A Writ Ne Exeat Republica (What is the IRS Required to Prove)

A Writ Ne Exeat Republica Overview

While the Internal Revenue Service has many different options available when it comes to seeking enforcement of unpaid tax and penalty liabilities, the Writ Ne Exeat Republica is one of the least common and most lethal — if for no other reason than its ability to stun and immobilize a taxpayer. Unlike an IRS Levy, Lien, or Seizure – which remain focused on the accounts and assets of the taxpayer – this particular type of writ focuses on the taxpayer himself. More specifically, it may prevent the taxpayer from leaving the jurisdiction until a tax liability has been resolved. Let’s take a walk through the basics of a Writ Ne Exeat Republica.

26 U.S.C. 7402 (a)

• • (a) To issue orders, processes, and judgments

    • • 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 laws. The remedies hereby provided are in addition to and not exclusive of any and all other remedies of the United States in such courts or otherwise to enforce such laws.

28 U.S.C. 1651

• • • (a) 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.

    • (b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.

Internal Revenue Manual

The Internal Revenue Manual breaks down the process the IRS uses to pursue a Writ Ne Exeat Republica. It is not a common type of writ and there are specific procedures that must be followed.

As provided by the IRM in pertinent part:

Writ Ne Exeat Republica is an action authorized by IRC §7402(a).

1. 1. • Writ Ne Exeat Republica is the appropriate suit action when the taxpayer:

        • Is about to leave the U.S. and is unlikely to return to the U.S., or

        • Has left the United States but is likely to return and may be subject to detention by the writ, and

        • Has conveyed or concealed cash or other property so that it may be taken out of the U.S.

      • A Writ Ne Exeat Republica is an action against a person, not property. It is a temporary remedy, and not intended to operate as a perpetual restriction upon a taxpayer’s freedom of movement.

      • Writ Ne Exeat Republica is usually filed in conjunction with some other civil action against the taxpayer such as a Suit to Foreclose the Federal Tax Lien, a Repatriation Order, or a Summons Enforcement. The purpose of a Writ Ne Exeat is to preserve the court’s power to provide a means of protecting the government’s ability to collect the tax by another means. The revenue officer will have to show that the other civil action they propose will not be enforceable unless the defendant is prevented from removing himself or his assets from the country.

      • Consider these factors when determining whether or not to file a Writ Ne Exeat Republica:

• • • • • Taxpayer has a large valid tax liability,

        • Taxpayer has transferred, or is in the process of transferring, substantially all of his assets to a location outside the United States,

        • Distrainable domestic property and other property reachable without the writ are insufficient to satisfy the tax liability,

        • Other proposed civil action will not be enforceable unless the taxpayer is prevented from removing themselves or their assets from the United States,

        • Taxpayer established residency outside the United States or intends to do so,

        • Taxpayer’s assets cannot be reached absent the issuance of the writ.

    • Before recommending a suit seeking a Writ Ne Exeat Republica:

• • • • Exhaust meaningful enforcement against domestic property.

      • Document the taxpayer’s location.

      • Document taxpayer attempts to conceal or gather property in anticipation of transfer.

      • Document time and location of likely return if the taxpayer is out of the country.

• • • If the taxpayer is not in the United States, secure evidence they are likely to return at a specific time and place. This is needed to establish jurisdiction. It is also important to demonstrate the taxpayer is expected to remain in the U.S. for a short period of time. If the taxpayer is returning to the U.S. permanently, a Writ Ne Exeat Republica is not appropriate. Sources for this evidence include:

• • • • A response to a Treasury Enforcement Communications System (TECS) request to be notified if the taxpayer submits any documents relating to returning to the United States

      • Court records of pending required appearances in ongoing cases

      • Third parties

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