United States of America, Plaintiff v. Donald L. Lipper, Defendant.
Counsel: G. William Hunter, United States Attorney, Jeffrey S. Niesen, Michael D. Howard, Assistant United States Attorneys, Tyler G. Draa, San Francisco, Calif. 94102, for plaintiff. Douglas Montgomery, 707 Haight Street, San Francisco, Calif. 94117, for defendant.
Findings of Fact and Conclusions of Law
SCHNACKE, District Judge: An application for a Writ Ne Exeat Republica duly came on for hearing before the Court 10:00 A.M. Monday, March 23, 1981. The United States was represented by G. William Hunter, United States Attorney for the Northern District of California, Jeffrey S. Niesen, Assistant United States Attorney, Chief, Tax Division, and Michael D. Howard, Assistant United States Attorney. Donald L. Lipper was represented 1981 U.S. Dist. LEXIS 11766 81-1 U.S. Tax Cas. (CCH) P9330 47 A.F.T.R.2d (RIA) 1289 at 2 by Douglas Montgomery, Esq. Based on the facts presented to the Court at the March 23, 1981 hearing, the pleadings and other documents on file with the Court, and the arguments and representations of counsel, the Court hereby makes the following findings of fact and conclusions of law.
1. In February 1981, the United States filed a petition with the United States District Court for the Northern District of California requesting the Court to issue Donald L. Lipper an Order to Show Cause why he should not be compelled to comply with an internal revenue sommons which was issued in an attempt to find information necessary for the Internal Revenue Service to prepare tax returns of Donald L. Lipper for the years 1976, 1977, 1978 and 1979.
2. The Honorable Marilyn H. Patel issued the requested Order to Show Cause and ordered Donald L. Lipper to appear before the Court on April 6, 1981. The Internal Revenue Service made numerous attempts to serve the Court Order upon Donald L. Lipper but Mr. Lipper refused to answer his door, refused to return phone calls left with his answering service by the Internal Revenue Service and refused to respond to mail inquiries by 1981 U.S. Dist. LEXIS 11766 81-1 U.S. Tax Cas. (CCH) P9330 47 A.F.T.R.2d (RIA) 1289 at 3 the Internal Revenue Service.
3. On Thursday, March 19, 1981, the United States received information that within the last two months Donald L. Lipper had sold two real estate properties, his only remaining such holdings in the United States for about $ 900,000. The United States was further informed that Mr. Lipper was liquidating all of his furniture and personal assets, and that he was in possession of approximately $ 350,000 in cash. The 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.
4. The United States Attorney's Office obtained a description of Mr. Lipper and was advised that he sometimes used the alias of "Terry."
5. Upon receiving the aforesaid information, Michael D. Howard, Assistant United States Attorney for the Northern District of California, Tyler Draa, a law clerk in the Office of the United States Attorney, Kenneth Chan, a Revenue Agent of the Internal Revenue Service and James Skeldon, Special Agent of the Criminal Investigation Division of the Internal Revenue Service, proceeded to 506 Haight Street, San Francisco, California, 1981 U.S. Dist. LEXIS 11766 81-1 U.S. Tax Cas. (CCH) P9330 47 A.F.T.R.2d (RIA) 1289 at 4 the last known address of Mr. Lipper.
6. Upon ringing the doorbell at 506 Haight Street and identifying themselves to the person who responded through an intercom system, the representatives of the United States were informed that Mr. Lipper had permanently left 506 Haight Street a few days earlier. The voice on the intercom identified himself as a workman who was effecting repairs on the flat for the new owner of the building. Further inquiries about Mr. Lipper were made over the intercom, and the "workman" was asked to come to the door. This request was refused, and the "workman" refused to speak any further.
7. The four United States officials then made inquiries of people in the neighborhood as to where Mr. Lipper might be located. The officials learned that Mr. Lipper had been selling and/or giving away all of his personal assets. The officials also confirmed their information that the building located at Haight and Fillmore Streets, which contained the 506 Haight Street flat, had just been sold by Mr. Lipper for approximately $ 650,000.
