Persh...

We ended up not going thru with the divorce. My wifes lawyer was way to wishy-washy on what the possible repercussions might be. It just wasn't worth the risk. He started dancing around the issue claiming he couldn't really be sure of anything. Living with another relative, her mom, wasn't an option either. We have a son and she has 3 yrs SR, so we'll just have to deal with it as best we can. We already have seperate bank accounts and absolutely plan to keep everything completely seperate.

Another question... Her judgment states that she is to pay $500 per month in restitution, based on her income prior to going to jail. My assumption is that it will be re-evaluated after she goes back to work and adjusted accordingly. Is that correct? Is it possible that the PO may decide that she needs to pay more? The $500 will be impossible if she has to work for less than what she was making before going to jail. Honestly, even at the same pay, I'm not sure how she will be able to make that payment as well as the debts she defaulted on while in jail...

What happens if I refuse to disclose my income?

Her PO is a jerk. At the home visit many months ago, he tried to tell me her $100k restitution had to be paid in full by the time she got off SR in 3 yrs, so I needed to figure out what I was going to sell in order to make that happen because $500 a month wasn't going to get it done... I didn't respond to him and figured out at that point that it will be best for he and I not to have much interaction. His attempt at intimidation was lost on me...

She goes to HWH 5 wks from tomorrow...
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Old 11-03-2009, 01:39 AM
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Wow,

So the PO visits the home before we are even released from prison??? With a 6 million dollar debt, nothing to our name, and if a PO did that to my wife...well that would make her cry, be stressed out, and have a hard time.

Anyway...thanks guys for the above statements. From what I am learning, whatever I earn or bring in will need to be disclosed and will be subject to garnishment, whatever amount that is. This is fine.

I guess if my family needs extra money, they will need to earn it or get it in gifts, because whatever other people earn or receive is not necessarily able to be scrutinized or garnished by the government. Right?

Thanks!!

SorryNSad

Last edited by sorrynsad; 11-03-2009 at 01:41 AM.. Reason: formating...
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Old 11-03-2009, 06:42 AM
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Yes, they visit the home in preperation for release. I think they start working on that during the last 12mo of confinement. I think it's mostly to confirm it's an actual residence and to make sure it is ok that you live there once released. All the extra harrassment is just bonus for them...
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  #97  
Old 11-06-2009, 08:21 PM
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Originally Posted by AllThrtl View Post
Thanks Persh...

We ended up not going thru with the divorce. My wifes lawyer was way to wishy-washy on what the possible repercussions might be. It just wasn't worth the risk. He started dancing around the issue claiming he couldn't really be sure of anything. Living with another relative, her mom, wasn't an option either. We have a son and she has 3 yrs SR, so we'll just have to deal with it as best we can. We already have seperate bank accounts and absolutely plan to keep everything completely seperate.

Another question... Her judgment states that she is to pay $500 per month in restitution, based on her income prior to going to jail. My assumption is that it will be re-evaluated after she goes back to work and adjusted accordingly. Is that correct? Is it possible that the PO may decide that she needs to pay more? The $500 will be impossible if she has to work for less than what she was making before going to jail. Honestly, even at the same pay, I'm not sure how she will be able to make that payment as well as the debts she defaulted on while in jail...

What happens if I refuse to disclose my income?

Her PO is a jerk. At the home visit many months ago, he tried to tell me her $100k restitution had to be paid in full by the time she got off SR in 3 yrs, so I needed to figure out what I was going to sell in order to make that happen because $500 a month wasn't going to get it done... I didn't respond to him and figured out at that point that it will be best for he and I not to have much interaction. His attempt at intimidation was lost on me...

She goes to HWH 5 wks from tomorrow...
Well, you can't take blood out of a turnip!! I suspect that your biggest problem here is with the PO's attitude. Under an ideal situation, the PO would ask the judge to modify conditions of supervised released based on your wife's inability to pay the $500/month. Then, the judge would adjust and everything would be peachy keen. At this point, not talking to the PO is a good idea (i think) - this is advice that I would not ordinarily give, but there are times when not revealing too much is a good thing. NO - you do not have to pay all of the restitution before SR is completed (why would he say that??)

Anyway, I don't know how much power a PO has to compel your cooperation in the financial evaluation of your wife. Actually, I think all of this is a bunch of smoke... I would most definitely make sure that your wife was cooperative, but as for you - the government can't make you do anything - you were not convicted of any crime. A pissed off judge might yell at you, but that's about it... BUT let's not go there...

