Justin Schwegel

Publication Date

Winter 2021


Individuals who received advance refunds under the Coronavirus Aid, Relief, and Economic Security (CARES) Act met the eligibility criteria in their 2019 tax filings (or 2018 filings if they had not yet filed 2019 taxes). Advance refunds are treated as a refund of an overpayment of 2018 or 2019 taxes. Subsequent changes in tax filing status in 2020 do not retroactively make one ineligible for an advance refund. On May 6, the IRS issued guidance on its Economic Impact Payment Information Center website instructing incarcerated individuals and certain resident aliens that they should return the economic impact payments (also called advance refunds or stimulus payments) they received from the IRS. This guidance is not legally binding for two distinct reasons. First, it was issued without conforming to the procedural requirements of the Administrative Procedure Act. Second, the guidance exceeded the IRS’s rulemaking authority because it contradicts unambiguous statutory language.


The author extends gratitude to Sarah Bradford and CUNY Law Review staff editors of this article.

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