**§1.912 Collection by offset.**

\(a\) *Authority and scope*. In accordance with the procedures set forth
in 31 CFR 901.3, as well as 31 CFR part 285, VA shall collect debts by
administrative offset from payments made by VA to a debtor indebted to
VA. Also in accordance with 31 CFR 901.3(b), as well as 31 CFR part 285,
VA shall refer past due, legally enforceable non-tax debts which are
over 180 days delinquent to Treasury for collection by centralized
administrative offset (further procedures are set forth in paragraph (g)
of this section). This section does not pertain to offset from either VA
benefit payments made under the authority of 38 U.S.C. 5314 or from
current salary, but does apply to offset from all other VA payments,
including an employee's final salary check and lump-sum leave payment.
Procedures for offset from benefit payments are found in §1.912a.
Procedures for offset from current Federal salary are found in §§1.980
through 1.995. NOTE: VA cannot offset, or refer for the purpose of
offset, either under the authority of this section or under any other
authority found in §§1.900 through 1.953 and §§1.980 through 1.995, any
VA home loan program debt described in 38 U.S.C. 3726 unless the
requirements set forth in that section have been met.

\(b\) *Notification.* Prior to initiation of administrative offset, if
not provided in the initial notice of indebtedness, VA is required to
provide the debtor with written notice of:

\(1\) The nature and amount of the debt;

\(2\) VA's intention to pursue collection by offset procedures from the
specified VA payment, the date of commencement of offset, and the exact
amount to be offset;

\(3\) The opportunity to inspect and copy VA records pertaining to the
debt;

\(4\) The right to contest either the existence or amount of the debt or
the proposed offset schedule, or if applicable, to request a waiver of
collection of the debt, or to request a hearing on any of these matters;

\(5\) That commencement of offset will begin, unless the debtor makes a
written request for the administrative relief discussed in paragraph
(b)(4) of this section within 30 days of the date of this notice; and

\(6\) The opportunity to enter into a written agreement with VA to repay
the debt in lieu of offset.

\(c\) *Deferral of offset.*

\(1\) If the debtor, within 30 days of the date of the notification
required by paragraph (b) of this section, disputes in writing the
existence or amount of the debt or the amount of the scheduled offset,
offset shall not commence until the dispute is reviewed and a decision
is rendered by VA adverse to the debtor.

\(2\) If the debtor, within 30 days of the date of the required
notification by VA, requests in writing the waiver of collection of the
debt in accordance with §1.963, §1.963a, or §1.964, offset shall not
commence until VA has made an initial decision to deny the waiver
request.

\(3\) If the debtor, within 30 days of the required notification by VA,
requests in writing a hearing on the issues found in paragraphs (c)(1)
and (2) of this section, offset shall not commence until a decision is
rendered by VA on the issue which is the basis of the hearing.

\(d\) *Exceptions.*

\(1\) Offset may commence prior to either resolution of a dispute or
decision on a waiver request as discussed in paragraph (c) of this
section, if collection of the debt would be jeopardized by deferral of
offset (for example, if VA first learns of the debt when there is
insufficient time before a final payment would be made to the debtor to
allow for prior notice and opportunity for review or waiver
consideration). In such a case, notification pursuant to paragraph (b)
of this section shall be made at the time offset begins or as soon
thereafter as possible. VA shall promptly refund any money that has been
collected that is ultimately found not to have been owed to the
Government.

\(2\) If the United States has obtained a judgment against the debtor,
offset may commence without the notification required by paragraph (b)
of this section. However, a waiver request filed in accordance with the
time limits and other requirements of §1.963, §1.963a, or §1.964 will be
considered, even if filed after a judgment has been obtained against the
debtor. If waiver is granted, in whole or in part, refund of amounts
already collected will be made in accordance with §1.967.

\(3\) The procedures set forth in paragraph (b) of this section may be
omitted when the debt arises under a contract that provides for notice
and other procedural protections.

\(4\) Offset may commence without the notification required by paragraph
(b) of this section when the offset is in the nature of a recoupment. As
defined in 31 CFR 900.2(d), recoupment is a special method for adjusting
debts arising under the same transaction or occurrence.