-P
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Old 11-06-2009, 08:27 PM
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Old 11-10-2009, 04:05 PM
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Default From a Tax Lawyer's website about Federal Liens

FEDERAL TAX LIENS, NOTICES OF LIENS UNDER 18 U.S.C. § 3613, MONEY JUDGMENTS IN FAVOR OF THE UNITED STATES – LIEN ATTACHMENT AND EFFECT ON ENTIRETIES PROPERTY

1. Introduction and short summary.

This article will address federal tax liens under 26 U.S.C. §6323 (2. below), notices of liens under 18 U.S.C. §3613 (3. below) and judgments in favor of the United States under 28 U.S.C. §3201, et seq. (4. below), regarding whether theses encumbrances attach to entireties property.

As indicated below, since federal tax liens (2. below) and liens under 18 U.S.C § 3613, including terrorism liens (3. below) are based on statutes that say the liens also attach to “rights to property” and not just “all property,” a lien against one spouse attaches to entireties property as discussed in 2. and 3. below, particularly because of the Craft case cited below. However, a judgment in favor of the United States discussed in 4. below against only one spouse does not attach apparently, for the reasons stated. It should be noted that encumbrances under 18 U.S.C § 3613 arise out of criminal liability, whereas 28 U.S.C. Title 28 judgments (discussed in 4.) are civil in nature. Also, it must be remembered that one reason for the different statutory language in Title 28 (discussed in 4.) is that Title 28 was drafted and enacted before in the infamous Craft decision. However, bring all 28 U.S.C. Title 28 judgments to our attention since some Assistant U.S. Attorneys seem to disagree.

Further, it is noted that as of this writing, there is pending an amendment to 26 U.S.C § 6323. See 2007 Cong. U.S. 2394, 110th Congress, 1st. Sess. (11‐16‐07). This would amend 26 U.S.C § 6323 (f)(1) to allow a tax lien to be filed in an internet based national federal registry under proposed new 26 U.S.C. § 6323 (k) instead of locally. Stay tuned.

2. Federal tax liens.

In our newsletter entitled, Husband and Wife Transactions: Title, Other Interests and Liens, at IV. B, we discussed in great detail the decision of U.S. v. Craft, 535 U.S. 274 (2002), and the I.R.S.’s Notice 2003‐60, 2003‐39 I.R.B. 643 (9/29/03), entitled “Collection Issues Related to Entireties Property.”

A summary of the lien attachment principles is as follows:

a. Federal tax lien docketed before 4‐18‐02 (Craft was decided on 4‐17‐02).
Example:
1. H&W take title as tenants by the entireties.
2. FTL docketed against H.
3. H & W convey for value to X.
4. Craft is decided.

IRS position: IRS will not assert its lien on X’s title. If X conveys for value to Y after Craft or if X mortgages to Y after Craft, such transferees are protected.

b. Federal tax lien docketed on or after 4‐18‐02.
Example:
1. H&W take title as tenants by the entireties.
2. FTL docketed against H.
3. Craft is decided.
4. H & W convey for value to X.

IRS position: IRS will assert its lien against X’s title (as held by X or by X’s successors, etc.).

It is noted that Craft has decided on the basis of 26 U.S.C § 6321, which states that the lien:
… shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.

26 U.S.C. § 6323 (a) requires the lien to be filed. 26 U.S.C § 6323(f)(1)(A) requires the lien to be filed with the clerk of superior court where the real property is located, due to G.S. 44‐68.12. 26 U.S.C. §6323 (f)(4)(A) requires indexing in accord with state law. See G.S. 44‐68.14(a).

It should be remembered that the period for a federal tax lien’s effectiveness is effectively 10 years and 30 days from the date of the assessment referenced in the lien because of refilling periods. 26 U.S.C. § 6502(a); 26 U.S.C. § 6323(g)(3). The lien can be refilled before that time expires. 26 U.S.C. § 6323(g)(3).

3. Notices of lien for fines, etc., pursuant to anti‐terrorism, etc., act and for criminal liabilities (18 U.S.C.A. § 3613).

These are treated like federal tax liens in 2. above. This is because of 18 U.S.C. §3613 generally and 18 U.S.C. §3613(c) (the lien “is a lien…on all property and rights to property” of the person fined). The italicized language in 18 U.S.C. §3613(c) is lifted directly from 26 U.S.C. § 6321, pertaining to attachment of federal tax liens. 26 U.S.C. § 6321 was construed in the Craft case noted in 2. above. This is our position and the U.S.’s position.

