Whether the Agency may recover an overpayment in the amount of $22,574.00 from Vincent
V. H~, Jr. (Mr. H~), the personal representative of the estate of Mary G. H~ (Mrs.
Mr. H~ received notice of the overpayment prior to final distribution of the estate
assets on April 21, 2004. Therefore, he is in violation of the Federal Priority Statute,
31 U.S.C. § 3713(b), and could be found personally responsible for repaying the overpayment.
Referral of this matter to the Department of Justice (DOJ) for enforced collection,
however, is premature because Mr. H~ did not receive proper notice of the overpayment.
Specifically, the initial notice does not comport with Agency policy regarding overpayment
notices, which includes informing the legal representative of the right to reconsideration
and waiver of recovery, as well providing detailed information explaining the overpayment
calculation. Because the December 14, 2004 notice (see Tab 3) is the only notice Mr. H~ has received regarding the overpayment, and this
notice is deficient, we recommend the Great Lakes Program Service Center (GLPSC) reissue
a notice that includes the requisite information noted in the Program Operations Manual
According to information you have provided, at the time of her death, the decendent,
Mrs. H~, owed $22,574.00 to the Agency for an overpayment of benefits due to excess
income. In a notice date December 14, 2003 (see Tab 3), the GLPSC informed Claire D~ (Ms. D~), the attorney for the estate, that
"[b]ased on [Mrs. H~] receiving a government pension, her Social Security benefits
should have been reduced. Therefore[,] an overpayment of $22,574.00 resulted" (id.)_2 The notice also informed Ms. D~ that according to Agency records, she was appointed
as executor of the estate, and that pursuant to 31 U.S.C. § 3713, she would become
personally liable for the overpayment if the estate's debt to the United States was
not satisfied first and there were insufficient funds to pay all debts. The notice
did not include, for example, "the monthly amount, if any, which should have been
paid, . . . the months for which the different amount should have been paid, and the
amount which was paid for those months." POMS § GN 02201.009B.1. (What Notice Includes). Nor did the notice mention the right to reconsideration
of the overpayment determination or the right to request waiver of recovery. See id.
In a letter dated December 22, 2003 (see Tab 2), Ms. D~ informed the GLPSC that Mrs. H~ died on June 27, 2002, and that Mr.
H~ was appointed personal representative of the estate on July 18, 2002. Ms. D~ also
noted that following Mr. H~'s appointment as personal representative, a "Notice to
Creditors" was published three times in a local newspaper, beginning August 1, 2002,
and ending August 15, 2002, and the "[the Agency] did not file a claim within this
time period . . ." (id.) Ms. D~ noted further that "the personal representative of the Estate of Mary G.
H~ is denying the request by the Social Security Administration for repayment of $22,574.00,"
and that the estate would be closed 60 days from the date of her letter. Thus, despite
the defective notice, Mr. H~, through the attorney for the estate, arguably requested
reconsideration in December 2003, and the Agency has not responded to that request.
Statements from USBank, which are attached to the "Final Accounting-For Period From:
July 24, 2002 To April 11, 2003" (see Tab 4) reflect that on December 31, 2002, the "customer," presumably, Mr. H~, withdrew
$145,000 from a USBank account in the name of "The Estate of Mary H~." On March 26,
2004, approximately three months after he received notice of the overpayment through
the attorney for the estate, Mr. H~, in his capacity as Trustee of the H~ Family Trust
(the Trust), filed a "Receipt and Release" (see Tab 5), attesting that he had received cash in the amount of $146,362.98, and securities
valued at $3,205.10 and $1,134.66 from himself as the personal representative of the
estate. The "Receipt and Release" does not reflect the exact date Mr. H~ "contingently"
distributed these assets to the Trust; however, as explained further below, the "final"
distribution date, which in this case is April 21, 2004, is the relevant date for
purpose of determining his liability for the overpayment under the Federal Priority
During a telephone conversation with Ms. D~ on April 19, 2002, she informed our office
that Mr. H~ had distributed the assets to the Trust before he received notice of the
overpayment from the Agency in December 2003. Ms. D~ also continued to assert that
the Agency had missed the deadline to file a claim and had failed to prove the estate's
liability for the overpayment. On April 21, 2004, Ms. D~ forwarded to our office a
copy of the "Decree of Final Discharge" (see Tab 6) issued by the probate court, purportedly releasing and discharging Mr. H~
"from any and all liability arising in connection with the performance of [his] fiduciary's
duties. . . ."