\(e\) *Hearing.*

\(1\) After a debtor requests a hearing, VA shall notify the debtor of
the form of the hearing to be provided; i.e., whether the hearing will
either be oral or paper. If an oral hearing is determined to be proper
by the hearing official, the notice shall set forth the date, time, and
location of the hearing. If the hearing is to be a paper review, the
debtor shall be notified that he or she should submit his or her
position and arguments in writing to the hearing official by a specified
date, after which the record shall be closed. This date shall give the
debtor reasonable time to submit this information.

\(2\) Unless otherwise required by law, an oral hearing under this
paragraph is not required to be a formal evidentiary type of hearing.

\(3\) A debtor who requests a hearing shall be provided an oral hearing
if VA determines that the matter cannot be resolved by review of
documentary evidence. Whenever an issue of credibility or veracity is
involved, an oral hearing will always be provided the debtor. For
example, the credibility or veracity of a debtor is always an issue
whenever the debtor requests a waiver of collection of the debt. Thus, a
hearing held in conjunction with a waiver request will always be an oral
hearing. If a determination is made to provide an oral hearing, the
hearing official may offer the debtor the opportunity for a hearing by
telephone conference call. If this offer is rejected or if the hearing
official declines to offer a telephone conference call, the debtor shall
be provided an oral hearing permitting the personal appearance of the
debtor, his or her personal representative, and witnesses. Witnesses
shall testify under oath or affirmation.

\(4\) In all other cases where a debtor requests a hearing, a paper
hearing shall be provided. The debtor shall be provided an opportunity
to submit material for the record. A paper hearing shall consist of a
review of the written evidence of record by the designated hearing
official.

\(f\) *Statutes of limitation; multiple debts*. When collecting multiple
debts by administrative offset, VA shall apply the recovered amounts to
those debts in accordance with the best interests of the United States,
as determined by the facts and circumstances of the particular case,
paying special attention to applicable statutes of limitation. In
accordance with 31 CFR 901.3(a)(4), VA may not initiate offset to
collect a debt more than 10 years after VA's right to collect the debt
first accrued (with certain exceptions as specified in 31 CFR
901.3(a)(4)).

\(g\) *Centralized administrative offset*.

\(1\) When VA refers delinquent debts to Treasury for centralized
administrative offset in accordance with 31 CFR part 285, VA must
certify that:

\(i\) The debts are past due and legally enforceable; and

\(ii\) VA has complied with all due process requirements under 31 U.S.C.
3716(a) and paragraphs (b) and (c) of this section.

\(2\) Payments that are prohibited by law from being offset are exempt
from centralized administrative offset.

\(h\) *Computer Matching and Privacy Act waiver*. In accordance with 31
U.S.C. 3716(f), the Secretary of the Treasury may waive the provisions
of the Computer Matching and Privacy Protection Act of 1988 concerning
matching agreements and post-match notification and verification (5
U.S.C. 552a(o) and (p)) for centralized administrative offset upon
receipt of a certification from a creditor agency that the due process
requirements enumerated in 31 U.S.C. 3716(a) and paragraphs (b) and (c)
of this section have been met. The certification of a debt in accordance
with paragraph (g) of this section will satisfy this requirement. If
such a waiver is granted, only the Data Integrity Board of the
Department of the Treasury is required to oversee any matching
activities, in accordance with 31 U.S.C. 3716(g).

\(i\) *Requests by creditor agencies for offset*. Unless the offset
would not be in VA's best interest, or would otherwise be contrary to
law, VA will comply with requests by creditor agencies to offset VA
payments (except for current salary or benefit payments) made to a
person indebted to the creditor agency. However, before VA may initiate
offset, the creditor agency must certify in writing to VA that the
debtor has been provided:

\(1\) Written notice of the type and amount of the debt and the intent
of the creditor agency to use administrative offset to collect the debt;

\(2\) The opportunity to inspect and copy agency records related to the
debt;

\(3\) The opportunity for review within the agency of the determination
of the indebtedness; and

\(4\) The opportunity to make a written agreement to repay the debt.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).

\[52 FR 42105, Nov. 3, 1987, as amended at 54 FR 34980, Aug. 23, 1989;
69 FR 62194, Oct. 25, 2004\]

*Next Section is §1.912a*