STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

vs. ) CASE NO. 86-2581

)

ARCHIE L. ATKINS, )

)

Respondent. )

)

RECOMMENDED ORDER

For Petitioner: R. Craig Hemphill, Esquire

Jacksonville, Floroida

For Respondent: Daniel D. Richardson, Esquire

Jacksonville, Floroida

This is a case in which the State of Florida, Department of Health and Rehabilitative Services, instituted a proceeding for the collection through Federal Tax Refund Offset of a sum of money determined to be owed by Archie L. Atkins to the State of Florida by judgment of the Circuit Court of Duval County, Florida. Archie L. Atkins contests the interception of his federal tax refund, primarily on the grounds that his debt to the State of Florida is not "overdue support" or "past due support" within the meaning of the applicable rules and statutes.

Atkins requested a formal hearing, but shortly before the scheduled date of the hearing the parties agreed that there were no disputed issues of material fact. Accordingly, they advised the Hearing Officer that they wished to waive a formal evidentiary hearing and submit this case to the Hearing Officer for preparation of a Recommended Order on the basis of stipulated facts. By order dated October 3, 1986, the hearing was cancelled and a schedule was established for the submission of the parties' waiver of right to formal hearing, their statement of stipulated facts, and their proposed recommended orders or legal memorandums. The Department filed its legal memorandum on October 24, 1986. On October 27, 1986, the waiver of right to a formal hearing and stipulation of facts were filed, along with Atkins' legal memorandum.

FINDINGS OF FACT

The following are the facts to which the parties have stipulated:

1. A Complaint to Determine Paternity was filed in Duval County, Florida, in May of 1984, alleging that Archie L. Atkins was the father of Jimmy Lemont Pickney.

   
   

2. Jimmy Lemont Pickney was born on May 1, 1971, to Betty Ruth Pickney. The birth certificate of the child did not indicate the name of the father.

3. In his Answer to Complaint, Archie L. Atkins denied any knowledge with regard to the paternity issue, and denied that he was, in fact, the father of the minor child who was thirteen years old at the time the petition was filed.

   
   

4. A jury trial was held on the issue of paternity. At that time, Archie

   L. Atkins testified that although he had met Betty Ruth Pickney, he had not had sexual intercourse with her and was unaware that she had conceived a child which she claimed to be his. However, in March of 1985 the jury determined that Archie L. Atkins was, in fact, the father of Jimmy Lemont Pickney. A Final Judgment of Paternity was entered by The Honorable John S. Cox on March 21, 1985. (Copy attached) The Court reserved jurisdiction to determine the amount of child support to be paid by Archie L. Atkins and to establish a public assistance child support obligation and to tax costs.

   
   

5. In its Order of Modification, the Court determined that the sum of

   $8,611.50 was the public assistance child support obligation owed by the Defendant to the State of Florida for assistance paid on behalf of the minor from October 1974 to April 1, 1985. (Copy attached) The Defendant was ordered to pay $25 per week for the support of the minor child and $5 per week toward the public assistance child support obligation.

   
   

6. Approximately one year after the commencement of child support, it was determined that Archie L. Atkins was then in contempt due to his failure to make the payments previously ordered on April 8, 1985. Specifically, he was $897.78 behind through March 21, 1986. Mr. Atkins was ordered to pay $897.78 instantly plus $250 to be applied toward the public assistance child support obligation. (Copies attached) Mr. Atkins paid both the $897.78 and the $250 as ordered by the Court.

   
   

7. At the same time the Court entered its Contempt Order, the Court directed that future payments be deducted from Mr. Atkins' pay check by his employer, the United States Postal Service.

   
   

8. Archie Atkins and his wife, Richardine Atkins, overpaid their 1985 Federal Income taxes in the amount of $1,605.21 and were entitled to a refund in that amount. However, the Office of Child Support Enforcement sought to intercept that tax refund and to apply it toward the public assistance child support obligation. Mr. Atkins was notified of the interception on June 2, 1986, and requested a hearing on June 19, 1986.

   
   

   CONCLUSIONS OF LAW

   
   

   Based on the foregoing stipulated facts and on the applicable legal principles, I make the following conclusions of law:

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding.

   
   

10. Title 42 USCS Sec. 664 is the federal statute providing for the collection of past-due support from federal tax refunds. With an exception not relevant here, subsection (c)(1) of Section 664 defines the term "past-due support" as follows:

    
    

    [T]he term "past-due support" means the amount of a delinquency, determined under a court order, or an order of an administrative process established under State law, for

    support and maintenance of a child, or of a child and the parent with whom the child is living.

    
    

11. Regulations implementing the foregoing statutory provision are found at 45 CFR 303.72. Section (a) of that regulation provides that "Past-due support, as defined in Section 301.1 of this chapter, qualifies for offset . . .

    ." The definitions in Section 301.1 include the following:

    
    

    "Past-due support" means amount of support determined under a court order or an order of an administrative process established under State law for support and maintenance of a child or of a child and the parent with whom the child is living, which has not been paid. For purposes of referral for Federal income tax refund offset of support due an individual who has applied for services under Section 302.33 of this chapter, "past-due support" is limited to support owed to or on behalf of a minor child.

    
    

12. The manner in which the tax refund intercept program usually operates is described in Presley v. Regan, 604 F.Supp. 609 (N.D.N.Y. 1985), and Smith v. Onondaga County Support Collection Unit, 619 F.Supp. 825 (N.D.N.Y. 1985). In the state of Florida, the Department of Health and Rehabilitative Services has been designated as the state agency responsible for the child support enforcement program, including the tax refund intercept aspects of the program. See Sec. 409.2557, Fla. Stat.

    
    

13. Implicit in the statutory definition of "past-due support" is the notion that the parent/taxpayer whose tax refund is sought to be intercepted is delinquent in making some court- ordered payment for support and maintenance of a child or child and custodial parent. Although Atkins has a large debt to the State of Florida, the same court order that established the amount of that debt also established a payment schedule pursuant to which Atkins is required to pay only a certain amount each month towards the liquidation of that large debt. At one time Atkins was delinquent in those periodic payments, but he has paid the amount of the delinquency. Regardless of the amount of Atkins' debt to the State of Florida, so long as he is current in making his court-ordered periodic payments there will be no "delinquency" within the meaning of Title 42 USCS Sec. 664(c)(1). Absent such a delinquency, there is no basis for intercepting Atkins' federal tax refund.

RECOMMENDATION

For the foregoing reasons it is recommended that the Department of Health and Rehabilitative Services enter a Final Order in this case to the effect that the Department is not entitled to intercept Archie L. Atkins' federal tax refund unless and until Atkins is delinquent in the periodic court-ordered payment, and to the further effect that any federal tax refund which may already have been intercepted shall be returned to Atkins.

DONE AND ENTERED this 4th day of November, 1986, at Tallahassee, Florida.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1986.

COPIES FURNISHED:

R. Craig Hemphill, Esquire Assistant Counsel

Child Support Enforcement Program

105 East Monroe Street Jacksonville, Florida 32202

Daniel Richardson, Esquire 1004 First Union Building Jacksonville, Florida 32202

William Page, Jr., Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 86-002581

Orders for Case No: 86-002581