An interesting case at the confluence of identity theft, student loans, and wrongful collection is set for oral argument in the D.C. Circuit on November 21, 2017. As with many cases we write about on PT, thanks goes out to Carl Smith for finding this case and bringing it to our attention. The case is Reginald L. Ivy v. Commissioner. Although Mr. Ivy is pro se, the court has appointed Travis Crum and Brian Netter of Mayer Brown LLP as Amicus Curiae to write in support of his position.
Mr. Ivy owed student loans and the Department of Education certified those loans to the Treasury Department for offset because he was in default. Someone stole Mr. Ivy’s identify and filed a false return claiming a refund. The IRS allowed an overpayment of $1,822, and the money was sent to DOE to pay off the student loan. I can only imagine the chagrin of the identity thief for being good enough to prepare a return that got through the IRS filters only to find out that the selected victim had an outstanding federal liability subject to the federal offset procedures.
In August of 2013, the student loan was fully satisfied thanks, in part, to the offset of the refund on the fraudulently filed return by the ID thief. In September of 2013 Mr. Ivy learned of the false 2011 return and prepared and submitted his own return for that year. On his return, he showed an overpayment of $634.
The IRS became aware that the first return filed under Mr. Ivy’s name for 2011 was a false return and it reversed the credit which had the effect of putting Mr. Ivy into default on his student loan. When the IRS reversed the credit, it caused the “real” overpayment by Mr. Ivy to go to, or stay with, DOE. Mr. Ivy complained that he should receive his $634 refund because his student loan was satisfied and argued that in keeping his $634, the IRS acted impermissibly. He brought suit in federal district court under IRC 7433, seeking the return of his money plus damages, arguing that the failure of the IRS to send him the refund caused him to miss a payment on another debt and triggered higher interest charges on the other debt.
The IRS argued that IRC 6402(g) prohibited suit against the IRS and that Mr. Ivy would have to sue DOE on the debt. In effect, the IRS argued that it gave him his refund and that his recourse was to go against the agency that prevented him from receiving the refund, and that agency was not the IRS. This is the standard argument that the IRS makes when someone has their refund offset because of the debt of owed to another agency of the state or federal government participating in the Treasury offset program and is a logical argument because of the language of the statute. In effect, his real beef was not with the IRS which had allowed not one but two refunds on his account, but rather was with the agency seeking to collect his student loan debt.
The district court agreed with the IRS and dismissed the suit. Mr. Ivy appealed, and the Circuit Court brought in the pro bono lawyers. The briefs have been filed. Attached are the Opening Brief of Amicus Curiae and the reply brief of Amicus Curiae. The briefs were filed this summer. During the briefing, the IRS sent Mr. Ivy a check for $634 plus interest. I cannot explain why the IRS did that. The sending of the refund means that only the damages portion of the suit remains.
At issue is the interplay between IRC 6402(g) and 7433(a). Section 6402(g) provides:
No court of the United States shall have jurisdiction to hear any action, whether legal or equitable, brought to restrain or review a reduction authorized by subsection (c), (d), (e) or (f). No such reduction shall be subject to review by the Secretary in an administrative proceeding. No action brought against the United States to recover the amount of any such reduction shall be considered to be a suit for refund of tax. This subsection does not preclude any legal equitable, or administrative action against the Federal agency or State to which the amount of such reduction was paid or any such action against the Commissioner of Social Security which is otherwise available with respect to recoveries of overpayments of benefits under section 204 of the Social Security Act.
Section 7433(a) provides
If, in connection with an collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence, disregards any provision of this title, or any regulation promulgated under this title, such taxpayer may bring a civil action for damages against the United States in a district court of the United States. Except as provided in section 7432, such civil action shall be the exclusive remedy for recovering damages resulting from such actions.
The issue is whether there is any room left between to two statutes for Mr. Ivy to squeeze in a claim. Does the very broad bar of 6402(g) stop all action as the district court found (and as I am inclined to believe), or do the actions of the IRS with respect to the refund somehow constitute collection action on which the IRS has recklessly, intentionally, or negligently disregarded the code or regulations? So, Mr. Ivy must not only get past the bar of the first statute, he must find that sending the refund to DOE is collection activity. The amicus brief makes that argument after examining, through other cases, what is collection activity. It gets there in part because the refund is sent after an assessment, and an assessment is a predicate to collection action. But assessment, as they point out, is also a predicate to creation of an overpayment. I cannot make the leap that granting someone a refund and then sending it to another agency is collection action taken by the IRS in any sense, other than the sense covered by the jurisdictional bar of 6402(g).
The situation makes for an interesting discussion, but I cannot get past the fact that it looks like the IRS did exactly what the jurisdictional bar covers and nothing more. I would love to know why the IRS sent Mr. Ivy his refund in the end. I am curious to know if DOE is still trying to collect from him after the IRS reversed the credits. Of course, I would also like to know more about the ID thief and whether he or she, after starting this whole mess, has been caught.