Congress has given the IRS potent tools to collect taxes. The IRS can impose liens on a taxpayer’s property and can seize it through levy, all without prior judicial authorization. But for taxpayers who attempt to move or keep their assets offshore to circumvent IRS collections – beware of the writ of ne exeat republica.
The writ of ne exeat republica effectively prevents a person from leaving the Court’s jurisdiction and the IRS has demonstrated that where its efforts to seize a taxpayer’s property to collect his past due taxes, the IRS essentially seized the taxpayer instead.
Predictably, it takes some fairly serious misbehavior to lead a court to bar someone from traveling – and that is what happened to Charles and Kathleen Barrett of Colorado. United States v. Barrett [Case No. 10-CV-02130], 2014 U.S. Dist. LEXIS 10888 (D. Colo. Jan. 29, 2014).
Unknown to the Barretts, the government secured a writ of ne exeat republica just before the Barretts had departed for Ecuador. The government then received a default judgment and an order directing the Barretts to repatriate funds that the IRS believed that the Barretts had wired to Ecuador. Thereafter, the Barretts not knowing that this writ and order were outstanding returned to Colorado to attend their daughter’s wedding.
Take-down At The Airport
After attending their daughter’s wedding, on the morning of August 8, 2013, Charles and Kathleen Barrett were preparing to leave Colorado for the return trip to Cuenca, Ecuador. Charles was leaving from the Denver airport while Kathleen was flying out of Grand Junction, Colorado, where she had been visiting her mother. Both were heading to Miami where they would meet their sons for the flight back to Ecuador.
After Charles checked in at the airlines counter at the Denver Airport, he went to the gate an hour before his flight was scheduled to board. Just as he settled into his seat in the waiting area he was surrounded by three men, one of whom showed his U.S. marshals badge. “You’re not flying anywhere today,” one of the marshals told him. “The judge wants to see you.”
Charles turned over his passport and airplane ticket and was led out of the airport in handcuffs. Four times, Charles recalls, he asked to call to an attorney to represent him before the judge. Four times he was put off. He informed the marshal that his sons, Nathaniel and Jonathan, were waiting for him at the Miami airport and was told that the marshals would contact them. Despite the drama and rough treatment, Barrett understood why he was being taken away but felt confident the issue could be resolved quickly once he talked to the judge.
You see the Barretts owed the IRS money from 2007 when they received a large refund of $217,615 that they were not entitled to as a result of a tax return filed without their signatures by their tax preparer. When contacted by the IRS about this, they filed a corrected return in 2009, but the Barretts kept the money.
On September 1, 2010, the IRS sued the Barretts in Colorado federal court, and eventually obtained a default judgment against them for $351,197 (which amount included penalties and interest). Subsequently, three separate times thereafter the Barretts tried to vacate the default judgment, and three times they failed.
So far, so what — if the Barretts had simply paid their taxes, this would have been an obscure case for a relatively small amount and probably nobody except the parties concerned would have cared much. But the Barretts decided that they weren’t going to pay, and that’s where it starts getting interesting. Apparently the Barretts decided to move to Ecuador and that they deposited their erroneous refund check first into their domestic bank account, and then moved it to another account, and then wire-transferred funds to an account with a bank in Uruguay. The government believed that the Barretts had spirited the $217,615 out of the country.
IRS Action To Get The Offshore Money Back
By this time you are probably thinking, “Yeah, and good luck with the IRS collecting any of that money, against a couple living outside the U.S. with bank accounts outside the U.S.”
But, in the off-chance that the Barretts might show up again, on December 2, 2010 the IRS went to a U.S. District Judge, and asked that an order by the cool name of writ of ne exeat republica be issued against the Barretts to keep them from leaving the U.S. (although they were already long gone), requiring them to post a bond for the $351,197, requiring they be detained by the U.S. Marshal Service pending a hearing, requiring that they produce all their books and records of financial assets and accounts, and restricting them from further transferring or alienating their property.
The writ of ne exeat republica is a little known and seldom used judicial tool dating to the 18th century English royal court. Originally intended to restrict travel for political reasons, its occasional use in the U.S. court system, primarily in family and tax law cases, has often come under question. When it has been invoked, it has been strictly as a civil law action.
Of course, this writ was without little immediate effect since the Barretts had vamoosed. The writ was issued without the Barrett’s knowledge, by the court on an ex parte basis, which meant that only the IRS showed up to talk with the Judge, and the Barretts were unrepresented — a disadvantage inherent to fleeing the country.