The Federal Priority Statute provides that, "A representative of a person or an estate
. . . paying any part of a debt of the person or estate before paying a claim of the
Government is liable to the extent of the payment for unpaid claims of the Government."
31 U.S.C. § 3713(b). "The statute is to be 'liberally construed so as to effect the
public purpose of securing debts owed to the United States.'" United States v. Idaho Falls Assocs. Ltd. P'ship, 81 F. Supp.2d 1033, 3713 (D. Idaho 1999) (quoting United States v. Whitney, 654 F.2d 607, 609 (9th Cir. 1981) (citing Bramwell v. United States Fid. & Guar. Co., 269 U.S. 483 (1926)); see also United States v. Moore, 423 U.S. 77, 81-86 (1975).
"'The basic elements of § 3713(b) and of its predecessor statutes is that (1) a fiduciary
(2) make a distribution which (3) leaves the estate with insufficient funds to pay
(4) a debt owing the United States where (5) the fiduciary had knowledge or notice
of the debt due to the United States at a time when the estate had sufficient assets
with which to satisfy the debt owing to the United States.'" United States v. Bartlett, 186 F. Supp.2d 875 (C.D. Ill. 2002) (citations omitted).
Mr. H~, as the personal representative for the estate, is a fiduciary. He distributed
the assets of the estate to the H~ Family Trust, leaving the estate with insufficient
funds to pay the overpayment. While Mr. H~ contends he had already distributed the
estate assets to the Trust before he received notice of the overpayment, "[t]he distribution
by [Mr. H~] prior to the closure of the estate was not a final distribution pursuant
to a final decree, but a contingent distribution." Ferri v. Bowen, No. C-85-505-SPM, 1986 WL 373, at *2 (E.D. Wash. July 16, 1986) (noting that "[i]t
is 'distribution' which is controlling"). The date Mr. H~ made a final distribution
of the estate assets is the determining factor in this case with respect to his personal
liability under the Federal Recovery Statute. See id. Therefore, even if Mr. H~ did distribute the assets of the estate into the Trust
before he received notice in December 2003, he received notice of the overpayment
prior to the closure of the estate in April 2004 and is in violation of the Federal
Priority Statute. See id.
Mr. H~, through the attorney for the estate, also continues to dispute the Agency's
right to recover the overpayment from the estate assets on the basis that the Agency
missed the deadline to file a claim. However, "[a]s it undisputed that state probate
nonclaim statutes do not bar claims of the federal government, the status of the probate
proceedings cannot be deemed controlling." Id. (citing United States v. Summerlin, 310 U.S. 414 (1940)).
In construing the predecessor statute to 31 U.S.C. § 3713(b),[ ] the courts have uniformly
held a personal representative liable who, having actual notice of the debt due the
Government, distributed the estate pursuant to a decree of distribution without first
paying the debt due the Government even though the Government had not submitted a
claim in the probate proceedings.
United States v. Boots, 675 F. Supp. 550, 551 (E.D. Mo. 1987) (citations omitted). Mr. H~ has "the burden
of proving the statute does not apply" to him. Ferri, 1986 WL 373, *2 (citing United States v. Cole, 733 F.2d 651, 654 (9th Cir. 1984)).
