Tuesday, July 27, 2010
Anthony E. Rebollo (Richardson Plowden & Robinson, Columbia, SC) has published The Civil Arrest and Imprisonment of Taxpayers: An Analysis of the Writ of Ne Exeat Republica, 7 Pitt. Tax Rev. 103 (2010). Here is the 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. As a longstanding, fundamental procedural provision of tax law, one might assume that there is little to say about § 7402 at this point. Yet contained within the statute is a reference to ne exeat republica (“NER”), an obscure writ that is ancient, infrequently used and, historically, a stranger to tax law. When issued, however, a writ of NER can have dire consequences.
The specific reference to NER in § 7402 raises a number of questions, starting with the most basic: “What is a writ of NER?” In short, a writ of NER is used to obtain “equitable bail” and, absent the payment thereof, to effect a “civil arrest.” This Article analyzes the use of writs of NER 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 uses 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 of NER should still be used as a tax compliance measure (Part IX.)