FREEDOM TO TRAVEL AND THE IRS

 

“The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment. […] Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, maybe necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.”

-Justice William O. Douglas, Kent v. Dulles, 357 U.S. 116 (1958)

Few U.S. citizens would think that getting into a tax dispute with their government is an insignificant event.  But probably even fewer realize that if they do so, they may also lose their right to travel abroad.

How can that be? A tax dispute with Uncle Sam is not normally a violation of criminal law. Sure, we expect criminals, or even those merely accused of crimes and awaiting trial, to have their movement restricted, particularly if they are deemed to pose a flight risk. If criminal charges have been filed, then there has been some semblance of due process in an arraignment hearing where a prosecutor may argue there is a flight risk, and a defendant’s attorney can rebut that argument, and a judge can make a decision.  But where is the due process before any charges have been filed, and there is merely an allegation by the IRS that money is owed the government? Who would believe that they could lose their passport over a disagreement such as the valuation of a business, or a charitable donation, or even whether they had taxable gain or not on the sale of their home?  What about unpaid ACA individual mandate penalties that accumulate year after year?

Sure enough, in 2011 Congress considered H.R. 4348 and S. 1813, signed into law by President Obama in July 2012, that created a new statutory means of withholding issuance of a passport or declaring an existing passport invalid, based upon a tax beef with the IRS.

If you have what is deemed a “seriously delinquent tax debt” in excess of $50,000, the IRS will now send a certification to the Secretary of the Treasury of such debt, who will forward it to the Secretary of State in order to implement a “denial, revocation, or limitation of a passport.” Welcome to Chapter 75 Subchapter D §7345 of the Internal Revenue Code.  The Secretary of State will be invoking the authority of the Passport Act of 1926 (22 U.S.C. §211a) to revoke or deny your passport.

Similar restrictions or prohibitions on overseas travel and use of a U.S. passport have been imposed for having overdue child support payments, under 42 U.S.C. §652(k). In Eunique v. Powell, 281 F.3d 940 (9th Cir. 2002), the court’s three judges did not agree what level of scrutiny and therefore what level of governmental interest was required for allowing regulation of a citizen’s movement under the 5th Amendment Due Process right. However, two of them were able to agree that it was not a fundamental right and therefore strict scrutiny was not required, and Eudice Eunique was denied the right to travel overseas, including to visit her sister in Mexico. In the 2-to-1 decision, dissenting Judge Kleinfeld wrote,

If Ms. Eunique were a murderer who had done her time, she could get a passport. But a person delinquent in paying child support is punished by denial of a passport. All debtors should pay their debts. Debts for child support have special moral force. But that does not justify tossing away a constitutional liberty so important that it has been a constant of Anglo-American law since Magna Carta, and of civilized thought since Plato. We should reverse. To constitutionally deny so important a liberty as the right to travel, a statute must be more narrowly tailored to protect the important government interest, with no more interference than necessary.

What made the court’s decision particularly ironic was that Ms. Eunique was, in part, traveling abroad seeking better employment opportunities, by which she might be better situated to pay her child support debt.

There are other provisions that limit who will receive a U.S. passport, but other than ones that require U.S. citizenship, and provision of pertinent identifying information, they tend to deny a passport only for criminal concerns. For example, a passport would be denied to someone already convicted of sexual tourism and related crimes under 18 U.S.C. §2423.  And even that provision has a humanitarian exception!

So what constitutes a “seriously delinquent tax debt”? Any outstanding debt under Title 26 for which a notice of lien or a notice of levy has been filed.  If you’ve (1) arranged and are making timely payments under a payment plan and (2) the debt collection is suspended because of a pending Collection Due Process hearing under §6330, or relief under §6105(b), (c) or (f) has been requested or is pending, your debt is excluded from the definition.

The apparent ease and velocity with which we are sliding down a slippery slope in allowing restrictions in the right to travel is distressing, particularly to those of us who recall the Berlin Wall in an active condition. We’ve gone from disallowing overseas travel to certain hostile countries, or during time of war, or for criminal offenses or prevention of flight from criminal prosecution, to more mundane and civil concerns such as inability to pay child support debts, or worse, merely disputing debts with our government.

In Kent v. Dulles, Justice Douglas wrote that the Court did not need to address the Constitutionality of the Secretary of State’s actions, but only whether they were authorized by Congress. Here, there is little room to doubt that Congress has authorized §7345.