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UNIVERSITY OF PITTSBURGH SCHOOL OF LAW

PITTSBURGH
TAX REVIEW
VOLUME 7 SPRING 2010 IssuE 2
ARTICLES
THE CIVIL ARREST AND IMPRISONMENT OF TAXPAYERS:
AN ANALYSIS OF THE WRIT OF NE EXEAT REPUBLICA ..... Anthony E. Rebol/o
No REPARATION WITHOUT TAXATION: APPLYING THE
INTERNAL REVENUE CoDE TO THE CONCEPT OF
REPARATIONS FOR SLAVERY AND
SEGREGATION ...................... Andre Smith and Carlton Waterhouse
'
http://trotteview.law.pitt.edu
ARTICLES
THE CIVIL ARREST AND IMPRISONMENT O)l.,TAXPAYERS: AN
ANALYSIS OF THE WRIT OF NE E!J[EAT REPUBLICA
Anthony E. Rebollo'
Table of Contents
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
II. What is Ne Exeat Republica ("NER'')? . . . . . . . . . . . . . . . . . . . . . 107
A. Basic Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
B. The Writ ofNER, As Defined by the Service ............. 107
III. Early References toNER in Federal Statutes..... . . . . . . . . . . . . 107
A. General Jurisdictional Provisions . . . . . . . . . . . . . . . . . . . . . . 107
B. First Reference toNER in a Federal Tax Statute . . . . . . . . . . 109
IV. When and Why NER Became Part of the Code . . . . . . . . . . . . . . . 110
A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
B. NER Appears in the "General Provisions" of the Revenue
Act of\918 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
C. The Absence of Legislative History . . . . . . . . . . . . . . . . . . . . 112
D. The Expected Impact ofNER, As Explained by Mark Eisner 113
E. References toNER in Subsequent Revenue Acts . . . . . . . . . . 114
V. NER as Applied in Federal Tax Cases....... . . . . . . . . . . . . . . . 115
A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
* Sharehold.er, Richardson Plowden & Robinson, P.A., Columbia, South Carolina; Boalt Hall
School of Law, University of California, Berkeley, J.D., 1989. Mr. Rebollorepresents taxpayers in civil and
criminal tax controversies and is licensed to practice in Texas, Georgia and South Carolina. He wishes to
thank his paralegal, Vonja Huff, for her assistance with the preparation of this article, as well as his folks:
Antonio E. Rebollo, Barbara Brown Rebollo, Dr. John A. Stetson and Doris Crepeault Stetson.
103
104 PITTSBURGH TAX REVIEW [Vol. 7:103
B. Principal Cases Where the Request for a Writ ofNER Was
Refused ......................................... . 115
1. United States v. Robbins ......................... . 115
2. United States v. Shaheen ........................ . 118
a. Postscript to Shaheen ........................ . 120
C. Principal Cases Where the Request for a Writ ofNER Was
Granted ......................................... . 121
I. The Clough Cases .................... ........ .
' ~
a. Clough I ............... > ..... : ............ .
121
121
b. Clough II ................................. . 121
c. Clough Ill . .......................... : ..... . 123
2. United States v. Lipper .......................... . 123
3. United States v. Mathewson ...................... . 126
D. Other Federal Tax Cases Referencing the Writ ofNER .... . 127
I. Overlapping Travel Restrictions ................... . 128
2. NER Bonds As a Collection Source ................ . 128
E. NER as Interpreted and Applied by the Service .......... . 129
VI. Historical Uses ofNER & How They Compare to the Modern
Use ofNER in Tax Cases .............................. . 132
A. English Origins: The Writ of Ne Exeat Regno ........... . 132
B. Historical Review ofNER in Passport Matters ........... . 133
VII. The "Disconnect" Between the Historical Uses ofNER and Its
Use in Tax Cases ..................................... . 135
A. Introduction ...................................... . 135
B. Writs of Extent as a Tax Collection Device ............. . 136
L
I. Writs of Extent in England ....................... . 136
2. Writs of Extent in the United States ................ . 138
3. Writs of Extent Applied Against Collectors (As Opposed
to Taxpayers) ................................. . 140
4. The Primary Difference Between a Writ of Extent and a
WritofNER .................................. . 141
C. Conclusion as to the Historical Basis for Applying NER in
Tax Cases ....................................... . 141
I. Federal Cases (Unrelated to Tax) Involving NER ..... . 141
2. State Cases Involving NER ....................... . 144
3. The Past, Limited Use ofNER, for Any Purpose, State
or Federal .................................... . 144
VIII. Potential Constitutional Problems with NER ................ . 145
A. The Debtors' Prison Argument ....................... . 145
B. The Right to Travel ................................ . 149
2010) WRIT OF NE EXEAT REPUBLICA 105
1. International Travel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
2. Interstate Travel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
3. Unresolved Questions About NER and Interstate Travel
in Tax Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
IX. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
A. Given tbe Service's Other Powers to Collect Tax, Are Writs
ofNER Necessary? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
B. Abandoning the Use of Writs ofN]:\R
...................... ..... ! ............... 156
106 PITISBURGH TAX REVIEW [Vol. 7:103
l. INTRODUCTION
Section 7402 of the Internal Revenue Code (the "Code") addresses the
ability of federal district courts to review and decide matters relating to federal
taxation.
1
As a longstanding, fundamental procedural provision of tax law, one
might assume that there is little to say about 7 402 at this point. Yet contained
within the statute is a reference tone exeat republica obscure writ
that is ancient, infrequently used and, historically stranger to tax law.
2
When
issued, however, a writ ofNER can have dire consequences.
The specific reference toNER in 7402 raises a number of questions,
starting with the most basic: "What is a writ ofNER?" In short, a writ ofNER
is used to obtain "equitable bail" and, absent the payment thereof, to effect a
"civil arrest."' This Article analyzes the use of writs ofNER in the context of
federal tax cases.
After briefly reviewing the basic definitions of the term "NER" (Part II),
the Article examines the origins of specific references to NER in federal
statutes (Part III). Next, the Article describes when and why NER first
appeared in the Code (Part IV) and analyzes tax cases where writs of NER
have been considered, as well as internal pronouncements by the Service
regarding the use of such writs (Part V). The Article then reviews the historical
uses of writs of NER in early English and Anglo-American law (Part VI),
demonstrating that a "disconnect" exists between the original nses of the writ
and the use of the writ in tax cases (Part VII). Finally, the Article considers
"debtors' prison" and "right to travel" concerns associated with the use of
NER in federal tax cases (Part VIII), and concludes with a discussion about
whether writs ofNER should still be used as a tax compliance measure (Part
IX).
I. LR.C. 7402.
2. ld In pertinent part, 7402(a) states the following:
The district courts of the United States at the instance of the United States shall have such
jurisdiction to make and issue in civil actions, writs and orders of injunction, and of ne exeat
republica, orders appointing receivers, and such other orders and processes, and to render such
judgments and decrees as may be necessary or appropriate for the enforcement of the internal
revenue Jaws.
!d. 7402(a).
3. See discussion infra Part IT; see also 57 AM. JUR. 2d. Ne Exeat 2 (2001) ("Ne exeat is in the
nature of civil or equitable bail.") (footnote omitted); 5 id. Arrest 53 (2007) ("Arrest on civil process is
intended to secure the presence of the defendant until fmaljudgment.") (footnote omitted).
2010] WRlT OF NE EXEAT REPUBLICA 107
II. WHAT IS NE EXEAT REPUBLICA ("NER")?
A. Basic Definition
The term NER is defined in Black's Law Dictionary as follows:
[Latin he not depart"]. 1. A writ restraining a person the republic;
specif., an equitable writ ordering the person to Whom ii:'s-iddfessed not to leave the
jurisdiction of the court or the state Ne exeat writs are usu. issued to ensure the
satisfaction of a claim against the defendant. The full phrase is ne exeat republica ...
[Latin "let him not go out ofthe republic"]. 2. Family law. An equitable writ restraining
a person from leaving, or removing a child or property from, tl;te jurisdictjon. A ne
exeat is often issued td prohibit a person from remOViilg a child or property from the
jurisdiction-and sometimes from leaving the jurisdiction-Also termed writ of ne exeat;
ne exeat republica; ne exeat regno.
4
B. The Writ ofNER, As Defined by the Service
According to a 1998 Field Service Advisory, the definition of a writ of
NER, and the elements needed to obtain it in a tax case, are as follows:
[A] writ of ne exeat republica is an extraordinary collection remedy which may result in
a taxpayer being temporarily confined in prison (ifuuable to post suitable bond) for the
taxpayer's non-payment of federal taxes, where the Service can show generally: (1) the
existence of significant tax liabilities; (2) the taxpayer has a present ability to pay the tax
liabilities; but (3) the taxpayer has chosen instead to attempt to place both himself and
his assets beyond the collection jurisdiction of the United States.
5
III. EARLY REFERENCES TONER IN FEDERAL STATUTES
A. General Jurisdictional Provisions
The Judiciary Act of 1789, "by which the first Congress established the
judicial conrts of the United States and defined their jurisdiction,"' did not
specifically refer to NER. Instead, section 14 of the Act simply provided that
courts of the United States "shall have power to issne writs of scire facias,
habeas corpus . . . and all other writs not specifically provided for by
4. BLACK'SLAWDICTIONARY 1060 (8th ed. 2004).
5. I.R.S. Field Service Advisory, 1998 WL 1757128 (Nov. 20, 1998).
6. Buzard v. Houston, 119 U.S. 347, 351 (1886) (holding that a mere fraud claim does not give rise
to equity jurisdiction).
108 PIITSBURGH TAX REVIEW [Vol. 7:103
statute .... "
7
In 1793, however, the Act was amended, resulting in the first
federal statute to reference the writ ofNER:
[W]rits ofne exeat and of injunction maybe granted by any judge ofthe supreme court
in cases where they might be granted by the supreme court or a circuit court; (a) but no
writ of ne exeat shall be granted unless a suit in equity be commenced, and satisfactory
proof shall be made to the court or judge granting the same, that the defendant designs
quickly to depart from the United States ....
8
~
::.. ~ : ,.
After 1793, the Judicial Code was amended several times and, in each
instance, the explicit reference to NER was retained, as was the requirement
that it was not to be granted absent the commencement of a suit in equity? In
1948, however, the reference to NER in the Judicial Code was omitted.
10
Consequently, it has been some sixty years since NER has been specifically
mentioned in the substantive provisions of Title 28 of the United States Code,
which addresses the organization, jurisdiction, venue, and procedures of the
federal courts."
7. Judiciary Act of 1789, ch. 20, 14, 1 Stat. 73, 81-82. Writs of scire facias were used to revive
a judgment, either after the lapse of time, on a change of parties, or to otherwise effect an execution of a
judgment. See BLACK'SLAWDICTIONARY 1373-74 (8th ed. 2004). However, the writ was abolished in 1937
by FED. R. CIV. P. 81 (b) ("The writs of scire facias and mandamus are abolished."); see also FED. R. CIV.
P. 81 advisory committee's notes. Writs of habeas corpus, on the other hand, are still frequently used to test
the legality of detention or imprisonment. 28 U.S.C. 2241-2255 (2006).
8. Judiciary Actofl793, cb. 22, 5, I Stat. 333,334-35.
9. See 28 U.S.C. 376 (1940); Judicial Code of 1911, ch. 231, 261, 36 Stat. 1087, 1162; U.S.
Rev. Stat. 717 (2d ed. 1873-1874).
10. The specific reference toNER in 28 U.S.C. 376 was not carried forward into the Judicial Code
of 1948. See Act of June 25, 1948, ch. 646, 62 Stat. 869, 996 (schedule of laws repealed, including 28
u.s.c. 376).
11. Impliedly, however, the following language from the All Writs Act (which is part of Title 28)
authorizes the issuance a writ of NER by federal district courts: "The Supreme Court and all courts
established by Act of Congress may issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. 1651 (2006); see id (in the
Historical and Revision Notes following the statute, observing that the All Writs Act consolidates certain
repealed sections of the United States Code, including 28 U.S.C. 376, which had expressly pennitted the
issuance of writs ofNER); see also FED. R. CN. P. 64 (entitled "Seizing a Person or Property" and allowing
for civil "arrest" and "other corresponding or equivalent remedies").
2010] WRJT OF NE EXEAT REPUBLICA 109
B. First Reference toNER in a Federal Tax Statute
The first federal income tax was enacted in 1861.
12
While it contained a
number of basic tax collection provisions,
13
none of them specifically
mentioned NER; nor did subsequent incarnations of the 1861 Act, which
maintained the income tax both during and after the end of the war.
14
The Civil
War era income tax eventually expired in 1872.
15
Yet another federal income tax was enacted in 1894.
16
However, it was
declared unconstitutional in Pollock v. filgr;mifs' Loan & Trust Co.
17
The
provisions of the 1894 Act, like the Civil income tax that preceded it, did
not include any references to NER.
Shortly after the constitutional problems with the 1894 Act were
eliminated (with the ratification of the Sixteenth Amendment in February
1913),1' the Revenue Act ofl913 became law.
19
While it would eventually be
recognized as one of the foundations of modem-day federal income taxation,Z
0
the Revenue Act of 1913 contained no provisions referencing NER; nor did
subsequent tax legislation passed in 1914, 1916 and 1917.
21
As discussed
12. Revenue Actof186l, ch. 45, 49, 12 Stat. 292,309. The Revenue Actofl861 was superseded
by the Revenue Act of1862, ch. 119, 89-90, 12 Stat. 432, 473. For a discussion of the Civil War origins
of the nation's frrst income tax, see STEVEN A.BANKET AL., WAR AND TAXES 23-44 (2008), and STEVEN
R. WEISMAN, THE GREAT TAX WARE 9-104 (2002).
13. See, e.g., Revenue Act of 1861 51 (authorizing collectors of tax to levy on property and to
examine taxpayers under oath).
14. See Revenue Act of 1865, ch. 78, 13 Stat. 469, 479; Revenue Act of 1864, ch. 173, 116, 13
Stat. 223, 281; Revenue Act of 1862 89-90.
15. Naturalization Act of 1870, ch. 255, 6, 16 Stat. 256, 257; see also WEISMAN,supra note 12,
at 100-01 (describing the sentiments of Congress at the time the tax was set to expire in 1872).
16. Tariff Act, ch. 349, 27,28 Stat. 553 (1894). For a brief summary of the 1894
income tax, see WEISMAN, supra note 12, at 145.
17. 157 U.S. 429 (1895), on reh 'g, 158 U.S. 601,637 (1895) (finding the income tax invalid because
it failed to follow the constitutionally mandated requirements of apportionment and uniformity); see also
WEISMAN, supra note 12, at 149-61 (analyzing the challenges to the 1894 income tax and both of the
opinions of the Supreme Court in Pollock).
18. U.S. CONST. amend. XVI ("The Congress shall have power to lay and collect taxes on incomes,
from whatever source derived, without apportionment among the several States, and without regard to any
census or enumeration."). The ratification of the Sixteenth Amendment is described in WEISMAN, supra note
12, at 237-<55.
19. Revenue Act of 1913, ch. 16, 38 Stat. 114, 166-81; see alva WEISMAN, supra note 12, at 281
(summarizing the basic provisions of the 1913 income tax).
20. See Baker v. Comm'r, 75 T.C. 166, 168 (1980) ("Our modern income tax laws have been in
effect continuously since 1913[.}"), aff'd per curiam, 677 F.2d 11 (2d Cir. 1982).
21. See WarRevenueActof1917, ch. 63,40 Stat. 300; Revenue Actofl917, ch. 159, 39 Stat. 1000;
Revenue Act of 1916, ch. 463, 39 Stat. 756; Revenue Act of1914, ch. 331,38 Stat. 745; Revenue Act of
1913.
110 PITTSBURGH TAX REVIEW [Vol. 7:103
below, the first specific reference toNER in a federal tax statute appeared in
1919, as part of the Revenue Act of 1918.
22
IV. WHEN AND WHY NER BECAME PART OF THE CODE
A. Introduction
In short, the outbreak of World War I and its economic impact on the
,,,;w
United States explain when and why NER beca!Ile p(f!'tof tlie Code.
World War I began in July 1914.
23
While it would takeunti1Aprilofl917
for the United States to declare war with Germany,
24
Congress anticipated an
immediate loss in revenue from tariffs shortly after the war began in 1914.
25
As a result, the Revenue Act of 1914 was passed in an effort to offset those
lost revenues.
26
However, the Revenue Act of 1914 was set to expire on January I, 1916.
27
As that date approached, and it appeared more likely that the United States
would enter the war, Congress considered raising additional revenue by raising
income tax rates.Z
8
The result of those deliberations was the enactment of the
Revenue Act of 1916.