8. Two of the officials located a neighbor who identified himself as John L. Merchant. Mr. Merchant stated that he had recently 1981 U.S. Dist. LEXIS 11766 81-1 U.S. Tax Cas. (CCH) P9330 47 A.F.T.R.2d (RIA) 1289 at 5 purchased the Haight and Fillmore building, and that he did not currently have any workman in 506. Mr. Merchant was then asked to open the door at 506 Haight Street so that the flat could be inspected. This request was refused.
9. The four federal officials then returned to 506 Haight Street and observed two individuals through the glass portion of an alternate entrance to the flat.
10. A man whose appearance matched the description of Mr. Lipper given to the Government came to the door. He denied that he was Mr. Lipper, claiming instead to be a workman, and informed the officials that he was busy and that they should therefore leave. In response to several additional denials, the U.S. officials asked the "workman" to give them his name. The workman responded "Terry" -- the alias which the Government had previously been informed was used by Mr. Lipper. "Terry" was immediately served with an Order to appear in the United States District Court on April 6, 1981.
11. "Terry" then admitted that he was in fact Mr. Lipper. He then stated that he was leaving the country and would not be available on April 6, 1981, nor would he return to the United States. He then described 1981 U.S. Dist. LEXIS 11766 81-1 U.S. Tax Cas. (CCH) P9330 47 A.F.T.R.2d (RIA) 1289 at 6 the Court Order and the Internal Revenue Service with a number of obscenities and further stated he had not filed tax returns since 1969.
12. Thereafter the federal officials returned to their offices. After locating and contacting various real estate people who had been involved with Mr. Lipper's recent sales and verifying that in January 1981 Mr. Lipper had sold a building for a gross sales price of approximately $ 270,000 and that on approximately March 10, 1981, he had sold what appeared to be his last real estate holding for $ 650,000, the Internal Revenue Service made a $ 183,315 termination assessment against Mr. Lipper for the period January 1, 1981 through March 19, 1981. The assessment was made late in the afternoon of March 19, 1981.
13. In order to preserve its revenue, the Internal Revenue Service, through the United States Attorney's Office, sought an emergency Writ of Entry to 506 Haight Street where Mr. Lipper both resided and conducted his real estate business. A Court Order granting the Writ of Entry was signed at approximately 8:45 P.M. on the evening of March 19, 1981.
14. Several revenue officers of the Internal Revenue Service as well as special 1981 U.S. Dist. LEXIS 11766 81-1 U.S. Tax Cas. (CCH) P9330 47 A.F.T.R.2d (RIA) 1289 at 7 agents of the Internal Revenue Service who accompanied the revenue officers for their protection (the entry was made at night in an area of town which is widely known as a high crime neighborhood) entered 506 Haight at approximately 9:45 P.M. and took control of a number of the items found therein.
15. After entering, they 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.
16. There was almost no furniture in the flat. Furthermore, within the previous 5 months Mr. Lipper had stated in court documents that he owned approximately $ 75,000 of artwork, but none was found in the apartment.
17. A "bill of sale" for what appeared to be most of his kitchenware and utensils was found. The bill evidenced receipts totalling $ 4,000.
18. An automatic phone answering machine was seized. Of the many messages left on it, one caller said: "Good luck on your trip to France." A second caller said: "If you want to get to the South of France 1981 U.S. Dist. LEXIS 11766 81-1 U.S. Tax Cas. (CCH) P9330 47 A.F.T.R.2d (RIA) 1289 at 8 on time, please contact me immediately."
19. The agents found documents which evidenced the fact that Mr. Lipper kept one or more bank accounts in the name of "Leroy von Lipper."
20. On both March 19, 1981, when first contacted, and again on March 20, 1981, while the Internal Revenue Service was removing what was left of Mr. Lipper's items of value, Mr. Lipper again stated to federal officials that he intended to leave the country.