Mr. H~ also continues to dispute the validity of the overpayment, and therefore, may
contest whether the Agency actually had a "claim," i.e., whether the estate was indebted
to the Agency within the meaning of the Federal Priority Statute before the assets
were finally distributed ._3 "The terms of the . . . statute are to be construed liberally
so as not to frustrate its purpose in securing sufficient revenue for the payments
of public debts." United States v. Moriarty, 8 F.3d 329 (6th Cir. 1993) (holding that "although the United States may be precluded
by the applicable statute of limitations from brining an action for money damages,
it continues to have a 'right to payment' against the debtor in this case and thus
may enforce that right in other ways") (citing Bramwell v. United States Fidelity & Guar. Co., 269 U.S. 482, 487 (1926); United States v. State Bank of N.C., 31 U.S. (6 Pet.) 29, 34, 8 L.Ed. 390 (1832)). Furthermore, "[i]n interpreting the
term 'claim' under the federal priority statute, we look for guidance to the Bankruptcy
Code." Moriarty, 8 F.3d at 334 (citing United States v. Moore, 423 U.S. 77, 84 (1975)). "In the Bankruptcy Code, 'claim' is defined broadly as
a 'right to payment, whether or not such right is reduced to judgment, . . . contingent,
. . . [or] disputed. . . ." Moriarity, 8 F.3d at 334 (emphasis in original) (citing 11 U.S. C. § 101(5)). Here, we believe
the estate's debt arose on or about September 27, 2002, the date the Agency discovered
and manually posted Mrs. H~'s overpayment in its computer system. "Once a determination
of overpayment is made, the overpaid amount is a debt owed to the United States Government."
POMS GN 02201.001._4 See Memorandum, Florida - Recovery of Overpayment Incurred Subsequent to Chapter 7 Bankruptcy, CC IV (G~ & A~) to Assistant Regional Commissioner, Program Operations and Systems
(May 5, 1993) (noting "[t]he debt to SSA is not created until [the beneficiary] reports
the amount of her 1990 earnings or until as here, an investigation reveals that there
were excess earnings for 1990).
Thus, we believe that Mr. H~ is in violation of the Federal Recovery Statute and,
therefore, liable in his personal capacity as the representative of the estate for
the $22,574 overpayment. However, we caution that DOJ may be reluctant to initiate
a recovery action_5 against Mr. H~ in his capacity as personal representative if the
Agency cannot demonstrate he received proper notice of the overpayment.
The December 2003 notice that Mr. H~ received through the attorney for the estate
(see Tab 3) does not comport with Agency policy. POMS GS 02201.009 (Notification of Overpayment) requires that written notice be sent and requires that
the notice include the "[o]verpayment amount and how and when it occurred (i.e., the
overpaid amount, the monthly amount, if any, which should have been paid, why the
different amount was due, the months for which the different amount should have been
paid, and the amount which was paid for those months)." The December 2003 notice simply
states the following: "Based on [Mary G. H~] receiving a government pension, her Social
Security benefits should have been reduced. Therefore[,] an overpayment of $22,574.00
resulted" (see Tab 3). Additionally, the notice must inform the claimant of the "[r]ight to reconsideration
of the overpayment determination," as well as the "[r]ight to request waiver of recovery
and the automatic scheduling of a personal conference if a request for waiver cannot
be approved." Id. § GN
02201.009B.1. The December 2003 notice does not mention reconsideration or waiver.
POMS GN 02215.055, which specifically pertains to estates administered by a legal representative, states
that "[a] legal representative must be notified of how and when an overpayment was
made and the estate's liability for repayment." Moreover, these procedures also require
the Agency to inform the legal representative of "[t]he right to reconsideration and
waiver" and "[t]reat any protest/appeal of the estate's liability for repayment .
. . as a request for reconsideration of that issue." Id. GN 02215.055 B.1.a.& e. Again, the notice Mr. H~ received through the attorney for the estate in December
2003 does not meet these requirements. "If notification is deficient (e.g., notice
is not sent, . . . content is inadequate), a new notice must be sent." Id. § GN 02201.009B.8._6 Furthermore, as noted above, the Agency has not responded to Mr. H~'s request
Thus, while the December 2003 notice was sufficient to alert Mr. H~ that the Agency
has a claim against the estate,_7 this notice is insufficient for the purpose of establishing
the estate's liability for the overpayment because it does not contain the requisite
For the reasons discussed above, we believe Mr. H~ could be found liable in his personal
capacity under the Federal Priority Statute for the overpayment because he received
sufficient notice of the Agency's claim prior to final distribution of the estate
assets._8 However, we do not believe DOJ will institute recovery action if the Agency
cannot prove the fact and amount of the debt, which will require to Agency to show
that that it followed its internal policies with regards to notice of the overpayment._9
Therefore, we recommend the Agency reissue a notice to Mr. H~ in his capacity as personal
representative that contains the requisite information noted in the POMS.