The lien must be filed, docketed and indexed in accord with state law. 18 U.S.C. §3613(d). That means docketing and indexing in accord with 2. above.

The lien is good for 20 years from entry or 20 years from release from imprisonment of the person fined, or upon the death of the person fined. 18 U.S.C. § 3613(b). Bankruptcy discharge has no effect. 18 U.S.C. § 3613(e).

The case of U.S. v. Godwin, 446 F.Supp.2d 425 (E.D.N.C. 2006), should be noted. On 4‐10‐01, W transferred to H real property held by H and W as tenants by the entirety. While the facts in the opinion are unclear, apparently at some point, apparently prior to the transfer, W still owed $100,465.71 pursuant to W’s “criminal judgment debt” reduced to an 18 U.S.C. §3613(c) judgment and restitution order against W. The government filed a fraudulent conveyance action against H pursuant to 28 U.S.C. § 3301, et.seq. (including 28 U.S.C. §3306).

The court held that the criminal restitution judgment against W attached to the entirety property under 18 U.S.C. §3613(c) and under the Craft logic, since the rule under 11 U.S.C. §3613(c) is the equivalent of the federal tax lien act and the fraudulent transfer action against H was appropriate.

4. Money judgments in favor of the U.S. under Title 28 (28 U.S.C. §3201, et al).

This is treated as a state law money judgment and not as a federal tax lien, unlike in 2. and 3. above. So, a judgment lien against one spouse is not a lien on tenancy by the entireties property if the owners are still married. The reason is 28 U.S.C. §3201 which is phrased differently than 18 U.S.C. §3613(c) and 26 U.S.C. §6321. A judgment under 28 U.S.C. §3201 “shall create a lien on all real proper of a judgment debtor,” says 28 U.S.C. §3201(a) if filed “in the manner in which a notice of a tax lien would be filed” under 26 U.S.C.A §6323 (f). The reference to 26 U.S.C. §6323(f) is only to place of filing and indexing, not lien attachment. Note that 28 U.S.C. §3201 does not contain 26 U.S.C. §6321’s reference to “all property and rights to property” (see 2. above) which also appears in 18 U.S.C. §3613(c) (see 3. above), the words “and rights to property” being critical in the Craft case (see 2. above) as cited in Godwin (see 3. above). Also, see 18 U.S.C. 3613(a).

See, also, 28 U.S.C. §3010(a) which provides that a judgment lien against a debtor is a lien to be enforced “only to the extent allowed by the law of the state where the property is located.” That would be, incidentally, North Carolina law. Craft, discussed in 2. above and dealing with federal tax liens under 26 U.S.C. §6321 and 26 U.S.C. §6323 did not deal with federal judgments under Title 28 discussed in this 4. of this article.

Also, see 28 U.S.C. § 3014(a)(2)(B) which allows an individual debtor to exempt any interest in property in which the debtor had an interest as a tenancy by the entirety or joint tenant. Also, see 28 U.S.C. §3203(a).

Godwin, discussed in 3. above, did not deal with such a judgment.

Important: One Assistant U.S. Attorney disagreed with our analysis and felt that judgments discussed in 4. are treated like federal tax liens in 2. and liens in 3. No authority was cited and she seemed puzzled at our distinctions. We believe that that office has not carefully reviewed the wording of Title 28.

However, to avoid claims and unnecessary litigation, report all such judgments against one spouse and let us resolve the matter for you with the U.S. Attorney.

However, if a judgment is docketed, for example, against H only, and before that H conveyed his title to H and W, a possible fraudulent conveyance has occurred. This should be considered by the title underwriter. Fraudulent conveyances are discussed in 3. above. Also, see G.S. 39‐23.1, et seq., which can also be used by the government.

The judgment needs to docketed where a federal tax lien is docketed. 28 U.S.C. §3201(a). See 2. above.

The priority of a judgment lien “shall have priority over any other lien or encumbrance which is perfected later in time.” 28 U.S.C. §3201(b).

As to the duration of lien, 28 U.S.C. §3201(c) provides:

(1) Except as provided in paragraph (2), a lien created under subsection (a) is effective, unless satisfied, for a period of 20 years.

(2) Such lien may be renewed for one additional period of 20 years upon filing a notice of renewal in the same manner as the judgment is filed and shall relate back to the date the judgment is filed if ‐‐‐
(A) the notice of renewal is filed before the expiration of the 20 year period to prevent the expiration of the lien; and
(B) the court approves the renewal of such lien under this paragraph.
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Old 11-10-2009, 08:43 PM
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