21. Mr. Lipper has admitted he was liquidating all his personal assets so he could "live in France in style."
22. On Friday, March 20, 1981, Mr. Lipper was asked where the notes and/or deeds of trust related to the recent sales of two buildings were located. He stated he did not know and later that he could not remember.
23. The Government was unable to locate any tickets or reservations made by or for Mr. Lipper to France. However, Mr. Lipper stated to Reveue Officer Theresa Koenig he never made advance reservations but merely went to the airports and paid cash for his tickets.
Furthermore, on Friday, March 20, 1981, Internal Revenue Service Special Agent Dennis Hanson overheard Mr. Lipper make a phone call in which Mr. Lipper said 1981 U.S. Dist. LEXIS 11766 81-1 U.S. Tax Cas. (CCH) P9330 47 A.F.T.R.2d (RIA) 1289 at 9 "the IRS is hassling me but it doesn't make any difference because I'll get away anyway." Lastly, Mr. Lipper stated to Revenue Officer Theresa Koenig that not only was he leaving for France but he also intended to stay there permanently and had organized a business there. Mr. Lipper was clearly planning to depart quickly from the United States to France.
24. Mr. Lipper has been involved in numerous real estate transactions over the last 11 years. County records reflect that an estimated 100 transactions involving Mr. Lipper occurred from 1969 through 1981. However, at the time of this hearing, the Government had not had sufficient time to totally analyze these transactions.
25. Based on the aforementioned facts, Jeffrey S. Niesen, Assistant United States Attorney, Michael D. Howard, Assistant United States Attoney,. and officials of the San Francisco Office of the Internal Revenue Service sought the approval of the United States Department of Justice in Washington, D.C., and the Commissioner of Internal Revenue to seek a temporary Writ Ne Exeat Republica to, inter alia , restrain Mr. Lipper from fleeing the country.
26. At approximately 4:15 P.M. Friday, March 20, 1981, 1981 U.S. Dist. LEXIS 11766 81-1 U.S. Tax Cas. (CCH) P9330 47 A.F.T.R.2d (RIA) 1289 at 10 the final approvals to apply for the Writ were received from Washington, D.C., and the United States Attorney's Office made an Ex Parte Application to the United States District Court for the Northern District of California for a Writ Ne Exeat Republica against Mr. Lipper.
27. After reviewing the declarations on file, the memoranda of law, and other items in the file, the Honorable Robert H. Schnacke issued the temporary Writ and scheduled the matter for hearing on Monday morning, March 23, 1981, at 10:00 A.M.
28. At the hearing the above facts were established to the satisfaction of the Court plus the facts set forth below regarding Mr. Lipper's finances and tax liabilities.
29. For the period of 1969 to the present, Internal Revenue Service records indicate that they have no tax returns on file for Mr. Lipper except for the years 1970 and 1971. At no time since 1969 has Mr. Lipper reported any gains from the sale of real property (on Friday, March 20, 1981, Mr. Lipper stated to Internal Revenue Service personnel that it was too tedious for him to prepare tax returns).
30. On Friday, March 20, 1981, Mr. Lipper stated to Revenue Officer Theresa Koenig that he had "made 1981 U.S. Dist. LEXIS 11766 81-1 U.S. Tax Cas. (CCH) P9330 47 A.F.T.R.2d (RIA) 1289 at 11 a lot of money in real estate since 1969." As he stated this, he wrote down on a piece of paper "$ 121 mill."
31. The statement indicating he had "made a lot of money" is consistent with the fact that real estate records of the San Francisco County Recorder reflect numerous transactions.
32. On March 20, 1981, Mr. Lipper stated to Internal Revenue Service employees that "if $ 183,000 is all you want I'll be happy to pay it."
33. Subpoenaes were served on Mr. Lipper's accountant and as a result, prepared but unfiled tax returns for 1973, 1974, 1975, 1977 and 1978 were discovered. No similar documents were found for 1969, 1970, 1971, 1972, 1976, 1979 or 1980.
