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debt must send a letter to the Sec- begin after the hearing officer has proretary stating his or her intention. The vided the employee with a hearing, and letter must be received by the Sec the final written decision is in favor of retary within 20 calendar days of the the Secretary. date of the Notice of Intent.

(c) If an employee retires or resigns (b) Secretary's response. In response to before collection of the amount of the timely notice submitted by the debtor indebtedness is completed, the remainas described in paragraph (a) of this ing indebtedness will be collected acsection, the Secretary will notify the cording to the procedures for adminisemployee of the location and time trative offset (see $$17.100 through when the employee may inspect and 17.118). copy Department records related to the debt.

8 17.135 Procedures for salary offset:

types of collection. 8 17.133 Written agreement to repay A debt will be collected in a lumpdebt as alternative to salary offset.

sum or in installments. Collection will (a) Notification by employee. The em be by lump-sum collection unless the ployee may propose, in response to a employee is financially unable to pay Notice of Intent, a written agreement in one lump-sum, or if the amount of to repay the debt as an alternative to the debt exceeds 15 percent of dispos- | salary offset. Any employee who wishes able pay. In these cases, deduction will to do this must submit a proposed writ be by installments. ten agreement to repay the debt which is received by the Secretary within 20 17.136 Procedures for salary offset: calendar days of the date of the Notice

methods of collection. of Intent.

(a) General. A debt will be collected (b) Secretary's response. In response to by deductions at officially-established timely notice by the debtor as de pay intervals from an employee's curscribed in paragraph (a) of this section, rent pay account, unless the employee the Secretary will notify the employee and the Secretary agree to alternative whether the employee's proposed writ arrangements for repayment. The alten agreement for repayment is accept- ternative arrangement must be in writable. It is within the Secretary's dis ing, signed by both the employee and cretion to accept a repayment agree the Secretary. ment instead of proceeding by offset. In (b) installment deductions. Installment making this determination, the Sec- deductions will be made over a period retary will balance the Department's not greater than the anticipated period interest in collecting the debt against of employment. The size and frequency hardship to the employee. If the debt is of installment deductions will bear a delinquent and the employee has not reasonable relation to the size of the disputed its existence or amount, the debt and the employee's ability to pay. Secretary will accept a repayment However, the amount deducted for any agreement instead of offset only if the period will not exceed 15 percent of the employee is able to establish that off disposable pay from which the deducset would result in undue financial tion is made, unless the employee has hardship or would be against equity agreed in writing to the deduction of a and good conscience.

greater amount. If possible, the install

ment payment will be sufficient in size 8 17.134 Procedures for salary offset: and frequency to liquidate the debt in when deductions may begin.

three years. Installment payments of (a) Deductions to liquidate an em less than $25 per pay period or $50 a ployee's debt will be by the method and month will be accepted only in the in the amount stated in the Secretary's most unusual circumstances. Notice of Intent to collect from the (c) Sources of deductions. The Departemployee's current pay.

ment will make deductions only from (b) If the employee filed a petition basic pay, special pay, incentive pay, for hearing with the Secretary before retired pay, retainer pay, or in the case the expiration of the period provided of an employee not entitled to basic for in $17.129, then deductions will pay, other authorized pay.

8 17.137 Procedures for salary offset:

imposition of interest. Interest will be charged in accordance with $17.72.

$17.138 Non-waiver of rights.

So long as there are no statutory or contractual provisions to the contrary, no employee involuntary payment (of all or a portion of debt) collected under these regulations will be interpreted as a waiver of any rights that the employee may have under 5 U.S.C. 5514.

funds due taxpayers who have a pastdue debt obligation to the Department. These procedures are authorized by the Deficit Reduction Act of 1984 (31 U.S.C. 3720A) and apply to the collection of debts as authorized by common law, by 31 U.S.C. 3716, or under other statutory authority.

(b) The Secretary will use the IRS tax refund offset to collect claims which are certain in amount, past due and legally enforceable, and which are eligible for tax refund offset under regulations issued by the Secretary of the Treasury.

(c) The Secretary will not report debts to the IRS except for the purpose of using the offset procedures described in $$ 17.150 through 17.161. Debts of less than $100.00, exclusive of interest and other charges, will not be reported.

(d) If not legally enforceable because of lapse of statute of limitations but otherwise valid, the debt will be reported to the IRS as a forgiven debt on Form 1099G. (Form 1099G is an information return which Government agencies file with the IRS to report forgiven debt, and the forgiven amo nt is considered income to the taxpayer.) (See $17.159.)

$17.139 Refunds.