29
It soon became clear that even more revenue would be required and, when
the expenses of war preparation began to outpace receipts,
30
Congress passed
22. Revenue Act of 1918, ch. 18, 1318, 40 Stat. 1057, 1148 (1919).
23. See G.J. MEYER, A WORLD UNDONE: THE STORY OF THE GREAT WAR: 1914-1918, at xvii
(2006).
24. !d. at xix.
25. See BANKET AL., supra note 12, at 52; see also WEISMAN, supra note 12, at 291 (describing the
"sharp faUoff' in imports and tariff revenue).
26. See BANK ET AL., supra note 12, at 52. The Revenue Act of 1914, 21 sched. A, taxed bonds,
debentures, and certificates of indebtedness issued by any association, company, or corporation. See also
Lawyers' Mortgage Co. v. Anderson, 67 F.2d 889, 892 (2d Cir. 1933) (describing the origins of these
provisions).
27. Revenue Act of 1914, ch. 331, 23,38 Stat. 745,764 (repealed 1916).
28. See BANKET AL., supra note 12, at 53; see also WEISMAN, supra note 12, at30l-02 (describing
the need to prepare for war and proposals to fund it based on a "broad array of tax increases"). The increase
in tax rates was substantial. The Revenue Act of 1913 "impos[ ed] a 'normal' tax of one percent (with an
exemption of$3,000 for an individual and $1,000 additional for a married person) and a 'surtax' ranging
from one percent on net income from $20,000 to $50,000 up to 6 percent on that part of any net income
exceeding $500,000." 1 BORIS I. BIITKER& LA WRENCELOK.KEN, FEDERAL TAXATION OF INCOME, ESTATES
AND GIFTS 1{ 1.1.3, at 1-7 (3d ed. 1999) (footnote omitted). Under the Revenue Act of 1916, ch. 463, 1,
39 Stat. 756, 756, however, the lowest rates of tax doubled (to two percent) and the top rate of the "surtax."
was more than doubled, to thirteen percent.
29. See BANK ET AL., supra note 12, at 53-55.
30. Id at 55.
2010] WRIT OF NE EXEAT REPUBliCA Ill
the Revenue Act of!917 in March of that year.'
1
That Act was followed, seven
months later, by the War Revenue Act of 1917.
32
In both instances, the
legislation was designed to raise the funds needed for the United States'
participation in World War !.
33
The assorted revenue acts failed to produce enough revenue. That meant
that, even after the armistice ending World War I (signed on November II,
1918),
34
the United States still needed addition% funds to cover the costs of its
participation in the war." spent much of 1918
debating what would eventually become the Revenue Act of 1918, which was
actually passed in early 1919.
36
Designed to raise some $8 billion, the Act was
described by the press as "[t]he largest revenue raising bill in the history of this
or any other nation .... "
37
B. NER Appears in the "General Provisions" of the Revenue Act of 1918
The first federal tax statute to specifically mention NER was included as
one of the general provisions of the Revenue Act of 1918.
38
Consisting of two
paragraphs, section 1318 of the Revenue Act of 1918 stated the following:
Sec. 1318. That if any person is summoned under this Act to appear, to testify, or to
produce books, papers or other data, the district court of the United States for the district
in which such person resides shaH have jurisdiction by appropriate process to compel
such attendance, testimony, or production of books, papers, or other data.
The district courts of the United States at the instance of the United States are hereby
invested with such jurisdiction to make and issue, both in actions at law and suits in
equity, writs and orders of injunction, and of ne exeat republica, orders appointing
receivers, and such other orders and process, and to render such judgments and decrees,
31. Id. at 56 (imposing an "excess profits tax," in addition to the general income tax); see Revenue
Act of l9l7. ch. [59, 39 Stat lOOO.
32. War Revenue Act of 1917, ch. 13, 2-3,40 Stat. 300, 301 (repealed 1919) (increasing income
tax rates and simultaneously lowering amounts exempt from income).
33. See AL., supra note 12, at 55-57,61.
34. See :MEYER, supra note 23, at xxi.
35. See BANK ET AL., supra note 12, at 76-79; see also WEISMAN, supra note 12, at 335-36
(summarizing the fmancial costs of the war and the number of lives lost).
36. Revenue Act ofl918, ch.l8,40 Stat. 1057 (l919);see also WElSMAN,supra note 12, at 337-38
(characterizing the law as the "fourth and last big revenue measure of the Wilson years").
37. New Revenue Bill Reported; MayBe Law in a Month, N.Y. TIMES, Sept. 4, 1918, at 1. In order
to raise the $8 billion, tax rates and individuals' tax liabilities increased substantially: "Under the Revenue
Act of 1918, individual income tax liability at almost every income level was 10 to 15 times the amount
imposed by the Revenue Act of 1913." BIITKER & LoKKEN, supra note 28, 1.1.4, at (footnote
omitted).
38. RevenueActof1918 1318.
112 PITISBURGH TAX REVIEW [Vol. 7:103
granting in prOper cases both legal and equitable relief together, as may be necessary or
appropriate for the enforcement of the provisions of this Act. The remedies hereby
provided are in adqition to and not exclusive of any and all other remedies of the United
States in such courts or otheiWise to enforce such provisions.
39
C. The Absence of Legislative History
Claude Kitchin, a Congressman from North Carolina and Chairman of the
House Committee on Ways and Means, was Ofl:e of the PJil\)mY architects of
the Revenue Act of 1918.
40
When asked in May l?'f8 about whether the
framework of the Act had been presented to the Ways and Means Committee,
Kitchin responded that "No: the Ways and Means Committee will write this
bill themselves."
41
1n writing the law themselves, the members of the Ways and Means
Committee recycled and adapted provisions of earlier revenue acts, as
confirmed by Kitchin's comments during a September 1918 speech: "The next
title is title 13, general administrative provisions. These provisions we brought
forward from the different acts and in some places amended here and there, in
order to aid the department in more effectively administering the law ... .'"'
2
Based on a review of the provisions of prior Revenue Acts, it is clear that
section 1318 of the Revenue Act of 1918 (the first tax statute to mention NER)
was modeled after section 20 of the Revenue Act of 1916.
43
As previously
noted, however, the Revenue Act of 1916 did not mention the term NER. The
legislative history, thus, never states why the decision was made to include
NER as part of the Revenue Act of 1918.
44
Nevertheless, Kitchin's statements to the press do suggest the reason. As
explained in a May 1918 newspaper article about what would eventually
39. Id.
40. For biographical information on Claude Kitchin, see WEISMAN, supra note 12, at 303 and also
the BIOGRAPIDCAL DIRECTORY OF THE UNITED STATES CONGRESS, http://bioguide.congress.gov/scripts/
biodisplay.pl?index=K000250 (last visited Mar. 23, 2010).
41. Kitchin Begins Work on Tax Bill of$8,000,000,000, N.Y. TIMES, May 25, 1918, at? [hereinafter
Kitchin Begins Work].
42. 56 CONG. REc. pt. 12, app. 661, 701 (1918) (speech of Rep. Kitchin (DN.C.), Chairman, H.
Comm. on Ways & Means).
43. Section 20 of the Revenue Act of 1916 provided "[t]hat jurisdiction is hereby conferred upon
the district courts of the United States for the district within which any person summoned under this title
to appear to testify or to produce books shall reside, to compel such attendance, production of books, and
testimony by appropriate process." Revenue Act of 1916, ch. 463, 20, 39 Stat. 756, 776.
44. There is, however, no shortage of legislative history with respect to the substantive portions of
the Revenue Act of 1918. For a contemporaneous description of the substantive provisions of the Act, see
Robert Murray Haig, The Revenue Act of 1918, 34 PoL. SCI. Q. 369 (1919).
2010] WRIT OF NE EXEAT REPUBLICA 113
become the Revenue Act of1918, "Mr. Kitchin said that the Ways and Means
Committee would 'get after the profiteer a little,' and would summon some 'of
the dollar-a-year men to tell the enormous profits their firms had reaped while
they were serving the Government for a dollar a year."""
The reference to "dollar-a-year men" described business executives who
worked for the Government, as part of the war effort, for $1 per year.
46
By
highlighting the excesses of profiteering to men who had sacrificed their
financial wellbeing for the good of the country, Jfoitchin apparently believed
that the war profiteers would be shanied inef:compliance with the income tax
laws, which took much of the profit out of profiteering. Writs of NER were
also expected to be effective in reducing profiteering, as discussed below.
D. The Expected Impact of NER, As Explained by Mark Eisner
Mark Eisner was a prominent figure in the early development of the
federal income tax, if for no other reason than his status as a party in one ofthe
classic tax cases, Eisner v. Macomber, which interpreted the meaning of the
term "income."
47
In and before early 1919, Eisner was employed as a tax
collector in New York City."'
In a January 1919 newspaper article, published about one month before
the enactment of the Revenue Act of 1918, Eisner provided one of the best
descriptions of why NER was included as a statutory component of federal tax
law."
9
The Act's "Drastic Provisions Against Evaders" (so labeled in the title
of the article) were described as follows:
45. Kitchin Begins Work, supra note 41.
46. A mat).," as the term was used in World War I, has been defined as follows:
"Someone who serves the federal government for patriotic rather than fmancial reasons. The term came into
use during the war when such volunteers were paid that sum because one dollar was the 'valuable
consideration' needed to make the contracts binding." PAUL DICKSON, WAR SLANG: AMERICAN FIGHTING
WORDS AND PHRASES SINCE THE CML WAR 55 (2d ed. 2004).
47. 252 U.S. 189, 207 (1920) (defining "income" as "the gain realized from capital or labor or both
combined").
48, See 2 MARTINDALE-HUBBELL LA WDIRECTORY (pt. II) 2418 (1953) (listing Eisner's employment
history and other biographical infonnation through 1953). Ironically, Eisner resigned from the Service in
March 1919, explaining that
[t]he salary of$6,000 a year, less $550 for income tax and bond premium, coupled with the personal
responsibility and liability for more than $200,000,000 is too small to pennit the Collector [to) make
any provision for his future and at the same time preserve the dignity which the office deserves.
Mark Eisner Quits to Practice Law, N.Y. TIMES, Mar. 2, 1919, at 25.
49. Sees Inequalities in Income Tax Bill, N.Y. TIMEs, Jan. 4, 1919, at 14.
114 PITTSBURGH TAX REVIEW [Vol. 7:103
To Cure Tax Dodgers.
Mark Eisner, Internal Revenue Collector for the Third or Upper Manhattan District,
said yesterday that if the new revenue bill becomes a law the Government would have
remedies against would-be tax dodgers which have hitherto been unheard of in the field
of taxation. '
The ColJector said that the high rates of the present bill may give some people the
idea that they might just as well leave the country without paying their taxes, and return
a few years later, when "everything shall have blown over."
***
"The tax dodger and the 'war bride'["] may well be surprised at some of the powers
the new bill confers upon the Treasury Department," Eisner said. "For
example, if a speculator in Wall Street should April timke a sudden 'killing' in the
market and decide in May to go to Europe and relnain thei:e for several years, thinking
that be did not have to make a return until the following March anyway, be will learn that
the Commissioner of Internal Revenue wiH have the power to declare his taxable year
ended in April, instead of Dec. 31, and the dodger will be compelled to make a return and
pay the tax forthwith. In any court proceeding, the dodger will learn that the
Commissioner's finding as to his design to abscond without paying the tax, will be
presumptive evidence ofhis intention to abscond and all the explaining will be up to the
dodger."
"But if this unwilling taxpayer should, after being ordered to pay the tax as just
described, decide that he can beat the department to it and quietly take the next boat, he
may learn that the Government has obtained from a District Court a writ of ne exeat
republica, which is another way of saying 'he must not leave the and he may
be taken under that writ from the boat before it sails, and lodged in the Tombs[
51
] until
he puts up a bail bond to stay within the jurisdiction of the court. 5
2
E. References to NER in Subsequent Revenue Acts
Legislation passed after 1919 included the same basic jurisdictional
provision, as well as the specific reference toNER, found in the Revenue Act
of 1918. While renumbered and repackaged as part of those subsequent tax
laws, the language of section 1318 of the Revenue Act of 1918 (including the
50. Eisner's reference to "the war bride" is not entirely clear, but probably refers to purchasers of
"war bride stocks." A "war bride" company was able to earn substantial profits by selling munitions and
other wartime materiel. See BANK ET AL., supra note 12, at 55. Alternatively, Eisner could be referring to
men who attempted to avoid or delay the draft by getting married. See Dusabek v. Martz, 249 P. J45, 146
(Okla. 1926) (a libel case involving the statement, among others, that "we were not biding behind the folds
of a woman'sgarments[,J" a reference to the Selective Service Actofl917, 40 Stat. 76, under which married
men might be drafted after single men or exempted for hardship due to dependent family members).
51. The tenn "tombs" refers to an old, well known New York City prison located in Manhattan.
JosephP. Viteritti, Tombs, inTHEENCYCLOPEDIAOFNEWYORKCITY 1190(KennethT. Jacksoned., 1995).
Its name was "inspired by a photograph of an Egyptian tomb that appeared in a book on the Middle East
written by Jolm L Stephens in 1837." !d.
52. Sees Inequalities in Income Tax Bill, supra note 49.
2010] WRIT OF NE EXEAT REPUBLICA 115
specific reference toNER) has remained substantially the same for the last 90
years.
53
V. NER AS APPLIED IN FEDERAL TAX CASES
A. Introduction
As discussed below, the first reported tax case involving the writ

of NER was issued in 1964-some 45 'years after NER was first included in
a federal tax statute.
54
Since then, the few reported federal tax decisions
mentioning the writ of NER have tended to falrinto one of three categories:
(I) cases in which the court refused to issue the writ of NER, (2) cases in
which the sometimes outrageous actions of taxpayers led to the issuance of a
writ of NER, and (3) other cases where the propriety of NER was not the
centerpiece of the courts' decision, but was referenced in the context of other
tax issues."
B. Principal Cases Where the Request for a Writ of NER Was Refused
1. United States v. Robbins"
Robbins, the first reported decision involving the use of the writ ofNER
in a federal tax case, was an action to establish federal income tax liabilities
and to foreclose tax liens." In its complaint, the Govermnent asserted that the
taxpayer and his wife owed $434,142.99 in taxes, penalties and interest. 58
53. Subsequent versions of section 1318 of the Revenue Act of 1918 have appeared in the following
legislation: Revenue Act of 1928, ch. 852, 617, 45 Stat. 791, 877-78; Revenue Act of 1926, ch. 27,
1122, 44 Stat. 9, 121; Revenue Act of 1924, ch. 234, 1025, 43 Stat. 253, 348; Revenue Act of 1921, ch.
136, 1310, 42 Stat. 227, 310-11. With the enactment of the Code in 1939, the same basic jurisdictional
provision, including the reference toNER, appeared as 3800, and was entitled "Jurisdiction of District
Courts to Issue Orders, Processes and Judgments." I.R.C. 3800 (1939). In both the 1954 and 1986 versions
of the Code, the same provision appeared as 7402, under the slightly different title, "Jurisdiction ofDistrict
Courts." See I.R.C. 7402; id. 7402 (1954).
54. See United States v. Robbins, 235 F. Supp. 353 (B.D. Ark 1964).
55. The relatively few reported tax decisions involving requests for writs ofNER are
They are discussed in detail in this Article for two reasons: (a) to demonstrate past circumstances where the
Government has deemed it necessary to apply for such writs and (b) to provide benchmarks against which
the strengths or weaknesses of future requests for writs ofNER may be measured.
56. 235 F. Supp. 353.
57. !d. at 354.
58. !d.
116 PIITSBURGH TAX REVIEW [Vol. 7:103
At the time the suit was commenced, the taxpayer could not be served
because he was in Mexico." After returning to the United States, however, he
was placed under surveillance and, shortly thereafter, the Government filed an
ex parte application for a writ of NER.
60
In support of its application, the
Government alleged that "Robbins was in the course of liquidating all of his
assets in the United States and of transferring those assets or their proceeds to
Mexico, and that unless the writ should issue Robbins would leave the United
States thus defeating or seriously jeopardizing the enforcement and collection
of the Government's tax liens."
61
. P'
The court initially issued the writ, requmfig .'the taxpayer to post a
$200,000 bond, or "to commit [him] to jail in default of such bail."
62
Unable
to post the bond, the taxpayer was arrested and taken into custody by U.S.
Marshals.
63
Several hours later, the taxpayer was brought before the court,
which released him on his owu recognizance pending a hearing set for the next
day.
64
Following the hearing, the court issued an order vacating the writ, for
the reasons discussed below.
To begin with, the court found that there were two requirements for the
issuance of the writ at common law: "(1) a threatened departure of the
defendant from the jurisdiction; and (2) a resulting defeat of the court's power
to give effective in personam relief due to its loss of control over the
defendant's person."" While noting that 7402(a) "does not spell out the
terms and conditions on and under which the writ is to be issued,"
66
the court
observed that "the writ is to be issued in a tax case only in circumstances
which would render the issuance proper in some other type of suit in equity."
