Please Note: The US State Department under John Kerry, who served in Viet Nam, is now charging $2350 to receive any CLN whether one has relinquished or renounced. So if you are coming to this only now, you are SOL when it comes to getting a free CLN.
See also Relinquishing your US citizenship in Germany
Those of us who have participated in the Expat Forum have seen that one of the first things that many many newbies say is, “I am going to renounce my US citizenship as soon as I have my Canadian citizenship.” Now, I want to suggest that one should never renounce their citizenship if they can relinquish it instead. Months ago I wrote a post on this subject, which I provide below.
But first, some explanations: Renouncing is one of seven ways to lose your citizenship. It requires swearing an oath in front of an official of the US government and it now has a $450 fee attached to it. Relinquishing does not require a US government official, for it is one of several acts that a US citizen can perform that can result in a loss of citizenship, provided the person intends to lose it. Then, the former citizen must only inform the State Department, not so as to validate the relinquishing act, but to make sure that the US government understands what your intent was when you performed it.
It has become clear that there are several advantages to relinquishing over renouncing:
(1) Relinquishment takes the act of losing your citizenship out of the hands of the US government. This has two benefits. (a) There should be no fee because it doesn’t require a US government official–it doesn’t take place in a US Consulate–you only go to the consulate to inform them of a fait accompli, and it only takes one visit, unlike renunciation which usually take two visits. (b) This saves you $450, or it should, because you are not requiring the services of the Consulate–you are there only to inform them of your intention when you committed a potentially expatriating act such as making a pledge to a foreign power.
(2) Relinquishment is usually a positive act which cannot be confused with an expatriation to avoid taxes. You do it so that you can take part in foreign government or to vote in the country you live in, not so that you can avoid US taxes.
(3) Relinquishment is not a renunciation of your citizenship, so much as a positive act vis-a-vis your new home and country. It is not a repudiation of your country but an acknowledgement that dual citizenship is an unworkable absurdity. Thus, relinquishment comes with less stigma, potentially.
Finally, a caveat is in order. Don’t do one thing and say another. That is don’t relinquish your citizenship then travel on US passport, pay tax in the US, register your children born abroad as US citizens, or take up a residence or a job in the USA, except as one holding a legitimate permit to reside or work in the US as an alien. If a person does any of these things, the State Department may not accept your relinquishment. Those who desire to lose their citizenship but who have done such things after the relinquishing act, may need to renounce their citizenship after all.
So without further ado, here is my original post, “Renunciation of US citizenship: On avoiding the new $450 renunciation fee (update 2), which explains in greater detail, what would constitute a relinquishing act:
Renunciation of US citizenship: On avoiding the new $450 renunciation fee (update 2)
I’ve been pretty upset that it would cost me $450 to renounce my citizenship now that the US consulate in Toronto has instituted a fee. But today I was looking at the various government websites: Consider this website from the US state department and its explanation of how to renounce US citizenship:
Section 349(a) of the Immigration and Nationality Act (8 U.S.C. 1481) governs how a U.S. citizen shall lose U.S. nationality. Section 349(a) states:
A person who is a national of the United States whether, by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality:(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State; or(6) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense.
Now perhaps it would interest readers to know that this government website is not telling the whole story: The U.S.C. 1481 lists several other ways that a natural born US citizen may lose their citizenship. Here is the full text (emphasis mine):
§ 1481. Loss of nationality by native-born or naturalized citizen; voluntary action; burden of proof; presumptions
(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality—
(1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; or(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years; or(3) entering, or serving in, the armed forces of a foreign state if
(A) such armed forces are engaged in hostilities against the United States, or(B) such persons serve as a commissioned or non-commissioned officer; or(4)
(A) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state; or(B) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years for which office, post, or employment an oath, affirmation, or declaration of allegiance is required; or(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State; or(6) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense; or(7) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.(b) Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after September 26, 1961 under, or by virtue of, the provisions of this chapter or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.
I swear or affirm that I will be faithful and bear true allegiance to her Majesty Queen of Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfill my duties a Canadian Citizen.
An individual who has performed any of the acts made potentially expatriating by statute who wishes to lose U.S. citizenship may do so by affirming in writing to a U.S. consular officer that the act was performed with an intent to relinquish U.S. citizenship. Of course, a person always has the option of seeking to formally renounce U.S. citizenship abroad in accordance with Section 349 (a) (5) INA.