34. Of the returns which were discovered, none reflected any income arising from real estate transactions of Mr. Lipper.
35. The Government has thus far confirmed that Mr. Lipper owned at least 9 real estate properties during the period in question. Purchase and sale prices were only available for four of the properties at the time of the hearing. However, the Internal Revenue Service is continuing its attempts to locate properties owned and sold by Mr. Lipper during the years in question and to determine and 1981 U.S. Dist. LEXIS 11766 81-1 U.S. Tax Cas. (CCH) P9330 47 A.F.T.R.2d (RIA) 1289 at 12 verify the purchase prices for those properties as well as their ultimate sale prices.
36. The Government has discovered a financial statement made out by or for Mr. Lipper for 1976. It indicates rental income of $ 40,000. Because more precise figures have not been verified for 1976, no tax assessment has yet been made for that year.
37. Similarly, aside from the unverified proceeds, if any, from the sale of real property in 1979, the Government has in its possession both a Mastercharge and an American Express credit card application completed by Mr. Lipper and dated June 1979. Both applications state that his income for that year was $ 100,000+". He also stated to the representatives of the Internal Revenue Service that $ 4,000,000 went through his bank accounts in 1979.
38. Because Mr. Lipper's income has not yet been ascertained for 1979 and 1980, no tax assessment has yet been made for either year. This is also true for 1969, 1970, 1971, 1972 and as mentioned above, 1976.
39. On Sunday, March 22, 1981, the Internal Revenue Service made jeopardy assessments against Mr. Lipper in the following amounts:
1981 U.S. Dist. LEXIS 11766 81-1 U.S. Tax Cas. (CCH) P9330 47 A.F.T.R.2d (RIA) 1289 at 13 As noted above, these assessments are based primarily on the prepared but unfiled returns subpoenaed from Mr. Lipper's accountant, but include only two of the real estate transactions of Mr. Lipper due to a lack of further accurate figures as of the time of the hearing.
40. On Sunday, March 22, 1981, the Internal Revenue Service also adjusted its termination assessment for the period January 1, 1981 through March 19, 1981. This assessment was reduced from $ 183,315 to $ 100,705. The adjustment was made because further documentation appeared to indicate the cost basis of each of the two buildings sold by Mr. Lipper were somewhat higher than the Internal Revenue Service had initially believed.
41. The Internal Revenue Service is currently treating Mr. Lipper's income from the sale of real estate as capital gain -- not ordinary income. Because of the lack of time, the Government was unable to establish to its satisfaction which, if any, of Mr. Lipper's sales of real estate were made in the ordinary course of business (thereby generating ordinary income). The tax computations of Mr. Lipper's known real estate sales were then made based on the assumption that the sales generated 1981 U.S. Dist. LEXIS 11766 81-1 U.S. Tax Cas. (CCH) P9330 47 A.F.T.R.2d (RIA) 1289 at 14 capital gain. Accordingly, the Government's present tax figures are lower than they will be if it is determined that one or more of the sales generated ordinary income.
42.After reviewing the facts, the Court is satisfied there is a substantial likelihood that the Internal Revenue Service's tax claim is legitimate. Indeed, the figures represent a nominal estimate of Mr. Lipper's tax liability since to date no assessments at all have been made for 1969, 1970, 1971, 1972, 1976, 1979 or 1980 and all tax computations on the building sales were made at capital gain rates and not ordinary income rates.
43. Because of the complicated facts involving Mr. Lipper's tax liabilities for the years 1969 through 1981, the Court finds it is not an unreasonable restraint upon him to remain in the jurisdiction of the Northern District of California for a reasonable period of time within which he and the Internal Revenue Service can ascertain his civil tax liabilities for the years 1969 through 1981.
44. The United States has already served a Notice to Take Deposition on Mr. Lipper and his deposition is scheduled to begin on Monday, March 30, 1981. The Court is advised that the Internal 1981 U.S. Dist. LEXIS 11766 81-1 U.S. Tax Cas. (CCH) P9330 47 A.F.T.R.2d (RIA) 1289 at 15 Revenue Service has and is devoting substantial efforts to determine Mr. Lipper's liabilities as quickly as possible.