67
Procedurally, the court noted that the ex parte issuance of a writ ofNER
was proper upon a showing of probable cause, but the court cautioned that "the
defendant is entitled to a full and speedy hearing, and a failure to accord such
a hearing amounts to a denial of liberty without due process of law."
68
The
court added that the burden of establishing that the writ should continue in
59. !d.
60. !d.
61. !d.
62. !d.
63. Id. at 355.
64. !d.
65. !d. at 356.
66. Jd. at 356-57.
67. ld. at 357.
68. !d.
2010] WRIT OF NE EXEAT REPUBLICA 117
force is squarely on the Government." The Government, however, failed to
meet its burden. First, the court noted that "it does not appear from the
evidence that [the taxpayer] has any permanent or semi-permanent residence
there [in Mexico], or that his sojourns south of the border have been for the
purpose of tax evasion or to evade the jurisdiction or process of the courts of
the United States."
70
To the contrary, the court found that the taxpayer had
visited Mexico for health reasons.'' Second, the taxpayer testified that his
home was in California, that he intended to stay in the United States, and that
he planned "to actively contest the Government's $\x claims to the end of the
litigation."
72
:::. ~ ; "
The court also found that the Government had failed to produce any
evidence, direct or circumstantial, which would impel it "to disbelieve
Robbins," at least during that early stage of the proceedings.
73
It added,
however, that, "even if it be assumed that Robbins is about to leave the
country, the Court is not able to find from the evidence that such departure on
his part would substantially prejudice the Government in the collection of its
taxes, penalties and interest, assuming that the Government's claims are
just."74
While there was evidence that a corporation controlled by the taxpayer
had conveyed certain California real estate to a citizen of Mexico, and that
another corporation he controlled sold a 95-foot yacht to the same individual,''
there was still "no substantial evidence" that the taxpayer had been
"transferring assets or the proceeds of assets from the United States to Mexico
for the purpose of escaping the claims of the Government, and he denie[ d] that
he ha[d] done so."
76
As the court noted, the real estate was immovable and, if
it had been fraudulently transferred, there were other legal means to set aside
the conveyance.
77
Furthermore, the yacht sold was an old one and its sales
price ($40,000), when compared to the size of the alleged tax deficiencies,
made the sale immaterial from a tax collection standpoint."
69. ld.
70. ld.
71. ld.
72. [d.
73. ld.
74. ld.
75. ld. at 357-58.
76. ld. at 357.
77. ld. at 357-58.
78. ld. at 358.
118 PITTSBURGH TAX REVIEW [Vol. 7:103
2. United States v. Shaheen
79
In Shaheen, the Court of Appeals for the Seventh Circuit reviewed a
district court order denying the taxpayer's motion to quash a writ of NER,
which had been issued iu connection with efforts to collect tax deficiencies of
$452,534.89.
80
The court of appeals had jurisdiction to consider the matter
(i.e., an appeal of an interlocutory order) since a writ ofNER is in the nature
of an injunction."
Prior to the issuance ofthe writ, the taxp!lyer h'!l! 1Jeei)\under investigation
by the Service with respect to the 1966 and 1967 tax years.
82
During the
investigation, the taxpayer sold his home in Maryland for $190,000 and, about
two weeks later, shipped his family's household goods to England, in the name
of a third party." Shortly thereafter, the taxpayer and his family traveled by air
from Boston to London.
84
Upon learning about the taxpayer's departure, the Service moved quickly
to make two sizeable jeopardy assessments, but was only able to collect
$4,139.28.
85
Other attempts to collect were even less productive. The
taxpayer's attorneys, who held certain assets in trust for him, refused to
surrender the trust's assets;" and attempts to leyy the taxpayer's household
effects while they were on the high seas in transit to England yielded nothing,
since the taxpayer's son-in-law was able to recover the goods in an action
brought in the English courts.
87
Later, the taxpayer returned to the United States to attend a bail hearing
in Illinois, where he was charged with a criminal violation." Upon learning
this, the Service concluded that the taxpayer "would depart quickly from the
United States if not restrained, and that if [he] were allowed to depart, the tax
claims against him would be wholly lost."" Consequently, the Service applied
for and obtained a writ ofNER, which was issued ex parte.
90
On the following
79. 445 F.2d 6 (7th Cir. 1971).
80. !d. at 7.
81. !d.
82. !d. at 8.
83. !d.
84. !d.
85. !d.
86. !d.
87. !d.
88. !d.
89. !d.
90. !d.
2010) WRlT OF NE EXEAT REPUBLICA 119
day, the taxpayer's attorneys presented an oral motion to the district court to
quash the writ, which was denied."
In considering the denial of the motion to quash, the court of appeals
noted that the taxpayer's evidence did not contradict the Service's description
of the sale of his residence, the shipment of his household goods to England,
or his creation and use of trusts:
He frankly confirmed his intention to depart the States as soon as he could. He
had been residing in Rome for about four months a desire to rejoin his
wife and minor children promptly. M-oreovJY;:a'ccording to his testimony, adverse
publicity related to financial difficulties of a business associate and to his own indictment
on a charge uncmmected with the tax matters has made it impossible for him to realize
earnings in the United States as a financial consultant. He exPressed optimism, however,
with regard to his earnings potential in Europe.
He denied that he would never return to the United States if permitted to leave. His
three oldest children reside in thiS country. He has voluntarily returned for court
appearances in the criminal case. He testified that except for about $3,000 that he drew
from a company in Italy, all of his assets are in the United States.
92
While expressing skepticism about the accuracy of the taxpayer's
testimony concerning assets in other countries,9
3
the court of appeals reversed
the order denying the motion to quash, pointing out that the "right to travel is
'a constitutional liberty closely related to rights of free speech and
association. "'
94
It also cited procedural and substantive problems with the
issuance of the writ ofNER."
First, the court of appeals noted that the district court failed to prepare
findings of fact and conclusions of law in connection with the order granting
the writ.
96
In addition, there were "critical weaknesses in the Government's
case" including its failure to "prov[ e ], in an evidentiary hearing, after due
notice has been given, its right to have the restraint continue in effect. "
97
Finally, the Government failed to establish that the taxpayer's departure would
frustrate the collection of the taxes due:
91. Id. at 8-9.
92. Id. at 9.
93. [d.
94. ld at 10 (quoting Aptheker v. Sec'y of State, 378 U.S. 500, 517 (1964) (fmding that a provision
of the Subversive Activities Control Act of 1950, forbidding the issuance of a passport to a member of the
Communist Party, "swe[pt] too widely and too indiscriminately across the liberty guaranteed in the Fifth
Amendment")).
95. Id.
96. Id.
97. [d.
120 PITTSBURGH TAX REVIEW [Vol. 7:103
Here there is no evidence that the taxpayer is in the process of transferring assets
abroad, or that he will take any property with him if he is permitted to depart. The
transfers identified in the record took place prior to the jeopardy assessments. The
Government's theory is that the taxpayer's presence is required to enable the court
effectively to enforce an order requiring him to repatriate assets now located in Europe.
The record does not contain any motion by the Government seeking such relief.
98
The court further stated, however, that even if the Government had filed a
motion seeking an order concerning repatriation of assets, and assuming that
such assets existed, "other problems such as tij"e interests of third parties or
other sovereigns may be involved.'"? ~
But the most compelling factor may have been the taxpayer's attitude, as
perceived by the court of appeals. Noting that "[t]he writ should not be
employed for any purpose akin to imprisonment for debt,"
100
the court of
appeals found "uo evidence in the record that [the taxpayer] has disobeyed the
law or shown disrespect for any court order or proceediug."
101
In an Action on Decision issued following the Seventh Circuit's decision
in Shaheen,
102
the Service outlined its reasons for declining to seek a writ of
certiorari, noting that "we do not have any additional legal authorities to
present to the Court." The Service further noted, however, "that the Seventh
Circuit's opinion does not prejudice the Government's right to seek another
writ of ne exeat should any future development of facts justifY it."
103
a. Postscript to Shaheen
Several years after the court of appeals' decision to vacate the writ of
NER, the taxpayer filed a petition in the United States Tax Court.
104
Prior to
the filing of the Tax Court case, however, a federal district court had entered
a default judgment against the taxpayer-after he failed to post bond and failed
to appear in a criminal case-finding him liable for taxes for the 1966-1968
tax years, which were the same years at issue in the Tax Court case.
105
Given
that prior default judgment, the Tax Court dismissed the case before it on the
grounds of res judicata, thereby rejecting the taxpayer's argument that he had
98. !d. at II.
99. !d.
tOO. !d.
to!. !d.
t02. A.O.D. 1971-331 (June 12, 1971).
!03. !d.
l04. Shaheen v. Comm'r, 62 T.C. 359, 360 (1974).
105. !d. at 362-<53.
2010] WRIT OF NE EXEAT REPUBLICA 121
a right to have the Tax Court hear his case.
106
The Tax Court also rejected the
taxpayer's curious suggestion that a writ of NER "would adequately protect
the Government's interest" during the pendency of the case.
107
C. Principal Cases Where the Request for a Writ ofNER Was Granted
I. The Clough Cases
No less than three cases arose out of an investigation of the alleged tax
liabilities of William Clough, an airline navigator and investor, for the
1965-1971 tax years.
108
a. Clough I
In the first of the three cases, the district court denied the taxpayer's
motion to quash a writ ofNER.
109
In doing so, the court issued findings of fact
and conclusions oflaw, noting that the taxpayer had transferred cash to foreign
bank accounts, abandoned his United States residence, had been indicted on
ten counts of tax evasion, pled guilty to filing a false and fraudulent tax return
for the 1971 tax year and, on at least one occasion, was found carrying dual
identification papers.
110
b. Clough II
The second of the three cases was an action to recover a judgment on
assessed taxes, penalties, interest, and lien feesl" While the district court's
opinion repeated some of the basic facts described in its first opinion (Clough
I), it also provided some new facts and comments concerning the propriety of
the issuance of the writ of NER.
112
For example, the court in Clough II
106. ld. at 364.
I 07. I d. at 362.
108. United States v. Clough (Clough 1), 74-1 U.S.T.C. ~ 9277, 33 A. F. T.R.2d 650 (N.D. Call974);
United States v. Clough (Clough ll), 77-2 U.S.T.C. ~ 9 5 2 3 40 A.F.T.R.2d 5158 (N.D. Cal. 1977); Clough
v. Comm'r (Clough II[), 35 T.C.M. (CCH) 695, 1976 T.C.M. (P-H) 1{ 76,155. Each is discussed in the text
below.
109. Clough I, 74-1 U.S.T.C. ~ 9277, at 83,579,33 A.F.T.R.2d at 651.
110. Jd. at 83,579-81,33 A.F.T.R.2d at 651-52.
111. Clough ll, 77-2 U.S.T.C. ~ 9523, at 87,723,40 A.F.T.R.2d at 5158.
112. ld. at 87,723-24,40 A.F.T.R.2d at 5158-59.
122 PITISBURGH TAX REVIEW [Vol. 7:103
described in greater detail the background facts revealed by the Service's
investigation of the taxpayer:
[H]e began to transfer his assets from bank accounts in California (which were in false
names as well as his own name) to financial institutions in the Bahamas, England,
Canada, and Mexico. He also began to liquidate his real estate holdings (which, again,
were in false names as well as his own name) and transferred the proceeds to foreign
bank accounts.
113
Next, the court described a series of court prO'Ceedfugs and other events
that took place within a relatively short time, both before and after the issuance
of the writ ofNER, as follows:
September 19, 1973: The taxpayer was indicted and charged with ten
counts oftax vio1ationsY
4
m October 1973: The taxpayer pleaded guilty to one count of income tax
evasion and, the day after being released on bail, the Service made
jeopardy assessments for "a total liability of $216,937.35, with interest
running at $35.50 per day."
115
November 26, 1973: While the taxpayer was on bail (pending
sentencing), he purchased airline tickets for himself and his family for a
trip to London via Rome, using a forged letter signed by a purported
Braniff International official. "
6
November 27, 1973: The taxpayer was served with a civil summons and
complaint for the recovery of taxes allegedly due for the 1965 through
1971 tax years.
117
a November 28, 1973: The Service requested and obtained a writ of
NER.'"
January 1974: After the taxpayer was served with a writ ofNER and
taken into custody, he filed a motion to quash the writ, which was denied;
however, the court modified the terms of confinement, permitting the
taxpayer's transfer to a low-security prison in Oakland, California.
119
The
taxpayer then filed a notice of appeal, but before it could be heard, he
escaped custody and moved to Canada, in violation of the writ ofNER.
120
113. Id., 40 A.F.T.R.2d at 5158.
114. !d. at 87,724,40 A.F.T.R.2d at 5159.
115. ld., 40 A.F.T.R.2d at 5159.
116. Id, 40 A.F.T.R.2d at 5159.
117. Id,40A.F.T.R.2dat5159.
118. Id., 40 A.F.T.R.2d at 5159.
119. Id., 40 A.F.T.R.2d at 5159.
120. Id., 40 A.F.T.R.2d at 5159.
2010] WRIT OF NE EXEAT REPUBLICA 123
After recounting the facts, the court in Clough II entered a judgment in
favor of the United States in the amount of $262,412.90.
121
The conrt also
reaffirmed the fmdings of fact and conclusions oflaw in Clough I, in which
the taxpayer's motion to quash the writ of NER was denied,
122
and took the
opportunity to describe the reasons justifYing that ruling:
The writ of ne exeat republica is essential and proper when, in a suit requiring
equitable jurisdiction, the plaintiff establishes that the defendant designs quickly to
depart the United States, there is an amount of nature certain or capable of
being made certain and is present!y'payablg'fo"the plaintiff, and that the defendant has
sufficient foreign assets but insufficient domestic assets to pay the just claim of the
plaintiff. The function of a writ of ne exeat republica is to afford the court a means of
retaining equitable jurisdiction over the defendant, asSuring that the defendant will
remain within the jurisdiction cif the court.
123
c. Clough III
The last of the three opinions was issued by the Tax Court, while a
contempt order for the taxpayer's arrest was still outstanding.
124
The question
before the Tax Court was whether prior assessments of tax against the taxpayer
(i.e., some of the same assessments which resulted in the issuance of the writ
of NER) were incapable of being collected because of allegedly
unconstitutional searches conducted by the Service when investigating him."'
After examining the circumstances, and noting that the taxpayer had
conceded that the amounts assessed were correct, the Tax Court held that the
propriety of the searches had already been upheld (Clough I) and,
consequently, ruled in favor of the Government.'"
2. United States v. Lipper'"
It is difficult to find a case with more evidence of"attitude" than Lipper,
where one of the key questions considered by the court was whether the
Government's application for a writ ofNER was proper.
128
121. ld. at 87,725-26,40 A.F.T.R.2d at 5159-61.
122. Id. at 87,724,40 A.F.T.R.2d at 5159.
123. Id at 87,725-26,40 A.F.T.R.2d at 5160 (citations omitted).
124. Clough v. Comm'r (Clough Ill), 35 T.C.M. (CCH) 695,695, 1976 T.C.M. (PH) 76,155, at
684.
125. ld., 1976 T.C.M. (PH) at 684.
126. ld. at 696-97, 1976 T.C.M. (P-H) at 685-86.
127. 8).) U.S.T.C. 9330, 47 A.F.T.R.2d 1289 (N.D. Cal. 1981).
128. Id. at 86,880, 47 A.F.T.R.2d at 1289.
124 PmSBURGH TAX REVIEW [Vol. 7:103
In February 1981, the United States filed a petition with the district court
requesting an order to show cause why the taxpayer should not be compelled
to comply, with a summons for information needed to determine his tax
liabilities for the years 1976 through 1979.
129
After the order was granted, the
Service made numerous attempts to serve the order, but the taxpayer refused
to answer his door, refused to answer the phone, and refused to respond to mail
inquiries regarding the matter.
130
In March 1981, the Service received information iJlat, within the two prior
months, the taxpayer had sold two real estate (his only remaining
assets in the United States) for about $900,000.
131
The Service also received
information that the taxpayer was liquidating all of his fumitnre and personal
assets and was in possession of $350,000 in cash.
132
According to the court,
"(t]he United States was told that the purpose for this activity was that
Mr. Lipper planned to depart quickly from the United States and intended to
permanently reside in France."
133
Shortly thereafter, an IRS special agent, accompanied by a revenue agent
and other officials, attempted to meet with the taxpayer at his residence but
were told through an intercom by an unidentified "workman," who would not
come to the door, that the taxpayer had "permanently left" the property a few
days earlier.
134
At that point, the agents made inquiries with the taxpayer's
neighbors, who provided them with information indicating that "Lipper had
been selling and/or giving away all of his personal assets."