Update 2: Today a consular officer called me from the US consulate in Toronto. She confirmed what I’ve said in this post, that relinquishing US citizenship and renouncing US citizenship are two different processes that are treated in a different manner by the consulate (including the fee structure).
@TheAnimal,
Loss of US citizenship occurs and remains valid independent of tax status. DoS is solely concerned with citizenship status itself.
(a) Being up to date in taxes is not a requirement for relinquishment/renunciation of citizenship.
The 4079 “Request for Determination of Loss of Citizenship” questionnaire has questions about your ties to each country, one of which is “Do you pay taxes?” but it’s for determining degree of attachment one has to the countries, not tax enforcement. Point 10 in the 4081 “Statement of Understanding of Consequences,” is “My relinquishment/renunciation may not exempt me from US income taxation.”
At the meeting, the consulates generally don’t even bring up tax (might remind you relinquishment won’t affect previous tax obligations and/or you need to file 8854, but no discussion or pressure), as it’s not relevant to them and they just focus on their mandate.
Once approved, DoS sends a copy of the CLN to IRS (DoS Manual 7FAM1241).
(b) By June 15 of the year following the relinquishment,the Tax Code requires a person to file the exit tax form, 8854 (on one line of which the person certifies they’re up to date in taxes for the preceding 5 years). Whether they do this or not, the loss of citizenship remains valid.
@Pacifica:
I thought you’d find this snippet of common law precedent interesting from Alberto O. LOZADA COLON, Plaintiff, v. U.S. DEPARTMENT OF STATE, et al., Defendants
http://www.uniset.ca/naty/maternity/2FSupp2d43.htm
“Congress set forth the circumstances under which a loss of nationality certification would issue. Section 349 makes clear that expatriation depends not only on the performance of an expatriating act, but also upon a finding that the individual performed such act “voluntarily” and “with the intention of relinquishing United States nationality.” Id.; see also Afroyim v. Rusk, 387 U.S. 253, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967); Vance v. Terrazas, 444 U.S. 252, 100 S.Ct. 540, 62 L.Ed.2d 461 (1980)”
In other words, doing an expatriating act isn’t enough to presume you aren’t a US citizen..For all practical purposes, you are presumed a US citizen until the DOS says you aren’t even if you did an expatriating act. Granted it’s retroactive to the date of the act *if* they approve a CLN, but until they do, it seems logical enough that you might need to use US passport to enter the US (as some have done) until the DOS says you are no longer a citizen.
The reverse problem with this precedent (which kind of goes against Petros idea that it’s a done deal the moment you take the oath or naturalize, or serve in the foreign army with intent to relinquish, etc) is that you can not be certain you really aren’t a US citizen just because you do the act. The court basically is saying they can retroactively screw you into tax liability if the DOS decides that you are a citizen…hence the importance of getting a CLN if you want the comfort of knowing that you won’t in the future be subject to tax consequences because the DOS issues a finding of non-loss..
Pardon the apparent dyslexia..meant to say
the court basically is saying they can retroactively screw you into tax liability if the DOS decides that you ARE a citizen…hence the importance of getting a CLN if you want the comfort of knowing that you won’t in the future be subject to tax consequences because the DOS doesn’t issue a finding of non-loss..
So she could technically relinquish her citizenship and “drop off the face of the earth”…essentially for all intents and purposes?
@ Tom,
Yeah, that’s how I see it. I see it as two parties involved in relinquishment, sort of like a contract. The person has the right to end the contract, and the citizenship was actually lost by the person at the time of relinquishment; but to be effective for practical purposes, the US govt has to recognise it was.
Re using the US passport between the time of the relinquishing act and applying for the CLN. I know people at Brock have written about that experience — they got the passport after being told (erroneously by DHS) that they had to get a US passport (in spite of having performed a relinquishing act, from which they believed they’d lost their citizenship), but then they found out about CLNs and applied for the CLN shortly thereafter.
So, yeah, it comes down to why did a person get (or continue to use a passport) – because was he voluntarily acting as a USC citizen? Or because he was told to (or believed) he was required to because he was born there and only did it for that reason, not to assert US citizenship?