Deana R. E~-L~
Regional Chief Counsel, Region VIII
Yvette G. K~
Assistant Regional Counsel
_1 On April 13, 2004, you submitted a "Notice of Hearing on Petition for Final Settlement
and Distribution (Non-Appearance)" (see Tab 1), scheduled for April 20, 2004, to the Office of the General Counsel, Region
V, in Chicago, Illinois, which referred the matter to our office because a Colorado
State Court has jurisdiction over the probate proceedings. After consultation with
the Colorado U.S. Attorney's Office, we did not send an attorney to the non-appearance
hearing. We determined that since the assets had been "contingently" distributed,
it was unlikely the court would delay the final settlement and distribution of the
estate, and, if warranted, the Agency could refer this matter to the Department of
Justice (DOJ) for a civil suit to recover the overpayment from Mr. H~ at the conclusion
of the administrative proceedings.
_2 The GLPSC sent a similar notice to the probate court.
_3 Sections (a) and (b) of 31 U.S.C. § 3713 provide, in part, as follows:
(a)(1) A claim of the United States Government shall be paid first when-(b) the estate
of a deceased debtor, in the custody of the executor or administrator, is not enough
to pay all debts of the debtor.
_4 In this context, we believe "determination" is synonymous with "discovered," as
opposed to the term of art, "initial determination," which requires written notice.
See POMS GN 02201.009 ("When the debt is discovered, the fact, amount and liability for repayment must
be communicated as soon as possible. If the overpayment is discovered because of an
oral communication (telephone call or interview), the liability for repayment is communicated
during the first oral contact. Written notice is always sent.")
_5 POMS § GN 02215.170.A (Handling of Overpayment Claims for Referral to DOJ) notes that "[t]he ARC, POS
is responsible for either reporting or not reporting an outstanding debt to the U.S.
Department of Justice (DOJ) Central Intake Facility for possible civil suit." Referrals
must be submitted to the Department of Justice on a "Certificate of Indebtedness"
and a Claims Collection Litigation Report pursuant to the instructions set forth in
the POMS. See id. § GN 02215.170B.4.
_6 "Whenever there is a delay of more than 1 year between the time overpayment occurs
and the time a determination is made (i.e., notice sent), a complete explanation and
evidence to support the delay must be provided by the PC when the debt claim is referred
to DOJ." POMS§ GN 02215.150.B.2.
_7 "The knowledge requirement of ... 31 U.S.C. § 3713 may be satisfied by either actual
knowledge of the liability or notice of such facts as would put a reasonably prudent
person on inquiry as to the existence of the unpaid claim of the United States. To
be chargeable with knowledge of such a debt, the executor must be in possession of
such facts as to put him on inquiry." Bartlett, 186 F. Supp. 2d at 886-87.
_8 This opinion does not address recovery actions that could be taken against the
beneficiaries (distributes) of the trust. "When an overpaid person (e.g., beneficiary
or representative payee) dies, the person's estate becomes liable. If the estate is
closed, the distributees or legatees are liable to the extent of the proceeds of the
estate (or property attributable to such proceeds) which are in his/her possession
when notified of the overpayment." POMS 02205.001.B.2.
_9 To ensure that civil suit is not barred, the complaint must be filed within:
a. Six years after the right of action accrues (i.e., within 6 years after the time
an overpayment determination has been made); or
b. One year after a final decision has been rendered in an administrative proceeding
(i.e., reconsideration, hearing, and/or review by the Appeals Council), whichever
POMS § GN 02215.159B.2.