135
The agents then retnmed to the taxpayer's residence and watched two
individuals through the glass portion of an alternative entrance to his
apartment.
136
Eventnally, a man who matched the taxpayer's appearance carne
to the door. He identified himself as a workman named "Terry" (which was a
known alias for the taxpayer), at which point he was served with the order to
show cause.
137
"Terry" then admitted he was the taxpayer and "stated that he was leaving
the country and would not be available on April6, 1981 [the date of the show
129. Id., 47 A.F.T.R.2d at 1290.
130. ld., 47 A.F.T.R.2d at 1290.
131. !d., 47 A.F.T.R2d at 1290.
132. /d., 47 A.F.T.R.2d at 1290.
133. Id., 47 A.F.T.R.2d at 1290.
134. Id. at 86,880-81,47 A.F.T.R.2d at 1290.
135. Id. at 86,881,47 A.F.T.R.2d at 1290.
136. ld., 47 A.F.T.R.2d at 1290.
137. !d., 47 A.F.T.R.2d at 1290.
2010] WRIT OF NE EXEAT REPUBLICA 125
cause hearing], nor would he return to the United States."
138
The taxpayer
"then described the Court Order and the Internal Revenue Service with a
number of obscenities and further stated he had not filed tax returns since
1969."
139
Upon returning to their offices, the agents verified certain real estate sales
by the taxpayer and, on the basis of that information, made a termination
assessment against him, in the amount of$183,315 for the period January 1,
1981 through March 19, 1981.
140
_To p r e s ~ p e its ability to collect, the
Government also requested and obtame&1m emergency wnt of entry.
141
At the time that the writ of entry was executed, the agents "discovered
suitcases and a trunk packed with what appeared to be substantially all of the
clothes in the apartment. In addition, closely adjacent to or within the
suitcases, the agents found a road map of France, several French/English
dictionaries and 6 blank visa applications to enter France."
142
The agents also
located other evidence of the taxpayer's imminent departure, including an
answering machine with a message stating "[g]ood luck on your trip to
France."
143
Later, the taxpayer "admitted he was liquidating all his personal assets so
he could 'live in France in style. "'
144
He also made a phone call (in the
presence of an IRS special agent) and was overhead stating that "the IRS is
hassling me but it doesn't make any difference because I'll get away
anyway."
145
On another occasion, the taxpayer told a revenue officer that, "not
only was he leaving for France but he also intended to stay there permanently
and had organized a business there."
146
Approval to seek a writ ofNER was obtained from the Tax Division of
the United States Department of Justice, at which point the government made
an ex parte application to the court to seek the writ ofNER.
147
The court issued
a temporary writ of NER on March 20, 1981 and set another hearing on the
matter for March 23, 1981.
148
138. /d., 47 A.F.T.R.2d at 1290.
139. Id, 47 A.F.T.R.2dat 1290.
140. !d., 47 A.F.T.R.Zd at 1290-91.
141. /d., 47 A.F.T.R.2d at 1291.
142. /d., 47 A.F.T.R.2d at 1291.
143. /d.; 47 A.F.T.R.2d at 1291.
144. /d., 47 A.F.T.R.2d at 1291.
145. /d., 47 A.F.T.R.Zd at 1291.
146. /d. at 86,882,47 A.F.T.R.2d at 1291.
147. !d. at 86,881,47 A.F.T.R.2d at 1291.
148. ld at 86,882, 47 A.F.T.R.2d at 1291-92.
126 PITTSBURGH TAX REVIEW [Vol. 7:103
At the hearing, the court received substantial evidence concerning missing
tax returns, for numerous years, as well as evidence of proceeds from the
taxpayer's real estate sales.
149
It also reviewed the propriety of jeopardy
assessments against the taxpayer, which were based on the recent sales of just
two of nine real estate properties he made during the periods at issue."
0
With respect to the legitimacy of the government's tax claim and the
request for a writ of NER, the conrt found that it was "not an unreasonable
restraint upon [the taxpayer] to remain in the jurisdiction of the Northern
District of California for a reasonable perioq of tiJBll :witiiln which he and the
Internal Revenue Service can ascertain his'dvil u;k liabilities for the years
1969 through 1981."
151
However, it admonished the government (as opposed
to the taxpayer!) about the importance of completing its work in an expeditious
fashion:
The United States and the Internal Revenue Service are on notice that any unnecessary
delays in the resolution of Mr. Lipper's tax liabilities are unacceptable. The issuance of
the instant Writ is made only because of the highly unusual facts of this case and the high
probability ofMr. Lipper's expatriation from the United States. While the Court is aware
that it may take time to unravel Mr. Lipper's complicated financial transactions which
have occurred since 1969, absent a showing of good cause by the Government, the Court
fuily expects this matter to be resolved within 120 days after the filing of these findings
of fact and conclusions of law.
152
This almost apologetic reasoning, offered to temper the decision to issue
the writ, was likely due to the court's recognition of the constitutional
implications of the writ ofNER on the right to travel.
153
As the conrt noted, the
"[f]reedom to travel is a right of constitutional dimension."
154
3. United States v. Mathewson
155
In Mathewson, the conrt considered motions to quash a writ of NER
which had been served on a taxpayer with a long history of failing to file
149. !d. at 86,882-83, 47 A.F.T.R.2d at 1292.
150. !d. at 86,883, 47 A.F.T.R.2d at 1292.
151. !d., 47 A.F.T.R.2d at 1293.
152. !d. at 86,884, 47 A.F.T.R.2d at 1293.
153. !d., 47 A.F.T.R.2d at 1294.
154. !d., 47 A.F.T.R.2d at 1294.
155. 93-1 U.S.T.C. 50,152,71 A.F.T.R.2d 1453 (S.D. Fla. 1993).
2010] WRIT OF NE EXEAT REPUBLICA 127
income tax retums.
156
Based on prior Tax Court decisions, involving tax years
in the early to mid-1980s, the taxpayer owed more than $5 million.
157
In late 1984, the taxpayer began to reside continuously in the Cayman
Islands, where he was the chairman of a bank and trust company.
158
He had
also "liquidated the last of his assets remaining in the country and transferred
the funds overseas."
159
The court observed that the propriety of the writ depended upon whether
the government could establish the sa.me baJl; that would be required
to support a request for injunctive relief: (!) a substantial likelihood that it
would succeed on the merits, (2) irreparable injury if the writ were not issued,
(3) potential injury to the government that would outWeigh the potential harm
to the taxpayer, and (4) the writ would not disserve the public interest.
160
Finding the foregoing factors were present, the court denied the taxpayer's
motions to quash.
161
Thus, the taxpayer was required to comply with the
conditions of the writ of NER, including a $1 million bond, electronic
monitoring, and confinement at his residence in Miami.
162
The taxpayer was
also forced to surrender his passport, and any pilot's license he may have
possessed, to Pretrial Services.
16
'
The arrest, confinement and restrictions on the taxpayer's travel, all
imposed in a civil setting, required a difficult "balancing of equities":
For a civil action, the restraint on the freedom to travel is an extreme measure. To
minimize the punitive aspects of this civil remedy, the Court will modify the Writ to
keep Mr. Mathewson in house arrest, so long as he posts a proper bond. This will allow
Mr. Mathewson to enjoy at least some of the comfort his homeland offers, while
preserving the ability of the United States to litigate this action.
164
D. Other Federal Tax Cases Referencing the Writ ofNER
Unlike the cases discussed above, which squarely addressed whether or
not the issuance of writs ofNER was proper, most of the other relatively few
156. Id at 87,543,71 A.F.T.R.2d at 1453.
157. Id, 71 A.F.T.R.2d at 1453.
158. ld, 71 A.F.T.R.2d at 1454.
159. Id, 71 A.F.T.R.2d at 1454.
160. Id., 71 A.F.T.R.2d at 1454.
161. Id. at 87,543-44,71 A.F.T.R.2d 1454-55.
162. Id at 87,544 (order setting bond; the order setting bond is not included in the opinion reported
at 71 A.F.T.R.2d 1453).
163. ld.
164. ld at 87,544,71 A.F.T.R.2d at 1454.
128 PITISBURGH TAX REVIEW [Vol. 7:103
reported federal tax cases that include the term NER do little more than
mention it, usually as part of a citation to 7402, prior to discussing some
other totally unrelated tax issue. The following cases fall somewhere in the
middle, raising questions or issues about aspects of writs ofNER, but failing
to explore them.
1. Overlapping Travel Restrictions
In United States v. Maryans, the Government applied for a writ ofNER,
despite the fact that the taxpayer was already under travel restrictions arising
out of a criminal tax case.
165
Noting thatthe terms of the taxpayer's criminal
probation already forbade him to leave the country, the court, over the
government's objection, vacated a portion of the writ ofNER, and directed
that the taxpayer be released from custody.
166
However, the court maintained
the writ's restrictions forbidding the taxpayer from leaving the country,
pending another hearing.'
67
After finding the taxpayer incompetent, the court appointed a guardian ad
litem to represent his interests and indicated that a full hearing on the request
for the writ of NER would be rescheduled.'
68
The court's opinion did not
explain why a double layer of travel restrictions was necessary; nor did it
address the general principle that "[t]he writ will not issue against a defendant
who is under arrest or held to bail in an action at law."
169
2. NER Bonds as a Collection Source
In United States v. Mathewson, the taxpayer delivered a cashier's check
for $100,000 in compliance with a personal surety bond under a modified writ
of NER.
170
Ultimately, the writ was dissolved and, the following day, the
Service delivered a notice of levy to the clerk of court, seeking to obtain the
funds deposited pursuant to the writ ofNER.
171
165. 803 F. Supp. 1378, 1378-79 (N.D. Ind. 1992).
166. Id. at 1379.
167. Id.
168. Id.
169. 1 ROGER FOSTER, A TREATISE ON FEDERAL PRACTICE IN CML CAUSES WITH SPECIAL
REFERENCE TO PATENT CASES AND FORECLOSURE OF RAILWAY MORTGAGES 262 (1892).
170. 839 F. Supp. 857,857 (S.D. Fla. 1993). The decision to issue the writ ofNER against the
taxpayer is discussed in United States v. Mathewson, 9 3 ~ U.S.T.C., 50,152, 71 A.F.T.R.2d 1453. See
discussion supra Part V.C.3.
171. Mathewson, 839 F. Supp. at 857-58.
2010] WRIT OF NE EXEAT REPUBLICA 129
The taxpayer moved for dissolution of the lien and the return ofthe funds,
presenting evidence that the funds had been advanced to him by someone else
and, consequently, that the money was not his.
172
The court rejected those
arguments, denied the taxpayer's motion, and ordered the clerk of court to
surrender any funds held on behalf of the taxpayer to the Service.
173
Could this sequence of events (standing alone) suggest that the writ of
NER had been used to coerce the payment of tax by means of threats of
imprisonment? While the Service has indicated that such collection efforts are
improper with a writ of NER,
174
the court did not address the issue in its
opinion.
E. NER as Interpreted and Applied by the Service
The best description of the Service's view of the use and purposes of the
writ of NER is found in a 1990 Litigation Guideline Memorandum (the
"LGM").
175
The LGM begins by defining the writ as "a court order which
generally commands a marshal to commit to jail a defendant who fails to post
bail or other security in a specified amount,"
176
adding that its purpose in tax
cases is "to prevent taxpayers from defeating the collection of tax liabilities by
removing themselves and their assets from the territorial jurisdiction of the
United States."
177
The LGM acknowledges, however, that the writ is "an
extraordinary remedy and should only be considered when all other
administrative and judicial remedies would be ineffective."'"
The LGM lists five basic criteria that courts have considered in deciding
whether to issue writs ofNER: (I) the existence of a sizeable, outstanding tax
liability; (2) evidence of transfers outside of the United States of substantially
all of a taxpayer's assets; (3) whether the taxpayer has foreign residence, or
intends to permanently establish a foreign residence; ( 4) the likelihood that the
government will prevail on the merits with respect to the underlying liabilities;
172. Id. at 858.
173. !d. i
174. See discussion infra Part V .E. (explaining the Service's position that writs ofNER are intended
as a means to require the taxpayer to submit to the jurisdiction of the court).
175. Litig.GuidelineMem. GL-7, 1990WL 1086225 (Apr.17, 1990). The document, about six pages
long, is not paginated. References to page numbers herein correspond to a standard, printed version of the
document from Westlaw.
176. /d. at!.
177. ld.
178. ld.
130 PIITSBURGH TAX REV1EW [Vol. 7:103
and (5) whether the taxpayer's assets are "reachable for collection absent the
issuance of the writ."
179
The LGM also describes several other important considerations
concerning the issuance of writs ofNER, including the following:
The Nature and Existence of the Underlying Tax Obligation:
The debt relied on to support the writ must be enforceable against the defendant, be of
a pecuniary nature and be presently payable. Thus, in tax cases, an assessment should be
outstanding against the taxpayer.
180
Bare Reliance on Jeopardy Assessments Is Inadequate:
Although the jeopardy provisions of 6851, 6861, and 6862 may be used to provide the
assessment which forms the basis of the Government's ex parte claim for the issuance
of a writ ne exeat, the Goyemment has the burden of establishing in an adversarial
hearing, its right to have the restraint continue.
181
Anticipating the "Debtor's Prison" Argument by Taxpayers:
One defense that the taxpayer may raise is that the use of the writ ne exeat is an attempt
to coerce the taxpayer to pay through the use of imprisonment. If the defense is made,
the Government should argue that imprisonment is only used in the event that suitable
security is not provided by the taxpayer and only as a means to require the taxpayer to
submit to the court's authority and jurisdiction.
182
Other internal pronouncements by the Service concerning writs of NER
are consistent with the observations in the LGM, and illustrative of the caution
exercised before pursuing such writs. In two field service advisories, for
example, the following identical language appears as part of a discussion
outlining circumstances where a writ of NER cannot be requested by the
Service:
A writ ne exeat republica cannot be used to detain a person in order to force him to
reVeal information. Additionally, the Department of Justice requires that the IRS be able
to show in detail that a taxpayer has transferred assets out [of] the United States in order
to avoid the paymeij,t of taxes. In this case, the IRS does not have evidence to substantiate
I
179.Idat2.
180. !d. at l.
181. I d. at 3 (citations omitted).
182. !d. at 4.
2010] WRIT OF NE EXEAT REPUBLICA 131
that the taxpayers have assets that were transferred out of the United States in order to
avoid paying their taxes.
183
Other field service advisories echo similar concerns, particularly with
respect to the prospects of obtaining a writ of NER where difficulties are
anticipated in establishing and defending the validity and accuracy of the
underlying assessments:
If the United States obtains a temporary writ of ne exeat against a taxpayer through ex
parte representations made to a U.S. district court, the Service will be immediately
required at an adversarial hearing in district court to bear the burden of proving, inter
alia, that the Service will meet probable success on the merits of its tax claims and other
matters at issue in its pending (or soon to be brought) collection suit, in order to keep the
extraordinary writ ne exeat in effect. In the present case, the Service would apparently
be unable to defend the merits of its assessments against * * *at an immediate district
court hearing ....
184
In the event that a writ of NER is pursued, the Internal Revenue Manual
requires coordination among specific branches within the Service.
185
In
addition, "immediate contact" with the Department of Justice is also
required.
186
183. I.R.S. Field Service Advisory, 1998 WL 1757127 (Nov. 20, 1998); I.R.S. Field Service Advisory,
1992 WL 1355594 (Mar. 16, 1992).
184. I.R.S. Field Service Advisory, 1992 WL 1355595 (1992). See also I.R.S. Field Service Advisory,
1993 WL 1469755 (1993), and I.R.S. Field Service Advisory, 1998 WL 1757126 (Nov. 20, 1998), both of
which contain the following identical language:
[W)e do not believe that a writ ne exeat republica is available based on the facts in the instant case.
This is because it ma'tbe difficult to defend the merits of the s s e s s ~ e n t against * * * and because
there is no evidence that * * * t currently possesses assets in * * * that could be used to pay the
assessments or removed assets from the United States in order to defeat collection.
185. See I.R.M. 34.6.1.2.4(4), providing that the Office of the Associate Chief Counsel (International),
Branch 1, must be contacted "where the taxpayer is an alien or nonresident citizen who has resided in a
foreign jurisdiction for a period oftime"; and further providing that coordination with Office of the Assistant
Chief Counsel (Collection, Bankruptcy & Summonses), Branch 3, is required for longtime United States
citizens.
186. Litig. Guideline Mem. GL-7, supra note 175, at4.
132 PITISBURGH TAX REVIEW [Vol. 7:103
VI. HISTORICAL USES OF NER & How THEY COMPARE TO THE MODERN
USE OF NER IN TAX CASES
A. English Origins: The Writ ofNe Exeat Regno
The first American edition of one of the leading treatises on the subject
ofne exeat regno, the English predecessor toNER, was published in 1821.