45. The Court is further advised that Mr. Lipper has agreed to and is posting security in the approximate amount of $ 370,000 with the United States of America as security for the currently estimated tax liabilities of Mr. Lipper. Mr. Lipper has been ordered to surrender his passport into the temporary custody of the Clerk of the Court and the Court is advised the passport was delivered to the United States Marshal and the paper-work is being completed to effectuate transfer of possession of the passport to the Clerk of the Court.
46. 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 of Mr. 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 1981 U.S. Dist. LEXIS 11766 81-1 U.S. Tax Cas. (CCH) P9330 47 A.F.T.R.2d (RIA) 1289 at 16 fully expects this matter to be resolved within 120 days after the filing of these findings of fact and conclusions of law.
47. Nothing herein precludes the United States from applying to the Court for modification of the permanent Writ Ne Exeat Republica entered March 23, 1981, should the Internal Revenue Service figures of the tax liability change or should it appear that the other circumstances might warrant modification.
48. Any finding of fact determined to be a conclusion of law is hereby deemed a conclusion of law.
49. The Court has jurisdiction of this matter by virtue of 26 U.S.C. § 7402(a) and 28 U.S.C. § 1651.
50. Section 1651(a) of Title 28 U.S.C. provides that:
[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law.
In addition, Internal Revenue Code Section 7402(a) (26 U.S.C. § 7402(a)) sets forth the jurisdiction and authority of the district court in cases such as this and specifically permits the issuance of a writ ne exeat republica . In pertinent part, it states:
The district 1981 U.S. Dist. LEXIS 11766 81-1 U.S. Tax Cas. (CCH) P9330 47 A.F.T.R.2d (RIA) 1289 at 17 courts of the United States at the instance of the United States shall have such jurisdiction to make and issue in civil actions, writs * * * of ne exeat republica * * * and to render such judgments and decrees as may be necessary or appropriate for the enforcement of the internal revenue laws. * * * (Emphasis added).
51. Because of the exigent circumstances which must be shown, Writs of Ne Exeat Republica are rarely utilized by the courts. However federal courts have unanimously upheld the constitutionality of such writs issued pursuant to Section 7402(a) of the Internal Revenue Code of 1954. United States v. Shaheen , 445 F. 2d 6 (7th Cir. 1971); United States v. McNulty , 446 F. Supp. 90 (N.D. Cal., 1978); United States v. Clough , 33 AFTR 2d 74-650 (N.D. Cal., 1974); United States v. Robbins , 235 F. Supp. 353 (E.D. Ark., 1964).
52. The Writ derives from the Writ ne exeat regnum, a common law prerogative writ which enabled the sovereign to compel an individual to remain within the realm in order to aid in the defense of his country.
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"By the common law, (n) every man may go out of the realm for whatever cause he pleaseth, without obtaining the King's leave; provided he is under no injunction of staying home; (which liberty was expressly declared in King John's great charter, though left out in that of Henry III,) but because that every man out of right to defend the king and his realm, therefore, the king, at his pleasure, may command him by his writ that he go not beyond the seas, or out of the realm, without license; and, if he do the contrary, he shall be punished for disobeying the king's command." United States v. Shaheen, supra at 9, n. 5 (7th Cir. 1971), quoting 1 Cooley's Blackstone (3d Ed.) p. 264.
1981 U.S. Dist. LEXIS 11766 81-1 U.S. Tax Cas. (CCH) P9330 47 A.F.T.R.2d (RIA) 1289 at 18 53. Freedom to travel is a right of constitutional dimension, Aptheker v. Secretary of State , 378 U.S. 500, 517 (1964), which cannot be abridged without due process of law. Kent v. Dulles , 357 U.S. 116, 125-26 (1958); United States v. Laub , 385 U.S. 475, 481 (1967). However, the writ of ne exeat republica restrains individuals' rights of free travel. Thus, while District Courts authority to issue writs of ne exeat republica is clearly without question, the power is seldom exercised.
