A jury recently convicted Jeffrey L. Viken, a Roman Catholic priest, of 50 counts of wire fraud, nine counts of money laundering, one count of interstate transportation of stolen money and five counts of making and subscribing a false tax return. For the tax return years 2013 through 2017, the defendant had unreported income totaling $235,818 and income tax due totaling $46,008. As a result, the district court ordered tax-based restitution to the IRS of $46,008 under the Mandatory Victims Restitution Act. United States v. Garbacz.
The recent case of United States v. Garbacz reinforces the fact that the federal government often prosecutes tax violations, even violations involving relatively small amount of unpaid tax such as that involved in the case—some $46,008 over the course of five years. The case also illustrates the restitution provisions at when federal convictions involve amounts owed to the IRS.
The Mandatory Victims Restitution Act (“MVRA”) provides:
((a))
((1)) Notwithstanding any other provision of law, when sentencing a defendant convicted of an offense described in .subsection (c), the court shall order, in addition to … any other penalty authorized by law, that the defendant make restitution to the victim of the offense ….
((2)) For the purposes of this section, the term “victim” means a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme … or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme … or pattern….
((c))
((1)) This section shall apply in all sentencing proceedings for convictions of … any offense …
((B)) in which an identifiable victim or victims has suffered a … pecuniary loss.
18 U.S.C. § 3663A(a)(1)-(3) & (c)(1)(B).
The MVRA is intended “to ensure that victims of a crime receive full restitution.” Dolan v. United States, 560 U.S. 605, 612 (2010); United States v. Statman, 604 F.3d 529, 538 (8th Cir. 2010). “The MVRA requires restitution ‘in the full amount of each victim’s losses … without consideration of the economic circumstances of the defendant.’” United States v. Senty-Haugen, 449 F.3d 862, 865 [97 AFTR 2d 2006-2858] (8th Cir. 2006) (citing 18 U.S.C. § 3664(f)(1)(A)). The government bears the burden to prove the victims’ losses by a preponderance of the evidence. 18 U.S.C. § 3664(e).
“[T]he IRS is an eligible victim under the MVRA.” Senty-Haugen, 449 F.3d at 865. “[I]n any case in which the United States is a victim, the court shall ensure that all other victims receive full restitution before the United States receives any restitution.” Id. (citing 18 U.S.C. § 3664(i)).
Under the MVRA, the IRS was entitled to a restitution order of the full amount of taxes owed under a tax-related criminal charge. The case again serves as a reminder that the IRS and Department of Justice often prosecute tax crimes involving other related violations. It also demonstrates the government’s use of the MVRA to obtain tax-related restitution in favor of the IRS.
White Collar Defense Attorneys
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