187
It was written by John Beames, a Barrister at Law from London, and included
summaries of English and American decisions on the subject, compiled by
Henry Whiting Warner, an attorney from New York.
At the outset of the treatise, Beames observed that the writ of ne exeat
regno was "unknown to the ancient Common law, which in the freedom of its
spirit, allowed every man to depart the Realm at his own pleasure. "
188
While
recognizing the difficulty in pinpointing the date of its first use in England,
189
Beames noted that a form of the writ was used in the 11 00s, during the reign
of Henry II (1154-1189),
190
for political purposes; namely, restraining
clergymen from travel, by making "it unlawful for them to quit the Realm
without the King's License."
191
That pronouncement of a royal prerogative,
192
as it was originally conceived, was therefore designed to curtail the dealings
of the Clergy in England from relations with the Papal See.
193
Several "different fluctuations" of the writ of ne exeat regno developed."'
During the reign of Richard II (1377-1399),
195
for example, the writ was used
to forbid "all persons whatever to go abroad, 'excepting only the Lords and
other Great Men of the Realm, and true and notable merchants, and the King's
soldiers."'
196
Those uses of the writ were difficult to square with the 1215
Magna Carta of King John,
197
which deprived the King of the right to prevent
187. JO:HNBEAMES&H.W. W ARNER,ABRIEFVfEWOFTHE WRIT NEEXEATREGNO, WITH PRACTICAL
REMARKS UPON IT AS AN EQUITABLE PROCESS (1821 ).
188. !d. ch. I, at 1.
!89. !d. at l-2.
190. ld; BLACK'S LAW DICTIONARY 1795 app. G (8th ed. 2004) [hereinafter Table of British Regnal
Years]. ~ _
191. BEAMES & VfARNER, supra note 187, ch. I, at 2.
192. A "prerogative" is [a]h exclusive right, power, privilege, or immunity, usu. acquired by virtue
of office." BLACK'S LAW DIC110NARY 1220 (8th ed. 2004).
193. BEAMEs&WARNER. supra note 187, ch. I, at2.
!94. !d. at 6-ll.
195. Table of British Regnal Years, supra note 190.
196. BEAMES & WARNER. supra note 187, cb. I, at 5-6 (quoting 5 Rich. 2, cb. 2, 6-7 (1381)
(Eng.)).
197. King John reigned from 1199-1216. Table of British Regnal Years, supra note 190. The Magna
2010) WRIT OF NE EXEAT REPUBLICA 133
foreign traveL"' Nevertheless, the evolution of writ of ne exeat regno, from
a political tool to other wider uses, was rooted in its practical efficiency:
[H]ow it has happened that a process, originally adapted to the clerical body alone, and
framed to prevent too strict an intercourse between that body and the Papal See, should,
of all others, be the one in modem times [i.e., !821) selected in order to prevent Debtors
escaping from their Creditors, can be no otherwise accounted for, than by its previously
existing as a prohibitory process, and being found admirably adapted to that end.
199
As Bearnes pointed out, there were no "Statutory regulations" or "Acts of
Parliament" authorizing the use of writs ne exeat regno.
200
Instead, Beames
agreed with Lord Bacon's assessment, that "its force is derived from the
circumstance that it has been 'of long time used. "'
201
In other words, Beames
concluded that, past usage of the writ, without more, justified its continued
use.zoz
B. Historical Review ofNER in Passport Matters
After the publication ofBeames' treatise in 1821, there was little focus in
the United States on the historical origins ofNER until the 1950s. At that time,
the ancient uses of the writ ofNER received renewed attention in cases such
as Briehl v. Dulles, which involved the refusal to issue a passport absent the
execution by the applicant of a "non-Communist affidavit."
203
In Briehl, the court (citing Bearnes) recounted the early political origins
of the writ and the fact that, in 1215, provisions of the Magna Carta had
deprived the right of the King to prevent travel outside the realm.
204
The court
noted, however, that the Magna Carta was subsequently republished, during
Carta is "[t]he English charter that King John granted to the barons in 1215 and that Henry ill and Edward
I later confirmed. It is generally regarded as one of the great commonlaw documents and as the foundation
of constitutional liberties." BLACK'S LAW DICTIONARY 971(8th ed. 2004).
198. BEAMES&WARNER, supra note 187, ch. I, at 2-5.
199. !d. at 10.
200. Id at !7.
20 l. Id Lord Bac.9n refers to Francis Bacon (1561-1626), a lawyer, statesman, and philosopher. THE
ENCYCLOPAEDIA 14 MACROPAEDIA 564--69 (15th ed. 1994). In 1618, Bacon was made
chancellor and baron Verulam. !d. at 565. He authored many notable legal works, including The Elements
of the Common Lawes of England (1630) and The Learned Reading of Sir Francis Bacon, One of Her
Majesties Learned Counsell at Law, upon the Statute of Uses (1642).Jd at 569.
202. BEAMES&WARNER, supra note 187, ch.l, at 17.
203. 248 F.2d 561, 565 (D.C. Cir. 1957) (holding that the State Department was entitled to require
an affidavit from a passport applicant addressing any present or past membership in the Communist Party),
rev'd sub nom., Kent v. Dulles, 357 U.S. 116 (1958).
204. Id. at 561Hi9.
134 PITTSBURGH TAX REVIEW [Vol. 7:103
the reign of Henry III (1216-1272),
205
without those guarantees of freedom of
trave\.
206
While restrictions on traveling outside the realm were eventually
relaxed, some restrictions remained, as described in one of the dissenting
opinions issued in Briehl:
By the year 1382, restraints against clerics and notables were relaxed, but a prohibition
was placed upon unlicensed departure from the realm by the common subjects of the
King. 5 Rich. II, c. 2, 6, 7. In 1607 that prohibition was repealed, 4 James I, c. I, so
that ostensibly freedom of travel was restored, except to persons covered by special
statutes. It is undeniable, however, that the Crown continued to exercise its prerogative
to confine subjects to the realm, at least until about one hundred years before our
Revolution.
207
Similar descriptions of the origins of the writ ofne exeat regno are found
in a number of law review articles from the 1950s, addressing passports and
the right to travel by United States citizens.
208
The law review articles, like
Beames' treatise, describe the original political uses of the writ of ne exeat
regno, its disjointed evolution into an occasional equitable remedy, and its
eventual, general disuse:
A mere semblance of it degenerated, as it were, into an equitable restraint of absconding
debtors. Later [English] authorities mention the writ only in this connection and make
it clear that this is to be regarded as its only lawful use. In other words, the royal
prerogative which had been especially strong under Edward III[
209
] had gradually melted
away in the sun of the Magna Carta theory that an Englishman is free to leave England
ifhe so desires. This has been the law ofEngland to this day [i.e., 1954], ever since about
the year [1640,]150 [years] before our [United States] Constitution.
210
205. Table ofBritis!l Regnal Years, supra note 190.
206. Briehl, 248 F.2d at 568"19.
207. Id. at 592 (Bazelon, J., dissenting) (footnotes omitted).
208. See, e.g., Leonard B. Boudin, The Constitutional Right to Travel, 56 CoLUM.L. REv. 47 (1956);
Reginald Parker, The Right to Go Abroad. To Have and Hold a Passport, 40 VA. L. REv. 853, 867-68
(1954); Note, Passports and Freedom of Travel: The Conflict of a Right and Privilege, 41 GEO. L.J. 63,
65-70 (1952); Commen4 The Passport Puzzle, U. Cm. L. REv. 261,268-69 nn.38-43 (1956).
209. Edward ill reigned from 1327-1377. Table of British Regnal Years, supra note 190.
210. Parker, supra note 208, at 868 (footnote omitted).
2010) WRIT OF NE EXEAT REPUBLICA 135
VII. THE "DISCONNECT" BETWEEN THE HISTORICAL USES OF NER AND
ITS USE IN TAX CASES
A. Introduction
In his 1821 treatise on ne exeat regno, Beames noted that "[t]he use of this
writ has not prevailed extensively in the United States. "
211
He also stated that
"the practice here [in the United States as of 1821] rests upon the same
foundation as in England."
212
However, nothing in Beames' treatise suggests
that the writ of ne exeat regno was ever used by the Crown in the context of
enforcing or collecting taxes; nor do comprehensive accounts of English
taxation.
213
Given the absence of any such discussion, what is the foundation, if there
is one, for the use ofNER in tax cases? The answer, in all probability, is that
there is no such a conclusion that is qualified because, with a
concept like NER, which stretches back more than nine centuries, it is difficult
to prove a negative (i.e., that, in England, NER was never used by the Crown
to collect taxes). Yet one commentator's research, in a 1972law review article,
seems to bear this out, noting that, since the late nineteenth century, the writ
of ne exeat regno has almost never been used (for any purpose) in England:
During the past 100 years the equitable use of the writ has fallen into desuetude. The
reports reveal that the last time the writ was used to restrain the departure of an equitable
debtor from the country was in 1893 .... Since that time there appear to have been only
two attempts [one in 1957 and one in 1969, neither involving tax], both unsuccessful, to
obtain the writ .. ..
214
True, the income tax was instituted at relatively late dates, 1799 in
England and 1861 in the United States.
215
In addition, early income tax
regimes were sometimes intended as temporary revenue raisers, which was
21 L BEM1ES & WARNER, supra note 187, ch. I, at 18 n.2.
212. !d
213. See generally STEPHEN DOWELL &JOHN EDWIN PIPER, THE ACTS RELATING TOTHElNCOMETAX
(5th ed. 1902), and STEPHEN DoWELL, A HISTORY OF TAXATION AND TAXES IN ENGLAND, FROM THE
EARLIEST TIMES TO TIIE PRESENT DAY (3d ed., A.M. Kelley 1965) (1884), which exclude the writ of ne
exeat regno from their discussions.
214. J. W. Bridge, The Case of the Rugby Football Team and the High Prerogative Writ, 88 L.Q. REv.
83, 85 (1972) (foomotes omitted).
215. For a summary of the frrst English income tax, see The Income Tax Act, 1799, 39 Geo. 3, c. 13
(Eng.) and DoWELL & PIPER, supra note 213. at xlv-xlvii. The origins of the income tax in the United States
are discussed supra at Part ID.B.
136 PITISBURGH TAX REVIEW [Vol. 7:103
true with the income tax enacted during the Civil War.
216
Factors such as these
undoubtedly account in part for the absence of reported tax cases addressing
the use ofNER.
But other mainstays of government revenue, such as customs receipts,
would seem to lend themselves to the concept of NER just as easily as the
income tax. An examination of reported federal decisions reveals, however,
that writs ofNER were not emp Joyed in those types of cases either. The closest
the early federal revenue-related cases come to discussing writs of NER is in
isolated references to the writ of extent, which in some contexts is referred to
as extendifacias.
217
In essence, a writ of extent was a writ of execution issuing from the
exchequer upon a debt due the Crown.
218
The basis for and effect of such writs
were simple and severe: "It was ever a principle oflaw, that the Crown might
seize in execution consecutively the body, lands, and goods of its debtor and
even debts due to him .... "
219
As with the writ of NER referenced in
7 402( a) of the Code, therefore, a writ of extent could be used to effect an
arrest arising out of delinquent tax obligations.
B. Writs of Extent as a Tax Collection Device
1. Writs of Extent in England
Writs of extent were originally used to secure debts incurred in connection
with trade, but their use was gradually expanded to other areas;
220
so much so
that the writ of extent as a Crown process became "the constaot execution at
216. See discussion supra Part lll.B.
2! 7. The Supreme Court analyzed writs of extent in Murray's Lessee v. Hoboken Land &
Improvement Co., 59 U.S. (18 How.) 272 (1855). See discussion infra at Part VII.B.2. The tenn "extent"
is defmed as follows:
1. A seizure of r o p ~ in execution of a writ. 2. A writ issued by the Exchequer to recover a debt
owed to the Crown, udder which the debtor's lands, goods, or body could all be seized to secure
payment-Also termed writ of extent; extent in chief 3. A writ giving a creditor temporary
possession of the debtor's property ( esp. Jand).-Also tenned extendifacias.
BLACK's LAw DICTIONARY 622 (8th ed. 2004). A capias extendi facias was "[a] writ of execution issued
against one who is indebted to the Crown, commanding the sheriff to arrest the debtor." Id at 221.
218. See defmition of"extent" supra note 217.
219. JOSEPH CHITIY, A TREATISE ON THE LAW OF THE PREROGATIVES OF THE CROWN; AND THE
RELATIVE DUTIES AND RIGHTS OF THE SUBJECT 262 (1820).
220. Id. al263-64.
2010] WRJT OF NE EXEAT REPUBLICA 137
the suit of the Crown, against its own immediate debtor."
221
Taxes were
considered Crown debts.
222
There were two main categories of writs of extent,
223
which were issued
out of the equity side of the Court of Exchequer.
224
The first type was called
an extent in chief, and was issued for the benefit of the Crown against the
Crown debtor.
225
The second type was called an extent in aid, issued at the
insistence of and for the benefit of the Crown debtor, against debtors of the
Crown debtor.
226
Further subdivisions existed within each of the two main
categories of extents.Z
27
For example, there were two types of extents in chief:
[O]ne is called an immediate extent, that is, an extent which issues without the
intervention of a scire facias, on an affidavit that the Crown debt is in danger; the other
is an extent, which is the ultimate process of execution on a Crown judgment, obtained
on a scire facias or other action, there being no affidavit that the Crown debt is in
danger.22s
In general, the first step in obtaining a writ of extent was to ascertain that
there was a debt due the Crown, so that it could become a "debt of record,"
which would allow for execution on the debt.
229
In most cases, a "debt of
record" was established only after judicial proceedings were held to verify the
existence and amount of the debt.
230
By statute, however, debts due from tax
collectors were deemed to be debts ofrecord.
231
As a result, immediate extents
were "generally issued by the Crown in the case of collectors of taxes and
others, who have made default in paying over the duties in their hands."'"
Immediate extents were justified "in cases of danger, or insolvency."'" In
those instances, an "affidavit of danger" was required in lieu of judicial
221. Id. at 264.
222, In re Bonham, l 0 Ch.D. 595, 602 (1879) ("(I]t is quite true that assessed taxes, land tax, property
or income tax, are Crown debts ... . ");see also Damsky v. Zavatt, 289 F.2d 46, 49 (2d Cir. 1961)
(describing the role of the Exchequer as a revenue court trying cases brought by the King to collect his
debts).
223. CHITTY, supra note 219, at 264.
224. ld. at 274. The "two sides" of the Court of Exchequer, part financial bureau and part judicial
tribunal, ar.e discussed ilJ: Damsky, 289 F.2d at 49-50.
225. CIDTIY, sup'ra note 219, at264.
226. Id.
227. Id.
228. Id.
229. ld at 265. The term "debt of record" is sometimes referred to as a "debt on record." Id
230. Id.
231. Id. at 266 (quoting43 Geo. 3, c. 99, 41 (1803) (Eng.)).
232. DowELL & PIPER, supra note 213, at lxxix.
233. CHITIY,supranote219,at265.
138 PITTSBURGH TAX REVIEW [Vol. 7:103
proceedings,
234
disclosing the reason for the departure from the usual process,
including situations where the debtor had "abscouded"
235
or "was selling off
his effects in order to withdraw himself.""' While no bail was allowed for
writs of extent where the body, lands and goods of a debtor were seized,
237
discharge could be obtained in some arrests of debtors, "on a special
application to the Court, or a baron in vacation.'m
8
Once a writ of extent was issued, the sheriff was permitted to "enter into
any liberty for the purpose of executing it."
239
The sheriff, moreover, was free
to "break open outer doors, having previously signified his authority, and
requested admittance," and could make arrests and seize real and personal
property.
240
The power conferred by writs of extent was evidently well known. For
example, William Shakespeare's 1599 play, As You Like It, included an
explicit reference to the writ of extent, in a statement by a Duke, intent on
punishing the son of one of his enemies: "Well, push him out of doors; And
let my officers of such a nature Make au extent upon his house and lauds: Do
this expediently and tnrn him going."
241
Parliament eventually abolished writs of extent in 1947, as part of the
Crown Proceedings Act.
242
2. Writs of Extent in the United States
While there are few federal cases that even mention the writ of exteut,
243
the Supreme Court examined the origins of such writs in 1855 in Murray's
Lessee v. Hoboken Land & Improvement Co.
244
The main issue in the case
234. Id. at 277.
235. [d. at 278.
236. !d. at 279 (internal quotation marks and footnote omitted).
237. Id. at 278; see also id. at 281 ("The extent is an execution, and the Crown is not bound by the
statuti( 23 Hen. 6. c. 9. and consequently the defendant is not bailable.").
238. Id. at 282.
239. !d. at 280 (footnote omitted).