The Department will refund promptly to the appropriate individual amounts offset under these regulations when:

(a) A debt is waived or otherwise found not owing the United States (unless expressly prohibited by statute or regulation); or

(b) The Department is directed by an administrative or judicial order to refund amounts deducted from the employee's current pay. $17.140 Miscellaneous provisions: cor

respondence with the Department The employee shall file an original and two copies of a request for a hearing with the Clerk, Office of the Chief Administrative Law Judge, Room 2158, Department of HUD, Washington, DC 20410, on official work days between the hours of 8:45 a.m. and 5:15 p.m. All other correspondence shall be submitted to the Department Claims Officer, Department of Housing and Urban Development, Washington, DC 20410. Documents may be filed by personal delivery or mail. All documents shall be printed, typewritten, otherwise processed in clear, legible form and on letter-size paper. IRS TAX REFUND OFFSET PROVISIONS SOURCE: Sections 17.150 through 17.161 apDear at 51 FR 39750, Oct. 31, 1986, unless otherwise noted.

or

8 17.151 Notice requirements before

offset. A request for deduction from an IRS tax refund will be made only after the Secretary makes a determination that an amount is owed and past due and provides the debtor with 65 calendar days written notice. This Notice of Intent to Collect by IRS Tax Refund Offset (Notice of Intent) will state:

(a) The nature and amount of the debt;

(b) That unless the debt is repaid within 65 days from the date of the Notice, the Secretary intends to collect the debt by requesting the IRS to reduce any amounts payable to the debtor as refunds of Federal taxes paid by amount equal to the amount of the debt and all accumulated interest and other charges;

(c) That the debtor has a right to obtain review within the Department of the Secretary's initial determination that the debt is past due and legally enforceable (see § 17.152);

$17.150 Scope.

(a) The standards set forth in $$17.150 through 17.161 are the Department's procedures for requesting the Internal Revenue Service (IRS) to offset tax re

(d) That the debtor has a right to inspect and copy departmental records related to the debt as determined by the Secretary and will be informed as to where and when the inspection and copying can be done after the Department receives notice from the debtor that inspection and copying are requested. (See $17.155.)

607(b)(1)). The Administrative Judge shall make a determination based upon a review of the written record, except that the Administrative Judge may order an oral hearing if he or she finds that:

(1) An applicable statute authorizes or requires the Secretary to consider waiver of the indebtedness and the waiver determination turns on credibility or veracity; or

(2) The question of indebtedness cannot be resolved by review of the documentary evidence.

(d) Previous decision by Board of Contract Appeals. The debtor is not entitled to a review of the Department's intent to offset it, in a previous year the HUD Board of Contract Appeals has issued a decision on the merits that the debt is past-due and legally enforceable, except when the debt has become legally unenforceable since the issuance of that decision, or the debtor can submit newly discovered material evidence that the debt is presently not legally enforceable.

8 17.152 Review within the Depart

ment of a determination that an amount is past-due and legally en

forceable. (a) Notification by debtor. A debtor who receives a Notice of Intent has the right to present evidence that all or part of the debt is not past-due or not legally enforceable. The debtor should send a copy of the Notice of Intent with a letter notifying the HUD Board of Contract Appeals within 25 calendar days from the date of the Department's Notice of Intent that he or she intends to present evidence. (See $ 17.161(a) for address of the Board.) Failure to give this advance notice will not jeopardize the debtor's right to present evidence within the 65 days provided for in paragraph (b) of this section. If the HUD Board of Contract Appeals has additional procedures governing the review process, a copy of the procedures will be mailed to the debtor after his request for review is received and docketed by the Board.

(b) Submission of evidence. The debtor may submit evidence showing that all or part of the debt is not past-due or not legally enforceable along with the notification requested by paragraph (a) of this section, but in any event the evidence must be submitted to the Board of Contract Appeals within 65 calendar days from the date of the Department's Notice of Intent. Failure to submit evidence within 65 calendar days will result in a dismissal of the request for review by the HUD Board of Contract Appeals.

(c) Review of the record. After a timely submission of evidence by the debtor, an Administrative Judge from the HUD Board of Contract Appeals will review the evidence submitted by the Department which shows that all or part of the debt is past-due and legally enforceable. (Administrative Judges are appointed in accordance with 41 U.S.C.

8 17.153 Determination of the Adminis

trative Judge. (a) Following the hearing or the review of the record, the Administrative Judge shall issue a written decision which includes the supporting rationale for the decision. The decision of the Administrative Judge concerning whether a debt or part of a debt is pastdue and legally enforceable is the final agency decision with respect to the past-due status and enforceability of the debt.

(b) Copies of the Administrative Judge's decision will be distributed to the General Counsel of the Department, the Department's Office of Finance and Accounting, the debtor, and the debtor's attorney or other representative, if any.

(c) If the Administrative Judge's decision affirms that all or part of the debt is past due and legally enforceable, the Secretary will notify the IRS after the Administrative Judge's determination has been issued under paragraph (a) of this section and a copy of the determination is received by the Department's Office of Finance and ACcounting. No referral will be made to ing a right described in $17.152, the Secretary will notify the IRS of the debt no earlier than 65 calendar days from the date of the Department's Notice of Intent, and will request that the amount of the debt be offset against any amount payable by the IRS as refund of Federal taxes paid. Normally, recovered funds will be applied first to costs of collection, then to any special charges provided for in HUD regulations or contracts, then to interest and finally, to the principal owed by the debtor.

the IRS if review of the debt by the Administrative Judge reverses the initial decision that the debt is past due and legally enforceable. § 17.154 Postponements, withdrawals

and extensions of time. (a) Postponements and withdrawals. The Secretary may, for good cause, postpone or withdraw referral of the debt to the IRS. (For example, a delay in the mail between the debtor and the Secretary could normally warrant a postponement; a mathematical error or computer malfunction could be the reason for a withdrawal.)

