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24 CUNY L. Rev. Footnote Forum 1 (2021)

handle is hein.journals/cunyform24 and id is 1 raw text is: CORONAVIRUS AID, RELIEF, AND ECONOMIC
SECURITY FOR WHOM? IRS OVERREACHES IN
DENYING CARES ACT ECONOMIC IMPACT
PAYMENTS TO MIGRANT WORKERS AND
INCARCERATED INDIVIDUALS
Justin Schweget
INTRODUCTION
Individuals who received advance refunds under the Coronavirus
Aid, Relief, and Economic Security (CARES) Act met the eligibility cri-
teria in their 2019 tax filings (or 2018 filings if they had not yet filed 2019
taxes).1 Advance refunds are treated as a refund of an overpayment of
2018 or 2019 taxes.2 Subsequent changes in tax filing status in 2020 do
not retroactively make one ineligible for an advance refund.3 On May 6,
the IRS issued guidance on its Economic Impact Payment Information
Center website instructing incarcerated individuals and certain resident
aliens4 that they should return the economic impact payments (also called
t Justin is a Sarasota, Florida-based attorney with law degrees from Georgetown (J.D.), the
Institut d'dtudes politiques de Paris (international economic law), and the University of Ar-
kansas (agricultural and food law). His academic interests include economic justice, agricul-
tural policy, and government integrity. He extends gratitude to Sarah Bradford and CUNY
Law Review staff editors of this article.
1 I.R.C. § 6428(f)(1) (2020) (stating that eligibility for an advance refund is based on
meeting the eligibility criteria in 2019); id. § 6428(f)(5)(A) (stating that where a taxpayer has
not filed 2019 taxes, 2018 taxes may be used to determine eligibility).
2 Id. § 6428(f)(1).
3 In guidance published on April 17, 2020, the IRS stated, there is no provision in the
law requiring repayment of a payment. The original language is preserved online. See Nina
Olson, The Uncertainty of Death and Taxes: Economic Stimulus Payments to Deceased Indi-
viduals, PROCEDURALLY TAXING (May 11, 2020), https://perma.cc/W8EJ-LRH6. Although
this guidance has been reworded slightly to there is no provision in the law that would require
individuals who qualify for a Payment based on their 2018 or 2019 tax returns, to pay back all
or part of the payment, if based on the information reported on their 2020 tax returns, they no
longer qualify for that amount or would qualify for a lesser amount, the original statement is
a more accurate reading of the statute. Question J3, Economic Impact Payment Information
Center   Topic J: Reconciling on Your 2020 Tax Return, IRS, https://perma.cc/LLU6-DJS3
(last updated Dec. 8, 2020).
4 The CARES Act distinguishes between resident aliens, who must pay U.S. taxes, and
nonresident aliens, who need not. While the designation alien is an antiquated and offen-
sive term carrying powerful connotation, it continues to be a common legal term of art in U.S.

1

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