240. Id. (footnote <Anitted).
241. WILLIAM sHAKEsPEARE, As You LIKE IT, act 3, sc. 1.
242. Crown Proceedings ACt, 1947, 10 & 11 Geo. 6, c. 44, 23, sched. 1 (Eng.) (abolishing
"[p]roceedings for the determination of any issue upon a writ of extenf').
243. See, e.g., In re Reed, 20 F. Cas. 417, 420 (D. Vt. 1844) (No. 11,640) (discussing the writ of
extent in the context of a bankruptcy application for a discharge of debts); United States v. Humphreys, 26
F. Cas. 430, 432 (C.C.E.D. Va. 1879) (No. 15,422) (involving a lien imposed against property owned by
collector of customs, where the court observed that "the ancient writ in favor of the crown of extendi facias
is obsolete by mere disuse").
244. 59 u.s. (18 How.) 272,276-77 (1855).
2010] WRIT OF NE EXEAT REPUBLICA 139
involved competing claims to real property once owned by the collector of
customs for the port of New York.
245
Those claims, in tum, hinged on the
validity of a distress warrant,
246
which had been issued to the collector by the
solicitor of the treasury following an audit that revealed $1,374,119.65 was
due to the federal govemment.
247
In examining the validity of the distress warrant and the subsequent
seizure and sale of the collector's property, the Supreme Court reviewed the
origins of such warrants, including the writ of extent (an English analogue),
under which "the body, lands, and goods of the king' s debtor were liable to be
levied on to obtain payment."
248
Obtaining a writ of extent against collectors of revenue and other
accountants of the crown was relatively unproblematic.
249
As deemed debts of
record, the amounts due "were certified to what was called the pipe office, to
be given in charge to the sheriffs for their levy."
250
Finally, "[i]f an accountant
failed to render his accounts, a process was issued, termed a capias nomine
districtions, against the body, goods, and lands of the accountant."
251
This review of English procedures revealed that, "as respects such debts
due from such officers, 'the law of the land' authorized the employment of
auditors, and an inquisition without notice, and a species of execution bearing
a very close resemblance to what is termed a warrant of distress in the act of
1820, now in question."
252
Indeed, the Supreme Court referenced the use of
similar practices in the early days of the English colonies in America and
examples from the States, after the Declaration oflndependence.
253
245. Id. at 274-75.
246. A "distress warrant" is a "warrant authorizing a court officer to distrain property," BLACK's LAw
DICTIONARY 1616 (8th ed. 2004).
247. Murray's Lessee, 59 U.S. (18 How.) at 274-75.
248. ld. at 277 .
. 249. See id. at 277-78. The analysis in Murray's Lessee of the procedures associated with writs of
extent is consistent with the observations ofCIDTIY, supra note 219, whose treatise is cited by the Supreme
Court in its opinion.
250. Murray's Lfssee, 59 U.S. (18 How.) at 278. The "pipe office" housed "pipe rolls," which were
"annual rolls containing the statements of the accounts of the ldng's revenue and various expenses and other
matters affecting the British public treasury and dating from 1131 to 1833." WEBSTER'S TmRD NEW
INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 1722 (1993).
251. Murray's Lessee, 59 U.S. (18 How.) at 278. The term capias nomine districtions appears to be
Latin for a writ issued to "take by distraint." See BLACK'S LAW DICTIONARY 221 (8th ed. 2004) (defining
"capias" as Latin for "that you take''); id. at 1076 (defming "nomine" as Latin for "under the name of'); id.
at 510 (defining "districtio" as "Law Latin" for "[a] distress; a distraint").
252. Murray's Lessee, 59 U.S. (18 How.) at278.
253. Id.
140 PITTSBURGH TAX REVIEW [Vol. 7:103
Ultimately, the Supreme Court held that the distress warrant at issue in
Murray's Lessee was valid.
254
Consequently, it upheld the claim to ownership
of the land asserted by the party who purchased the property from a United
States Marshal the day after the property was levied upon pursuant to the
distress warrant.
255
3. Writs of Extent Applied Against Collectors (As Opposed to Taxpayers)
Murray's Lessee, like other cases involving writs of extent,
256
involved a
collector of public revenues. The focus on government collectors, whether of
customs duties or otherwise, dates back to thirteenth-century England, as
explained in Damsky v. Zavatt.
251
In Damsky, the court noted that, while the
Court of Exchequer decided cases between the Crown and taxpayers, as well
as the Crown and accountants to the Crown, the latter cases predominated,
since debts owed by taxpayers were satisfied, to the fullest extent possible, by
distraint.
258
Consequently, individual taxpayers were rarely summoned to
appear before the court on delinquent accounts.
259
One historian, in a work addressing taxation in medieval England,
described Crown tax collection efforts, and the focus on collectors (as opposed
to taxpayers), as follows:
The question is, what measures did the government employ to force recalcitrant or
dilatory debtors to pay? It seems at first sight curious that the individual debtor should
not have been summoned by the sheriff before the exchequer, and indeed this may have
been done. Yet the practice was for the exchequer to summon the county commissioners
before it to report the amounts still due. The sheriff accordingly was ordered to distrain
the taxpayers to pay the assessors and collectors. They, the taxpayers, were practically
never ordered to appear and account to the exchequer or the special exchequer. If the
collector died, his heir was responsible for the debt. While the sheriff early in the
assessment stepped aside, later he might receive the tax from the collector and so become
254. Id at 285-86.
255. !d. at 274 (describing the sale of the property).
256. See, e.g., In re Hackett, 53 Vt. 354 (1881) (imprisoning a delinquent tax collector on a writ of
eXtent issued summarily); .Wnited States v. Humphreys, 26 F. Cas. 430, 432 (C.C.E.D. Va. 1879) (No.
15,422). '
257. 289 F.2d 46, 53 (2d Cir. 1961) (foreclosure action under 7403 "sufficiently akin to the historic
equity practice" to Preclude jury trial).
258. Id at 49. In the context of English legal history, it has been observed that "[t]he practice of
distraining one's adversary, that is, of taking things from him and keeping them, so that by a desire to
recover them he may be compelled to pay money or do some other act, is doubtless very ancient." 2
FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, THE HiSTORY OF ENGLISH LAW BEFORE THE TIME
OF BowARD I, at 575 (Lawbook Exch., Ltd. 1996)(1898).
259. Damsky, 289 F.2d at 49.
2010) WRJT OF NE EXEAT REPUBLICA 141
responsible. But the danger was that whatever came into the sheriff's hands might remain
there.
Thus a new system of collection was evolved which was more orderly and systematic
and could be seemingly more easily and directly controlled by the king's council, but
also which threw the responsibility upon the assessors and collectors, and rarely if ever
brought the individual taxpayer into the exchequer or other central financial office.
260
4. The Primary Difference Between a Writ of Extent and a Writ ofNER
A writ of extent was a procedural device used to collect delinquent taxes,
and in that sense, is similar to a writ ofNER, as used in federal tax cases. It is
clear, however, that the two writs differed in this respect: collectors and
accountants to the Crown (as opposed to taxpayers) were the primary parties
against whom writs of extent were issued.
261
Consequently, it would be
incorrect (in the author's view) to argue that the present-day use of writs of
NER in tax cases is justified by the historical uses of writs of extent against tax
collectors and customs agents.
C. Conclusion as to the Historical Basis for Applying NER in Tax Cases
As noted above, Beames concluded in his 1821 treatise that past uses of
the writ ofNERjustified its continued use. That same reasoning, however, is
difficult to apply with respect to the use of writs of NER in tax cases,
especially when one considers the absence ofhistorical underpinnings for such
uses and the facts that NER first appeared in a federal tax statute in 1919 and
was discussed for the first time in a reported federal tax decision in 1964.
Indeed, the use ofNER in federal cases, for any purpose, is relatively rare.
As discussed below, the limited number of federal cases involving NER
(in any context) suggests that attempts to justify the present-day use of writs
ofNER in tax cases, based on their use in the past, is weak.
262
l. Federal Cases (Unrelated to Tax) Involving NER
As of this writing, there are about 220 reported federal cases which
include the term ~ n e exeat."
263
Only a handful of those cases directly relate to
260. SYDNEY KNox MITCHELL, TAXATION IN MEDlEY AL ENGLAND l 01 (Sidney Painter ed., Archon
Books 1971) (1951) (footnotes omitted).
261. See discussion supra Part Vll.B.Z-3.
262. See discussion infra Part Vll.C.3.
263. The number of cases cited in the text was obtained by conducting a Westlaw search in the
142 PITISBURGH TAX REVIEW [Vol. 7:103
applications for writs of NER in tax cases, or efforts by taxpayers to quash
writs of NER.
264
The other reported federal (non-tax) cases were primarily
issued in the 1800s or early 1900s, iu matters involviog bankruptcy,
265
debt
collectiou,
266
and (surprisingly) matters incidental to divorce proceedings.
267
Recently, however, references toNER are appearing with some frequency
io cases involving the application of international law to child custody
issues.
268
The cases typically address the question whether an NER provision
in a custody order confers a "custodial right."
269
As a result, the relatively
recent flurry of those cases sheds no light on questions relating to the
application ofNER in tax cases.
However, some of the older cases which reference NER, while unrelated
to tax, are instructive because of the emphasis they place on the extraordioary
nature of the writ of NER, and the very limited instances where its use was
deemed to be appropriate. In Lancaster v. Asheville St. Ry. Co., for example,
the court referred to the issuance of writs ofNER as "an exceediogly delicate
and responsible duty, to be discharged by the court with .the utmost caution,
and only under such special or peculiar circumstances as demand summary
relief.'mo
"ALLFEDS" database using the term "ne exeat."
264. As noted in Part V, most of the relatively few tax cases referencing the term "ne exeat' merely
cite the full text ofi.R.C. 7402(a). Tax cases addressing requests for writs ofNER, or other noteworthy
aspects relating to the writ ofNER, are discussed supra Part V.
265. See, e.g., In re Foster Constr. Corp., 50 F.2d 693, 695 (2d. Cir. 1931) (reversing the denial of a
motion to vacate a writ ofNER in a bankruptcy case, describing the writ as "so great a power, practically
reviving imprisonment for debt, and touching so seriously the personal liberty of a very large class of
citizens"), aff'd sub nom., D. Ginsberg & Sons v. Popkin, 285 U.S. 204 (1932).
266. See, e.g., Shainwald v. Lewis, 46 F. 839, 843 (N.D. Cal. 1889) (declining to grant a writ ofNER
in a case to recover a debt, observing that granting a writ of NER for an indefinite period "would be
equivalent to committing the defendant to jail, the jail limits being the boundaries of the northern district
of California.").
f-67. See, e.g., Jacobsen v. Jacobsen, 126 F.2d 13, 14 (D.C. Cir. 1942) (reversing the denial of a
motiOri to quash a writ ofNER, observing that a full hearing on such writs is required to avoid a deprivation
of liberty without due process of law in violation of the Fifth Amendment).
268. See, e.g., Lall> v. Ma!ca, 318 F. Supp. 2d 1152, 1156 (S.D. Fla. 2004) ("A ne exeat right can
generally be defined as the right to determine if a child may live outside a particular country.") (footnote
omitted). '
269. One of the principal child custody cases is Croll v. Croll, 229 F.3d 133, 140 (2d Cir. 2000)
(holding that NER gives the non-custodial parent a reserve power to veto the child's geographical location
and nothing more than mere leverage as to other parenting issues), cert. denied, 534 U.S. 949 (2001). But
see Fumes v. Reeves, 362 F.3d 702 (11th Cir. 2004) (noting the court's explicit disagreement with Croll,
and holding that a NER in a child custody case does constitute a right of custody), cert. denied, 543 U.S.
978 (2004).
270. 90 F. 129, 133 (C.C.W.D.N.C. 1898) (denying a request to appoint a receiver).
2010] WRIT OF NE EXEAT REPUBLICA 143
Other older cases demonstrate the troubling "bounty hunter" feel of writs
of NER, when used to collect debts other than tax liabilities. In Griswold v.
Hazard, the court's opinion recounts the day-long surveillance and nighttime
arrest of Durant, a citizen ofNew York, while on a weekend sailing trip in
Rhode Island.
271
About noon on a Saturday, a writ ofNER was issued against
Durant while "[h ]e was then sailing with several friends, in his yacht on the
high seas. "
272
The yacht landed at night, at which point Durant was "notified
by two officers, who had kept continuous watch for him at the wharf during
the afternoon, that they had a writ for his arrest,-meaning the above writ of
ne exeat,-and that he must go to jail."
273
Another similar instance of shadowing a debtor to effect a civil arrest is
described in Harrison v. Graham.Z
74
There, the defendant, a subject of Great
Britain residing in Canada, was pursued by a resident of New York, for a
generally described claim of $6,000.
275
The plaintiff, in attempting to collect,
applied for a writ ofNER while the alleged debtor was on a brief pleasure trip
to Maine."' The court, however, refused the application after comparing the
"relative mischiefs" and international considerations involved, reasoning as
follows:
We, of course, have no knowledge how much hardship, and, consequently, how much
practical injustice, would be imposed on the respondent by an arrest on foreign soil,
where he is sojourning temporarily for pleasure, if the alleged cause of action against him
should prove to be baseless; while we can perceive that there is no substantial hardship
to the complainant involved in the denying of the writ now asked for, inasmuch as he has
had ample opportunity of proceeding against the respondent at Montreal, no more remote
from the residence of the complainant than is the habitat of the United States circuit court
for this district [i.e., Maine], and inasmuch, also, as we are well assured that his decree,
ifhe obtains one in this suit, will be respected by the courts of the province ofQuebec?
77
Overall, the older (non-tax) cases confirm that writs ofNER should not
be issued in the absence of a debt which is. certain both as to existence and
amount. In Graham v. Stucken, for example, the court denied an application
for a writ ofNER in a commercial case, noting that "the writ 'is only applied
to that which is really a debt, and not to that which may become a debt, when
!
'
271. 141 U.S. 260, 275 (1891,) (holding that a surety on an NER bond was entitled to have the terms
of the bond reformed on equitable grounds).
272. Id.
273. Id.
274. 110 F. 896 (C.C.D. Me. 1901).
275. Id.
276. ld.
277. Id.
144 PITISBURGH TAX REVIEW [Vol. 7:103
a recovery in damages shall have ascertained what is due. "'
278
Other courts,
including the Supreme Court, have reached the same conclusion; namely, that
"the writ ne exeat would not be issued in a case . . . where the defendant
presently owes no debt to the complainant nor is under any fixed duty by
reason of the receipt of moneys to account to the complainant therefore. "
279
2. State Cases Involving NER
There are more reported state court opinions mentioning NER than
reported federal opinions; however, there are still relatively few such state
court opinions (about 1120) and almost all of them address issues unrelated to
tax or tax-related topics.
280
The very few state tax cases that mention NER
have done so in the context of discussing the propriety of civil arrest (and bail)
for delinquent state or local tax obligations, finding that such arrests were
improper for tax and interest on tax.Z"
3. The Past, Limited Use ofNER,for Any Purpose, State or Federal
The limited number of federal and state cases, along with the subject
matter they address, and their cautionary tone, demonstrate this: the historical
basis for using writs ofNER in tax cases is thin.
278. 10 F. Cas. 945, 947 (C.C.S.D.N.Y. 1857) (No. 5677) (quoting Lord Eldon in Flack v. Holm.
(1820) 37 Eng. Rep. 430, 431 (Ch.)) (civil action to set aside the sale of vessels).
279. DeBeers Consol. Mines v. United States, 325 U.S. 212, 221-22 (1945) (involving a request for
injunctive relief) (footnote omitted); see also Gemon v. Boecaline, 10 F. Cas. 263 (C.C.D. Pa. 1807) (No.
5367)' (rejecting an affidavit for writ ofNER because "the bill has no equity for this court; for if a balance
is due the plaintiff, he may have a remedy at common law").
280. The number ~ f state court cases mentioning NER, about 1120, was obtained by conducting a
Westlaw search in the "ALLSTATES" database using the term "ne exeat." As discussed in Part VII.C.l
supra, there are only 220 reported federal opinions which include the tenn NER.
281. See Moore v. Bauer, 32 Pa. D. & C.2d 527 (Ct. Com. Pl. 1963) (''writ of capias ad respondendum
may not be used by a municipality to enforce the collection of taxes and interest, whether or not reduced to
judgment"); see also Philadelphia v. Percival, 346 A.2d 754 (Pa. 1975) (holding "that local rule of court"
amending statutory procedure for writs of capias ad respqndendum, in the context of enforcing city's wage
tax, was null and void). A writ of capias ad respondendum is "[a] writ commanding the sheriff to take the
defendant into custody to ensure that the defendant will appear in court." BLACK'S LAw DICTIONARY 221
(8th ed. 2004).