(b) Ertensions of time. At the discretion of the Administrative Judge, time limitations required in these procedures may be extended in appropriate circumstances for good cause shown. $17.155 Review of departmental

records related to the debt. (a) Notification by debtor. A debtor who intends to inspect or copy departmental records related to the debt as determined by the Secretary must send a letter to the Title I Representative stating his or her intention. The letter must be received by the Title I Representative within 25 calendar days from the date of the Department's Notice of Intent.

(b) Department's response. In response to timely notification by the debtor as described in paragraph (a) of this section, the Title I Representative will notify the debtor of the location and time when the debtor may inspect or copy departmental records related to the debt.

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$17.156 Stay of offset.

If the debtor timely notifies the Secretary that he or she is exercising a right described in $17.152(a) and timely submits evidence in accordance with $17.152(b), any notice to the IRS will be stayed until the issuance of a written decision by the Administrative Judge which determines that a debt or part of a debt is past-due and legally enforceable.

8 17.160 Time limitation for notifying

the IRS to request offset of tax re

funds due. (a) The Secretary may not initiate offset of tax refunds due to collect a debt for which authority to collect arises under 31 U.S.C. 3716 more than 10 years after the Secretary's right to collect the debt first accrued, unless facts material to the Secretary's right to collect the debt were not known and could not reasonably have been known by the officials of the Department who were responsible for discovering and collecting such debts.

(b) When the debt first accrued is determined according to existing law regarding the accrual of debts. (See, for example, 28 U.S.C. 2415.)

$17.157 Application of offset funds:

Single debt. If the debtor does not timely notify the Secretary that he or she is exercis

g 17.161 Correspondence with the De

partment. (a) All correspondence from the debtor to the Board concerning the right to review as described in $17.152 shall be addressed to the HUD Board of Contract Appeals, Room 2131, 451 Seventh Street SW., Washington, DC 20410_0500.

(b) The request for review of Departmental records should be addressed to the Title I Representative whose address appears in the Notice of Intent of Offset. All requests for review of departmental records must be marked: Attention: Records Inspection Request.

(c) All other correspondence shall be addressed to the Department Claims Officer, Office of Finance and Accounting, Department of Housing and Urban Development, room 2202, Washington, DC 20410. (51 FR 39750, Oct. 31, 1986, as amended at 59 FR 69647, Nov. 18, 1994)

12.1 Elections to utilize small claims (expe

dited) and accelerated procedure. 12.2 The small claims (expedited) procedure. 12.3 The accelerated procedure. 12.4 Motions for reconsideration in Rule 12

cases. 13. Settling the record. 14. Discovery-depositions. 15. Interrogatories to parties, admission of

facts, and production and inspection of

documents. 16. Filing and service of papers other than subpoenas.

HEARINGS 17. Where and when held. 18. Notice of hearings. 19. Unexcused absence of a party. 20. Hearings: conduct; examination of wit

nesses. 21. Subpoenas. 22. Copies of papers. 23. Posthearing briefs. 24. Transcript of proceedings. 25. Withdrawal of exhibits.

REPRESENTATION 26. Appellant. 27. Government.

PART 20-BOARD OF CONTRACT

APPEALS

DECISIONS

Subpart A-Development of Housing and

Urban Development Board of Contract
Appeals

28. Decisions.

MOTION FOR RECONSIDERATION 29. Motion for reconsideration.

DISMISSALS AND DEFAULTS 30. Dismissal without prejudice. 31. Dismissal or default for failure to pros

ecute or defend.

REMAND 32. Remand from court.

SANCTIONS

33. Sanctions.

Sec. 20.1 Scope of part. 20.2 Establishment of Board. 20.3 Organization and location of the Board. 20.4 Jurisdiction of the Board. 20.5 Board powers. Subpart B-Rules of the Department of

Housing and Urban Development

Board of Contract Appeals 20.10 Rules.

PRELIMINARY PROCEDURES Rule 1. Appeals, how taken. 2. Notice of appeal, contents of. 3. Docketing of appeals. 4. Preparation, content, organization, for

warding, and status of appeal file. 5. Dismissal for lack of jurisdiction. 6. Pleadings 7. Amendments of pleadings or record. 8. Hearing election and motions. 9. Prehearing briefs. 10. Prehearing of presubmission conference. 11. Submission without a hearing. 12. Optional small claims (expedited) and ac

celerated procedures. (These procedures are available solely at the election of the appellant.)

MISCELLANEOUS PROCEDURES 34. Applicability. 35. Time, computation and extensions. 36. Ex parte communications.

AUTHORITY: 41 U.S.C. 601-613; 42 U.S.C. 3535(d).

Subpart A-Department of Hous

ing and Urban Development Board of Contract Appeals

SOURCE: 50 FR 45911, Nov. 5, 1985, unless otherwise noted.

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