54. Where the Government seeks to support the issuance of such an extraordinary writ it bears the burden of showing facts and circumstances which warrant civil restraint. United States v. Shaheen, 445 F. 2d 6, 10 (7th Cir. 1971); United States v. Clough , 33 AFTR 2d 74-650, 651 (n.d./ Cal., 1974). The burden on the Government in such a case is analogous to that required to obtain injunctive relief. Shaheen, supra at 10; Clough, supra at 651.
55. In compliance with Rule 65(d) of the Federal Rules of Civil Procedure,
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Rule 65(d) of the Federal Rules of Civil Procedure states in pertinent part that:
[e]very order granting an injunction and every restraining order shall set forth the reasons for its issuance, shall be specific in terms; [and] shall describe in reasonable detail * * * the act or acts sought to be restrained * * *.
the Government has specifically set forth the factual basis and its reasons for seeking a writ of ne exeat republica. It has established that Mr. Lipper has a sizeable, 1981 U.S. Dist. LEXIS 11766 81-1 U.S. Tax Cas. (CCH) P9330 47 A.F.T.R.2d (RIA) 1289 at 19 outstanding tax liability, that Mr. Lipper has liquidated all of his significant assets, that Mr. Lipper has admitted his intention to immediately and permanently leave this country, and that there is a strong likelihood that a substantial portion of Mr. Lipper's assets would be difficult if not impossible to collect absent issuance of the requested writ. The United States has additionally shown that its efforts to ascertain and seek the satisfaction of Mr. Lipper's tax liabilities would clearly be frustrated unless the court grants its request for the writ. In light of Mr. Lipper's obvious attempts to avoid the federal authorities, it is also a distinct possibility that Mr. Lipper will even attempt to thwart the power of the Court to grant the United States any effective relief in its action to collect taxes from Mr. Lipper -- absent issuance of the writ.
1981 U.S. Dist. LEXIS 11766 81-1 U.S. Tax Cas. (CCH) P9330 47 A.F.T.R.2d (RIA) 1289 at 20 56. The defendant's demonstrated intent to immediately leave the country, the marshalling of his assets in a manner which insures his ability to immediately expatriate these assets, in conjunction with the facts set forth in paragraph 54 above, provide a more than adequate basis for the Court to exercise its power pursuant to Internal Revenue Code Section 7402, 28 U.S.C. § 1651; United States v. Shaheen, supra , and United States v. Clough, supra , and to issue the Writ Ne Exeat Republica .
57. A defendant must be given prompt notice of the writ and an opportunity to exercise his or her constitutional rights to an evidentiary hearing before the court. United States v. Clough , 33 AFTR 2d 74-650, 651 (N.D. Cal., 1974). Cf . Rule 65(b) Federal Rules of Civil Procedure. In the case at bar, the defendant was brought before the Court for a full evidentiary hearing within three days of the Court's issuance of the temporary Writ Ne Exeat Republica. Defendant's proffered evidence at the hearing in no way contradicted his earlier statements of intent made to Government officers. The defendant's demonstrated intent to leave the country forthwith and expatriate assets to which 1981 U.S. Dist. LEXIS 11766 81-1 U.S. Tax Cas. (CCH) P9330 47 A.F.T.R.2d (RIA) 1289 at 21 the Government could look in satisfaction of his tax liability remained unchanged at the conclusion of the hearing.
58. The Government must additionally demonstrate the likelihood of its prevailing on the merits of its underlying action. United States v. Shaheen, supra; United States v. McNulty, supra; United States v. Clough, supra .The Government has met this burden.
59. The defendant was afforded an opportunity to exercise his consitutional [sic] right to a full evidentiary hearing before this Court. Based on the evidence presented by the parties, the Court finds that the Government has met each burden imposed upon it in support of its application for a writ ne exeat republica. Accordingly, the writ shall issue. A copy of the Court's order is attached hereto and incorporated by reference.
60. Any conclusion of law determined to be a finding of fact is hereby deemed a finding of fact.