2010] WRIT OF NE EXEAT REPUBLICA 145
VIII. POTENTIAL CONSTITUTIONAL PROBLEMS WITH NER
The use ofNER in tax cases is likely to raise questions about whether the
taxpayer's constitutional rights have been violated. There are two main
concerns: first, whether the use of the writ ofNER amounts to imprisonment
of the taxpayer for failure to pay a debt and, second, whether the taxpayer's
"right to travel" is impermissibly infringed by travel restrictions imposed by
a writ ofNER.
A. The Debtors' Prison Argument
The Thirteenth Amendment, which prohibits slavery and involuntary
servitude, "except as a punishment for crime,"'" has been interpreted to apply
to situations involving compulsion of service under the threat of
imprisonment."' Consequently, the Thirteenth Amendment does not
specifically prohibit imprisonment for the failure to pay a debt.
284
However, "[m ]any state constitutions contain provisions which, although
varying considerably in terminology and application, generally prohibit
imprisonment for debt. "
285
A federal statute, in tum, requires the courts of the
United States to adhere to the prohibitions on "imprisonment for debt"
imposed by the laws of the state in which the federal court sits, as follows:
A person shall not be imprisoned for debt on a writ of execution or other process issued
from a court of the United States in any State wherein imprisonment for debt has been
abolished. All modifications, conditions, and restrictions upon such imprisonment
provided by State law shall apply to any writ of execution or process issued from a court
of the United States in accordance with the procedure applicable in such State.2
86
282. u.s. CONST. amend. xm, L
: 283. United States v. Kozminski, 487 U.S. 931, 943 (1988) ("[I]n every case in which this Court has
found a condition of involuntary servitude, the victim had no available choice but to work or be subject to
legal sanction."). ;,
284. See, e.g., Makarovv. Commonwealth, 228 S.E.2d 573, 575 (Va. 1976) (noting that"[t]he United
States Constitution contains no e'Wress provision against imprisonment for debt").
285. 16B AM. JUR. 2d Constitutional Law 674 (1998). For an overview of the historical
development of imprisonment for debt, see Richard Ford, Imprisonment for Debt, 25 MICH. L. REV. 24
(1926).
286. 28 U.S. C. 2007(a) (2000). Prior versions of the statute date back to the early nineteenth
century. See Act of Feb. 28, 1839, cb. 35, 5 Stat. 321, 321 (providing "[t]bat no person shall be imprisoned
for debt in any State, on process issuing out of a court of the United States, where by the laws of such State,
imprisonment for debt has been abolished").
146 PITTSBURGH TAX REVIEW [Vol. 7:103
The statute also requires the federal courts to apply "[t]he same requirements
governing discharge as are applicable in such State .... "
287
Most courts, including the court in United States v. Greene, have rejected
"debtor's prison" objections to civil arrest and imprisonment, pointing out that
inability to pay is not the reason for such harsh measures.
288
In Greene, the
government filed a motion to repatriate funds and requested that sanctions,
including a writ of NER, be imposed against a taxpayer who had previously
been convicted of willfully attempting to evade tax.
289
The court granted the
government's motion,
290
and as part of its order, issued a warrant for the
taxpayer's arrest on the grounds that he was in contempt of court.
291
In its
order, the court addressed the reasons permitting imprisonment of the taxpayer
as a sanction:
[WJe. are not at all concerned with the power of courts to impose conditional
imprisonment for the purpose of compelling a person to obey a valid order. Such
where the defendant carries the keys to freedom in his willingness to comply
with the court's directive, is essentially a civil remedy designed for the benefit of other
parties and has quite properly been exercised for centuries to secure compliance with
judicial decree.
292
It is not clear, however, that all courts (particularly state courts) would
accept that reasoning when deciding whether arrest and imprisonment of a
party is permitted in a civil case. In Lepak v. McClain, for example, the
Oklahoma Supreme Court considered whether imprisonment for indirect civil
contempt was permitted under state law when used to enforce compliance with
an order directing a debtor to make installment payments on a money
judgment.
293
The court held that it was not,
294
citing a state constitutional
287. 28 u.s.c. 2007(b) (2000).
288. UnitedStatesv.Greene,No. C-83-6107-MHP, 1984 WL256,at*4-*5 (N.D. Cal.May16, 1984)
(supplemental order). The court's original order is reported at United States v. Greene, 84-1 U.S.T.C.
9434, 53 A.F.T.R.2d 1463 (N.D. Cal. 1984).
489. Greene, 1984 WL 256, at *2.
290. ld
291. Id.
292. !d. at *5. -1
293. 844 P.2d 852,' 853 (OI<4. 1992). Contempt may be direct or indirect, depending upon whether
or not the objectionable acts or behavior take place in the presence of the court. See 17 AM. JUR. 2d
Contempt 11 (2004). In addition, contempt may be civil or crirninal.Jd. However, imprisonment for the
failure to make payments pursuant to a court order may not be based upon the failure to pay a court order
where a bona fide inability to pay is the reason for the non-payment. See Spectacular Venture, L.P. v. World
Star Inc., 927 F. Supp. 683, 685 (S.D.N.Y. 1996) (citing several examples of permissible uses of
imprisonment for contempt based on a failure to pay, but noting that "if the contemnor can establish that
he or she is unable to comply with the Court's order, the contempt sanction must be lifted because it ceases
2010] WRIT OF NE EXEAT REPUBLICA 147
provision prohibiting imprisonment for debt.
295
The court reached that
decision, moreover, without also deciding the question whether the debtor was
able to pay the court-ordered amounts.
296
The most fundamental explanation for the court's reasoning in Lepak was
described in a concurring opinion, which emphasized the broad prohibitions
against imprisonment for debt in Oklahoma, and the irrelevancy of whether
such imprisonment is effected pursuant to "ancient" writs, like NER, or "some
new and cloaked form" of capias:
Our fundamenta1law specifically abrogates capias for debt. Art. 2, 13, Okl. Cons!. All
forms of coercive body restraint process that may lead to imprisonment for
debt-whether by body attachment, by some new and cloaked form of resurrected capias
or by an ancient writ like that of ne exeat-must fall under the explicit constitutional axe.
In short, no coercive body restraint process is constitutionally permissible as a substitute
for the writ of execution to enforce a general order for payment ofjudicially scheduled
installments on a money judgment.
297
Long ago, other state courts, taking into account state-law prohibitions
against imprisonment for debt, reached similar conclusions in cases involving
the writ ofNER, albeit in situations where the debtor's ability to pay was not
clear.
298
Can cases like these be used as a basis for arguing against the use of
a writ ofNER against a taxpayer in a federal tax case, pursuant to the federal
law prohibiting imprisonment in states where imprisonment for debt has been
abolished?
299
to have a useful coercive effect").
294. Lepak, 844 P.2d at 853.
295. OKLA. CONST. art. II, 13 ("hnprisonment for debt is prohibited, except for the non-payment
of fmes and penalties imposed for the violation of law.").
296. The dissenting opinion in Lepak pointed out the majority's failure to consider the debtor's ability
to pay, noting that the trial court had docketed a hearing to determine why Lepak had not paid the ordered
installments. 844 P.2d at 865 (Simms, J., dissenting). [I]fthe [trial] court detennines that Lepak does not
have sufficient nonexempt property to meet his other obligations and also pay the ordered installments, then
imprisonment for contempt of court would not be appropriate." !d.
297. Jd at 861 (Opala, C.J., concurring) (footnotes omitted).
298. See, e.g., Sco!n v. Taylor, 13 Ark. 380 (1853) (arrest and imprisonment under a writ of ne
exeat was improper due t<:(-1843 law prohibiting imprisonment for debt); West v. Walker, 6 Blackf. 420 (Ind.
1843) ("A defendant in chancery beJng in prison on a writ of ne exeat to secure hls perfonnance of a decree
for a pecuniary demand against him claimed by the bill, was discharged from custody on motion, under the
act of 1842 abolishing imprisonment for debt, no fraud on the subject being shown."); Cable v. Alvord, 27
Ohio St. 654, 669 (1875) (holding that writs of NER had been abolished in Ohio, a conclusion that
"comports with the spirit of our constitution and laws relating to imprisonment for debt, and the ancient
maxims of the law, that process which abridges the liberty of the citizen should be resorted to with great
caution").
299. See 28 U.S.C. 2007(a).
148 PITTSBURGH TAX REVIEW [Vol. 7:103
At least this much is certain: whether confinement to compel payment
amounts to 'imprisonment for debt' is a matter of federal law.
300
Federal
courts, thus, will not necessarily be controlled by a state court's determination
that all forms of coercive body restraint process, including contempt orders
and writs ofNER, are unlawful under state law. At the same time, however,
a federal court may not imprison a party for contempt, as a substitute sanction
for a bona fide inability to pay, in a state where imprisonment for debt has
been abolished:
The power of the courts of the United States to punish for contempt and imprison for
non-payment of money judgments is circumscribed and controlled by the laws of the
state; and where an order made in the progress of the cause is of the character in
substance of a judgment or decree for the payment of money. it cannot be enforced upon
the theory that disobedience is a contempt.
301
Consequently, it may not always be easy to distinguish between the
permissible use of confmement to effect compliance with a court order to pay
money (or, in the case ofNER, to post a bond), from the impermissible use of
confinement as a punishment for the inability to pay. In Pierce v. Vision
Investments, Inc., for example, the Court of Appeals for the Fifth Circuit
initially held that civil contempt sanctions, imposed for the failure to make
certain court-ordered payments, violated provisions of the Texas constitution
prohibiting imprisonment for debt (and by extension violated 28 U.S.C.
2007).
302
On rehearing, however, the same panel of judges reached the
opposite conclusion, finding that "imprisonment is an appropriate contempt
sanction for failing to make payments in accordance with a court order unless
the contemnor demonstrates inability to pay."
303
In tax cases where the writ of NER is under consideration, state court
prohibitions on imprisonment for debt may complicate, or at least have some
bearing on, questions about whether the writ may be issued. As noted in
Shaheen, "[t]he writ should not be employed for any purpose akin to
..
300. SEC v. Divelsified Growth Corp., 595 F. Supp. 1159, 1171-72 (D.D.C. 1984) (coercing
obedience of a lawful order is within the court's civil contempt power) (footnote omitted).
301. Mallory Mfg. Co. v. Fox, 20 F. 409 (C.C.S.D.N.Y. 1884); see also FOSTER, supra note 169, at
261 ("It is unsettled whether the writ [ofNER] can now issue from a Federal court held in a State which
has abolished imprisonment for debt.") (citing Mallory, 20 F. 409).
302. Pierce v. Vision Jnvs., Inc. (Pierce f), 765 F.2d 539 (5th Cir. 1985), vacated on reh'g, 779 F.2d
302 (5th Cir. 1986). In pertinent part, the Texas Constitution provides that "No person shall ever be
imprisoned for debt." TEX. CONST. art. I, 18.
303. Pierce v. Vision Invs., Inc. (Pierce If), 779 F.2d 302,309 (5th Cir. 1985).
2010] WRIT OF NE EXEAT REPUBLICA 149
imprisonment for debt"
304
Consequently, state prohibitions against
imprisonment for debt should always be considered inNER cases, just as they
are in non-tax cases involving the propriety of imprisonment for civil or
criminal contempt
305
B. The Right to Travel
The origins and evolution of the constitutional "right to travel" are
expansive topics that have been extensively analyzed by others.
306
However,
there are certain basic principles to be considered in the context of the present
discussion, beginning with the "crucial difference" between international and
interstate travel.
307
1. International Travel
The Supreme Court has held that the right to travel abroad is part of the
"liberty'' protected by the Due Process Clause of the Fifth Amendment
308
In
most instances, however, that simply means that restrictions on international
travel will be upheld if they are "reasonable."
309
Accordingly, the courts have
held that the Government need only advance a rational, or at most an
important, reason for banning or curtailing the right to travel abroad.
310
For taxpayers facing a writ ofNER, the net effect of the case law is this:
without more, an objection based on the constitutional right to travel abroad
will likely be viewed by the courts as insufficient At the same time, however,
304. United States v. Shaheen, 445 F.2d 6, 12 (7th Cir. 1971) (discussed supra Part V.B.2).
305. See, e.g., Santibanez v. Wier McMahon & Co., 105 F.3d 234, 242 (5th Cir. 1997) ("We note that
federal courts are prevented from imprisoning a party for contempt when doing so would conflict with the
state's prohibition of debt imprisonment.').
306. See, for example, the articles cited supra note 208.
307. Haig v. Agee, 453 U.S. 280, 307 (1981) ("(T]his Court has often pointed out the crucial
difference between the freedom to travel internationally and the right of interstate travel."); see discussion
supra Part VJ.B. and note 203.
308. Kent v. Dull$', 357 U.S. 116, 125 (1958).
309. See, e.g., Ca"lifano v. Aznavorian, 439 U.S. 170, 178 (1978) (upholding a provision of the Social
Security Act denying social security benefits when the recipient is outside of the United States, on the
grounds that it was "rationally based"); Haig, 453 U.S. at 306 (travel abroad "is subject to reasonable
governmental regulation"); see also Zemel v. RusJ4 381 U.S. 1, 14-16 (1965) (upholding the Secretary of
State's refusal to validate passports for travel to Cuba). But see Aptheker v. Sec'y of State, 378 U.S. 500,
504-06 (1964) (holding invalid an act authorizing the denial of passports to all members of the Communist
Party because it was too broad in scope).
310. See Eunique v. Powell, 302 F.3d 971, 972-74 (9th Cir. 2002) (applying rational basis test to deny
a passport to an applicant because of unpaid child support).
150 PITTSBURGH TAX REVIEW [Vol. 7:103
the right to travel abroad remains an important constitutional consideration-
just one of a number of factors to be considered by the courts when evaluating
the propriety of requests for writs ofNER.
311
The use of a "rational basis" standard may suggest that international travel
is really more of a privilege than a "right"; however, the following remarks of
Lord Denning in Ghani v. Jones (a non-tax case from England) are illustrative
of the deference that Anglo-American courts have historically accorded to
matters concerning international travel:
I cannot help feeling that the real reason why the passports have not been returned is
because the officers wish to prevent the plaintiffs from leaving this country pending
police enquiries. That is not a legitimate ground for holding them. Either they have
grounds for arresting them, or they have not. If they have not, the plaintiffs should be
allowed to leave..:......even if it means they are fleeing from the reach of justice. A man's
liberty of movement is regarded so highly by the law of England that it is not to be
hindered or prevented except on the surest grounds.
312
While Ghani is a relatively old decision (having been issued in 1970) and
is English, similar observations could be made about the concept of NER.
Indeed, given the English origins of NER, and the fact that Ghani involved
suspicion of murder (as opposed to concerns about the collection of tax), the
prospect of restricting a taxpayer's travel in a civil case seems rather curious
and paradoxical.
2. Interstate Travel
Unlike international travel, the right to interstate travel is "virtually
unqualified. "
313
Cases involving interstate travel typically involve actual or
perceived barriers to migration, such as residency requirements, which may
inhibit travel by placing constitutionally impermissible burdens on individuals
after they have traveled from one state to another state.
314
With a writ ofNER,
31 L See, e.g., United States v. Shaheen, 445 F.2d 6, 7-8, 10 (7th Cir. 1971) (vacating writofNER
after observing, inter alia, that "the right to travel is 'a constitutional liberty closely related to rights of free
speech and association"') {quoting Aptheker, 378 U.S. at 517).
312. [1970] I Q.B. 693,709 (ling.).
313. Califano v. Gautier o r r e ~ 435 U.S. 1, 4 n.6 (1978) (upholding Social Security Act provisions
denying benefits to United States citizens who moved to Puerto Rico); see also United States v. Guest, 383
U.S. 745, 757-58 (196.6) (reversing the dismissal of an indictment charging the defendants with violating
18 U.S.C. 241 by conspiring to intimidate minorities in the free exercise of the right of interstate travel).
314. See, e.g., Mem'l Hosp. v. Maricopa County, 415 U.S. 250 (1974) (invalidating an Arizona
requirement of one year of residency as a condition for indigents to receive free non-emergency medical
care); Shapiro v. Thompson, 394 U.S. 618 (1969) (invalidating laws denying welfare benefits, where the
2010) WRlT OF NE EXEAT REPUBLICA 151
however, the issue is whether a taxpayer may leave a particular state or
jurisdiction.
315
While the right to interstate travel has never been examined in any depth
in the reported tax cases involving writs ofNER, the Supreme Court analyzed
the right to leave a state in Jones v. Helms, which involved a Georgia criminal
statute making it a felony for a parent to leave the State of Georgia after
abandoning a child.'
16
Under the same statute, however, a parent who
abandoned a child but remained within the State of Georgia, was subject to a
lesser penalty, a misdemeanor.
317
The key question, thus, was whether the
difference in punishment, triggered by traveling from one state to another,
violated the constitutional right to travel.