The Federal Court Weighs In
So when Charles was taken into the courtroom on August 8, 2013, he stood before U.S. District Magistrate Judge Boyd Boland who issued the writ of ne exeat republica, ordering the Barretts to turn over their passports and preventing them from leaving the country. Judge Boland read Charles his rights and told him he was not allowed to speak.
An attorney for the IRS asked Judge Boland to put Barrett in jail or post bond of $253,000. The judge responded that the writ did not authorize jailing, only the confiscation of passports and other travel documents. The IRS attorney persisted, claiming the Barretts were flight risks, and the judge finally relented. Charles was fingerprinted and booked into federal jail. However, no charges were filed.
Meanwhile, 200 miles west of Denver in Grand Junction, Kathleen was experiencing the same treatment that Charles was in Denver. She too, was booked into a local jail. It was two days before Charles and other family members knew where she was.
In Miami, not knowing what had happened to their parents, Nathaniel and Jonathan boarded an American Airlines flight to Quito. The U.S. Marshals had not bothered to inform them that their parents had been detained. Assuming that there was a scheduling problem and that the family would be reunited in Ecuador, they remained on the flight.
Kathleen and Charles saw each other for the first time in five days on Tuesday August 13th, at a hearing in the federal courthouse in Denver. Their attorney immediately demanded that the handcuffs and leg irons be removed. This is a civil not a criminal case, he argued and Judge Boland agreed. The marshals, however, refused to obey the judge’s order based on instructions from their superiors. Charles and Kathleen sat through the hearing literally in chains.
On October 11, 2013, the Barretts appeared for a hearing before a U.S. Magistrate Judge. At this time, the IRS identified the assets they believed the Barretts had control of that were available to pay their debt — about $20,000 in cash in various accounts, some real estate in Ecuador, a bunch of minority stock interests in a nutritional food company apparently doing business in Central America, various small assets such as coins and jewelry, a truck and a horse.
Mrs. Barrett claimed that most of the assets were either worthless or not accessible, and at any rate their total value was not much more than $48,000. Of course, these are just the assets that the IRS was able to identify.
As with nearly all the debtors in similar cases involving offshore assets, the Barretts’ biggest failure was their own credibility. Specifically:
The Barretts had obtained a large tax refund through fraud. While they tried to claim that a “maverick accountant” signed their names to the return, when shown their signatures on their returns they claimed that the government forged their signatures. Nonetheless, the Barretts kept the fraudulently-obtained refund.
The Barretts had not voluntarily paid anything to their creditor, and had “loaned” $20,000 to their son just to keep it out of their creditor’s hands.
While basically claiming poverty, the Mr. Barrett had his credit cards paid from an undisclosed account in the U.S., and had wired to another of his sons from $1,500 to $3,000 per month over a 2 to 3 year period.
There was evidence that the Barretts had wire-transferred money between various accounts, and eventually withdrew $48,720 by a cashier’s check, when a wire-transfer failed.
The Barretts had refused to provide bank account or wire-transfer information for their various accounts.
Mrs. Barrett sold shares in a company that was not disclosed to the U.S. Magistrate Judge for $40,000 while at the same time claiming that her sole income was the $430 she received from Social Security. Some of this money was used to pay the Barrett’s legal fees.
After reviewing the available evidence and applying a multifactor test that considered the merits of the governments underlying tax claim, the relative harm to each party and the public interest to be served by the writ, the district court concluded that the writ should stay in place. Ultimately, the court concluded that the Barretts had to stay put until they paid the balance of their tax debt (which after applying prior payments and credits now only amounted to $16,000) and provided satisfactory evidence that their Ecuadorian property truly was unmarketable.
So don’t think that if you flee the country to dodge your debts or avoid reporting your undisclosed foreign bank accounts you will not have any problems when you come back. A U.S. Marshal or your local friendly sheriff will be waiting for you.
If you are in danger of wage garnishments or bank levies or having a tax lien placed against your property, stand up to the IRS and your State Tax Agency by getting representation. Tax problems are usually a serious matter and must be handled appropriately so it’s important to that you’ve hired the best lawyer for your particular situation. Let’s meet on TaxConnections where we are highly skilled in handling tax matters and can effectively represent at all levels with the IRS and State Tax Agencies including criminal tax investigations and attempted prosecutions, undisclosed foreign bank accounts and other foreign assets, and unreported foreign income.
Original Post By: Jeffrey Kahn