318
The Supreme Court began its analysis by recognizing the "well settled ...
right of a United States citizen to travel from one State to another and to take
up residence in the State of his choice .... "
319
However, itthen described a
number of instances where a state may legitimately prevent one of its citizens
from leaving the state, without running afoul of any constitutionally based
rights to travel:
Most obvious is the case in which a person has been convicted of a crime within a State.
He may be detained within that State, and returned to it if he is found in another State.
Indeed, even before trial or conviction, probable cause may justify an arrest and
subsequent temporary detention. Similarly, a person who commits a crime in a State and
leaves the State before arrest or conviction may be extradited following a "summary and
mandatory executive proceeding."
320
In Jones, the Supreme Court upheld the statute, finding that the
defendant's "own misconduct had qualified his right to travel interstate before
he sought to exercise that right,"
321
further noting that it was "aware of nothing
denial of such benefits was based on the failure to meet a residency requirement).
315. See. e.g., Kbawly v. Knuck, 418 So. 2d 1185, 1186 (Fla. Dist. Ct. App. 1982) (noting that the
petitioner had "[ c Jorrectly assert[ed] that his freedom continues to be restrained by the writ of ne exeat and
tha{habeas corpus relief is available to him," but failing to make any constitutional detenninations due to
its fmding that the affidavit used to obtain the writ ofNER was deficient).
316. GA. (1980) (which imposed enhanced penalties for leaving the state after
abandoning a child); .tones v. Helms, 452 U.S. 412 (1981) (refusing to invalidate the Georgia criminal
statute). '
317. GA. CODE ANN. 74-9902;Jones, 452 U.S. at4!3.
318. After the Supreme Court analyzed the right to travel issues, Jones, 452 U.S. at 413-23, it also
considered and rejected arguments that the statute in question violated the Equal Protection Clause of the
Fourteenth Amendment and was impennissibly "overbroad." See id. at 423-26.
319. Id at418.
320. Jd at 419 (footnote omitted).
321. ld. at 420.
!52 PITTSBURGH TAX REVIEW [Vol. 7:103
in our prior cases or in the language of the Federal Constitution that suggests
that a person who has conunitted an offense punishable by imprisonment has
an unqualified federal right to leave the jurisdiction prior to arrest or
conviction."
322
Finally, the Supreme Court distinguished other interstate travel
cases,'" where "the statute at issue imposed a burden on the exercise of the
right to travel by citizens whose right to travel had not been qualified in any
way."324
3. Unresolved Questions About NER and Interstate Travel in Tax Cases
In a tax case, at least two basic questions arise with respect to the
propriety of restricting a taxpayer's interstate (or intrastate) travel with a writ
of NER. First, if a writ of NER can be used to restrict a taxpayer from
traveling outside a particular state, or to prohibit travel between federal
districts within a state, is the term NER a misnomer, since it literally refers to
prohibitions on leaving the republic?
325
Second, are the standards for
determining the propriety of imposing interstate travel restrictions the same in
criminal cases (such as Jones) and civil cases (such as a case where the
government believes it may have difficulty in collecting a tax)?
The first question has been raised by at least one conunentator, who found
little trouble with using writs ofNER to impose domestic travel restrictions,
despite the literal meaning of the term NER and the "seeming inconsistency"
it raises:
Though the writ of ne exeat can only be issued upon a showing that the defendant
designs quickly to depart from the United States, yet when the court actually comes to
issue the writ, it will restrain the defendant from departing from the particular jurisdiction
of that court. This is a seeming inconsistency, but it is probably based on the idea that
unless the defendant is restrained from going beyond the jurisdiction of the court, the
writ can be given no effect whatever.
326
Nevertheless, other conclusions have been reached. In one early non-tax
case; for example, a writ ofNER was vacated by a federal court due to "some
..
322. !d.
323. Jones, 452 U.S. at 420-21 (noting that Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1867), "held
that a State may not impose a tax on residents who desire to leave a State, nor on nonresidents merely
passing through [a State]." and Edwards v. California, 314 U.S. 160 (1941) "held that a State may not make
it a crime to bring a nonresident indigent person into the State").
324. ld at 421.
325. See the basic definition ofNER in BLACK'S LAw DICTIONARY 1060 (8th ed. 2004).
326. 1 THOMAS ATKINS STREET, FEDERAL EQUITY PRACTICE 2277 (1909) (footnotes omitted).
2010) WRJT OF HE EXEAT REPUBLICA 153
doubt ... as to the power of issuing a ne exeat against a citizen of another
state; the writ of ne exeat being considered as originally founded upon the
right of the sovereigo or of the state to demand the services of all its
subjects. "
327
But aside from those brief remarks, the question has not been
explored in any depth in the case law.
The answer to the second question (i.e., the extent to which travel
restrictions diffur in criminal and civil cases) is not entirely clear. In tax cases,
the courts assume without discussion that a writ ofNER confining a taxpayer
to his home, as in United States v. Mathewson,
328
or to some other location
within a particular jurisdiction, is unproblematic. That assumption is
questionable, however, since the standard applied to travel restrictions in a
criminal case, which is relatively easy for the government to meet, hardly
seems appropriate in a civil case.
At a minimum, the government should be required to meet a higher
standard in a civil tax proceeding involving the propriety of a writ of NER,
especially since the Supreme Court has strictly scrutinized infringements of the
fundamental right to travel in other civil cases.
329
In practice, however, it is likely that the propriety of interstate travel
restrictions in a civil tax case will hinge, as in Jones v. Helms,
330
on whether
the court views them as justified by the taxpayer's conduct. But since the
issuance of a writ of NER in a tax case does not necessarily depend on the
commission of a crime by the taxpayer (unless the writ ofNER is being used,
impermissibly, as a pretext for an arrest for a criminal violation), restrictions
on travel within the United States seem difficult to justify.
327. Patterson v. 18 F. Cas. 1326, 1328 (C.C.D.C. 1806) (No. 10,828) (considering the
propriety of writs ofNEk as to various individuals based on the complaint of a creditor seeking to recover
a debt).
328. 93-1 U.S.T.C. 50,152, 71 A.F.T.R.2d 1453 (S.D. Fla. 1993). See discussion of Mathewson,
supra Part V.C.3.
329. Commonwealth v. Lightman, 489 A.2d 200, 206 (Pa. Super. Ct. 1985) (Spaeth, President J.,
concurring) (rejecting a right to travel objection in a criminal case, noting that "[t]he cases in which the
Supreme Court has strictly scrutinized infringements of the fundamental right to travel all occurred in a civil
context"), cert. denied, 475 U.S. 1095 (1986); see also cases cited supra note 314.
330. Jones v. Helms, 452 U.S. 412, 42Q-22 (1981).
154 PITTSBURGH TAX REVIEW [Vol. 7:103
IX. CONCLUSION
A. Given the Service's Other Powers to Collect Tax, Are Writs ofNER
Necessary?
When it comes to collecting taxes, the Service possesses vast powers.
More than thirty-five years ago, those powers were summed up as follows:
The Collection Division of the Internal Revenue Service is our nation's largest, and most
powerful, collection agency. Once given a tax assessment, the Division has available to
it the most potent arsenal of collection weapons known to our law, the federal tax lien
together with wide powers to discover, seize and sell assets subject to the lien.
331
Thus, the Service's considerable collection powers are triggered by
assessments. While it is true that the Service may encounter problems with
obtaining an assessment of tax in the first place, there are ample provisions in
the Code to deal with those situations. For example, if a taxpayer has not filed
a return, meaning that there has been no "self-assessment" of tax, Code 650 I
provides that "the tax may be assessed, or a proceeding in court for the
collection of such tax may be begun without assessment, at any time." In
addition, the Service may avail itself of the termination and jeopardy
assessments provisions set forth at Code 6851 and 6861, respectively.
Under 6851, a termination assessment for the current or immediately
preceding tax year, may be made upon a finding "that the taxpayer designs
quickly to depart from the United States" or has taken other steps to prejudice
proceedings to collect income tax.
332
Under 6861 of the Code, a jeopardy
assessment is authorized when delay will compromise the Service's ability to
assess and collect tax under the ordinary deficiency procedures.
333
The net effect of these provisions is that the Service is able to "cut short
the normal procedures governing the filing of tax returns, payment of the
reported tax, and collection of any deficiency."
334
As aptly described by one
court, application of procedures such as these allows for a situation best
t
331. Mrs. Philipptnes Home for Senior Citizens, Inc. v. United States, 94-1 U.S.T.C. 50,065, at
83,262, 73 A.F.T.R.2d 598, 608 (D. Md. 1993) (analyzing the reasonableness of jeopardy assessments)
(quoting Marvin J. Garbis, What Can a Taxpayer Do When a Case Has Been Turned over for Collection:
Administrative and Legal Remedies: Powers of the Agent, 29N.Y.U. ANN.INST. ON FED. TAX'N 909,910
(1971)).
332. I.R.C. 6851(a).
333. ld 6861(a).
334. See 4A BORIS I. BITIKER& LAWRENCE LoKKEN, FEDERAL TAXATION OF INCOME, ESTATES AND
GIFTS, ll!.6.3, at ll1-149 (2d ed. 1992).
2010) WRIT OF NE EXEAT REPUBLICA 155
characterized as "the sovereign's stranglehold on a taxpayer's assets."
335
Indeed, "[t]he Collection Division of the Service, and the Revenue Officer
within the Division, has legal powers which can only he described as
awesome. "
336
Finally, the Service's "awesome" powers to effect "strangleholds" on
taxpayers and their property are also supported by an array of criminal tax
statutes.
337
Among other things, those statutes prohibit willful attempts to
evade tax,'
38
the willful failure to account for and to pay tax,
339
and
interference with the administration of the internal revenue laws.
340
With the array of compliance and enforcement provisions described
above, it is surprising that there would ever be a need to resort to a writ of
NER. Indeed, even with the unusual factual circumstances described in
Clough
341
and Lipper,
342
where one taxpayer had already traveled to Canada
and the other was allegedly headed to France, methods of tax collection other
than writs ofNBR existed, but were not discussed in the courts' opinions and,
apparently, were not considered.
343
Given the existence of other direct, well-
defined methods of ensuring compliance with the Code, writs of NER seem
unnecessary.
335. Homan Mfg. Co. v. Long, 242 F.2d 645, 651 (7th Cir. 1957) (reversing summary judgment,
entered in favor of corporate taxpayer, which had challenged a jeopardy assessment).
336. Garbis, supra note 331, at 919.
337. ld; Homan, 242 F.2d at 651.
338. LR.C. 7201 (making it a felony to willfully attempt in any manner to "evade or defeat" tax).
339. !d. 7202 (making it a felony to willfully fail to "account for, and pay over tax:").
340. ld 7212 (making it a felony to obstruct or impede "due administration" of the Internal Revenue
Code).
341. United States v. Clough (Clough 1), 74-1 U.S.T.C. 9277, 33 A:F.T.R.2d 650 (N.D. Cal. 1974);
United States v. Clough (Cloughll), 77-2 U.S.T.C. 40 A.F.T.R.2d 5158 (N.D. Cal. 1977); Clough
v. C0mm'r(Clough Ill), 35 T.C.M. (CCH) 695, 1976T.C.M. 1j76,155;seediscussion of these three
opinions supra Part V.C.l.
342. United v. Lipper, 81-1 U.S.T.C. 9330, 47 A.F.T.R.2d 1289 (N.D. Cal. 1981); see
discussion supra Part V.C.2.
343. The United States baS long been a party to income tax treaties with Canada and France, which
treaties provide for the reciprocal assistance in the collection of tax. See Att'y Gen. of Can. v. R.J. Reynolds
Tobacco Holdings, Inc., 268 F.3d 103, 115-19 (2d Cir. 2001) (describing and summarizing the history of
various income tax treaties to which the United States has been a party, including treaties with Canada and
France), cert. denied, 537 U.S. 1000 (2002). While proceeding under such treaties may be difficult, the
position of the Service is that writs ofNER "should only be considered when all other administrative and
judicial remedies would be ineffective." Litig. Guideline Mem. GL-7 (Apr. 17, 1990), 1990 WL 1086225;
see discussion supra Part V.E.
!56 PITTSBURGH TAX REVIEW [Vol. 7:103
B. Abandoning the Use of Writs ofNER in Federal Tax Cases
The writ of NER is an unusual hybrid-a quasi-criminal blend of
injunctive relief, indirect civil contempt and other forms of old, and largely
obsolete, forms of civil arrest, such as capias ad respondendum.
344
If the
provisions of the Code were likened to a listing of animal species, the writ of
NER would probably bear the closest resemblance to the duck-billed platypus,
an unusual animal (found only in Australia), fittingly described as "one of
nature's oddest creatures, seemingly assembled from the spare parts of other
animals. "
345
In the case of NER, its English origins as a royal prerogative and its
fundamental purpose (to prevent travel for political reasons) make its present-
day application in tax cases difficult to understand. Not only has the original
use ofthe writ as a means of political restraint on travel long been abandoned
as a relic,
346
the original reason for including NER as part of the Revenue Act
of 1918-combating would-be tax evaders who wished to profit from World
War I-no longer exists; nor is there much to suggest that writs ofNER were
ever successfully used for that purpose. In fact, the few reported tax decisions
involving writs of NER suggests the contrary; namely, that the usefulness of
NER as a device to combat tax evasion, in general, or war profiteering, in
particular, has rarely, if ever, been effective.
Perhaps the sparing use of writs of NER can be justified by a desire to
send a message by employing the most powerful form of a tax "attention
getter" short of criminal charges. But sending that type of a message to twenty-
first century United States taxpayers hardly seems necessary or worthwhile.
This is largely because the use of writs ofNER creates the potential for
a fundamental perception problem on the part of the public-the belief that
. "debtors' prison" exists for those who, for whatever reason, cannot afford to
pay tax. Indeed, the Service has tacitly recognized the existence of those sorts
of perception problems in the context of "parallel investigations" of criminal

344. The tenn capid ad respondendum is defmed in BLACK'S LAw DicrJONARY 221 (8th ed. 2004).
With respect to the obsolescence of civil arrests, it has been observed that "[a]rrest on civil process bas been
criticized and proposals have been made for its abolition. It has been said that the circumstances in which
arrest and imprisonment on civil process are avai1able are so narrowly restricted that, for all practical
purposes, this mechanism is virtually extinct .. . .'' 5 AM. JUR. 2d Arrest 53 (2009) (footnote omitted).
345. Susan Brown, Top Bil/ingfor Platypus at End of Evolution Tree, 453 NATURE 138, 138 (2008).
346. See Bridge, supra note 214, at 92 ("It may be concluded that the writ of ne exeat regno survives,
in so far as its original political use is concerned, more as a historical relic than as a legal tool of any
utility.").
2010] WRIT OF NE EXEAT REPUBLICA 157
and civil tax matters, presumably because juries (or the public) could view
criminal tax prosecutions as the byproduct of an inability to pay.
347
In any event, the use of a writ ofNER unnecessarily raises constitutional
concerns because, unlike other well-defined methods of civil tax enforcement,
the taxpayer's liberty is at stake. Those concerns are only heightened by the
hazy historical basis for seeking writs ofNER in tax cases, and by the fact that
"civil arrests" in tax cases are used to enforce tax laws that can sometimes be
exceedingly complex and difficult to understand.
348
In the final analysis, the effect of a writ ofNER, when used in a civil tax
case, is to command a taxpayer to "pay up" or face confinement. That concept,
like the writ of NER itself, seems like an artifact from the Middle Ages-so
much so that, in the context of a civil tax case, the potential problems with the
"pay or be jailed" scenario militates in favor of abandoning the use of writs of
NER altogether.
See, e.g., I.R.M. 5.1.5.2(5) ("Because civil enforcement actions ... may imperil the criminal
investigation or subsequent prosecution, the consequences of civil enforcement action must be carefully
weighed."); I.R.M. ("Experience has demonstrated that attempts to pursue both the criminal and
the civil aspects of a case may jeopardize the successful completion of the criminal case.").
348. See, e.g., Lansdown v. Co'mm'r, 96-1 U.S.T.C. 50,025, at83,08l, 77 A.F.T.R.2d491, 502(10th
Cir. 1995) (As evidenced by our discussion above, the tax laws are exceedingly complex and difficult to
apply. To fmd petitioner negligent for not knowing in advance how these roles ultimately would be applied
to his situation is unfair."); see also Farley P. Katz, The Infernal Revenue Code, 50 TAX LAW. 617, 617
(1997) (collecting quotations from court opinions discussing the complexity of various Code sections; while
noting that the compilation was not intended as a general indictment of the Code or the tax laws, and
recognizing that there are certainly many understandable and workable tax provisions in the Code, the article
states that "there is an indisputable need for simplification of certain areas of the tax law").

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