I think that once a person in the latter situation finds out that CLNs exist, it’s best apply for one reasonably soon after finding out they exist, so it doesn’t look like the person was trying to keep the back door open – it could come across like I knew I could stop using a US passport if I got DOS to say “You’re not a citizen”, but I wasn’t sure I really wanted them to do that.
@Pacifica
Here’s another snippet I found…It’s even more explicit:
20 F.3d 424
Werner T. HEUER, Plaintiff-Appellant,
v.
UNITED STATES SECRETARY OF STATE, Defendant-Appellee.
https://bulk.resource.org/courts.gov/c/F3/20/20.F3d.424.93-4574.html
Moreover, the presence of administrative proceedings is made evident by virtue of the fact that the Department of State must ultimately and necessarily determine when to approve and issue a CLN. Until a CLN is approved and issued, any act of expatriation, whether or not intentional, is simply an act without significance to nationality or status. We emphasize that until such an approval and issuance by the Department of State occurs, the United States national is recognized as such, regardless of what act of expatriation is involved, even if he wishes to disavow American nationality.
@ Tom
Thanks much for this find!
One caution I’d like to make relates to the context of the case. Rather than applying for a CLN based on having voluntarily relinquished years ago, this case was dealing with a man claiming he renounced under duress.
To establish our burden of proof requirement in our CLN applications, relinquishers must remember that our post-relinquishment behaviour goes toward illustrating our intent to relinquish and our belief that we did. So, if one did anything that could be seen as consistent with US citizenship, be prepared to explain specifically why it wasn’t (for example, as the Vancouver and Halifax persons explained why they got US passports after relinquishing).
The Court says here, “Until a CLN is approved and issued, any act of expatriation, whether or not intentional, is simply an act without significance to nationality or status,” But in a backdated CLN application, I believe our acts do have significance, as they are the evidence on which DoS makes its decision.
I think it’s definitely a relevant decision, though, and I can see what you’re getting at. I don’t think it would work to say, “This is why I performed acts consistent with US citizenship for 30 years”, because knowing it implies that you know you should get a CLN. But I think it could work in one’s favour in some relinquishment cases. Thanks again.
@Pacifica…
It seems a little absurd to me in some ways. On one had, the state department is seeking evidence that you were intending to cease being a citizen by stating on your form you entered the US on a foreign passport, didn’t file tax returns, stopped voting, etc. But on the other hand, this court opinion is validating the concept that it is ok for a CBP guard to harass you for crossing over with a foreign passport–since after all, any relinquishment behavior you do is meaningless (and problematic) until you obtain a CLN.
@Tom, @pacifica,
…and may be used against you by specific, over-zealous border personnel. Not likely, but here’s their permission to do so.
Hi, everyone. I recently relinquished my US citizenship and got my CLN and am so grateful for the help I received here along the way. I’ll soon submit the story of my personal experience to add to this site.
A while back I asked about filing taxes after relinquishing. I relinquished in September of 2012 on obtaining British citizenship, completed the paperwork at the consulate in late January of 2013 and had my CLN filled out and consulate seal applied then, and it was approved and stamped in the US in February 2013 and sent back to me. The CLN says “she thereby expatriated herself on (Date) 09-**-2012 under the provisions of Section 349(a)(1) of (The Nationality Act of 1940)”
I spoke to a really rushed employee at the IRS office in London and he told me that I’m supposed to file a 1040NR for the period up until my relinquishment date in September and also an 8854 up to that same date. After researching online that just doesn’t sound right. Pacifica777 gave me great advice last time I asked this, which I trust a lot more than the IRS employee’s, but at that point I’d thought the whole process would be done in 2012, not running into 2013, so I’m now confused about what to file and when. Any help would be really greatly appreciated.
Extra info: I’m up to date with filing my previous US tax returns. My total income was under $11,000 in 2012. I never had more than $5,000 in foreign bank accounts at once. And in both September 2012 and January 2013 my total assets were less than $5,000.
@Averno
You file a 1040 (regular) for everything up to your relinquishment date and a 8854 by June 15 2013 and mail a copy of the 8854 to the Philly office. If you have any US Source income after your relinquishment date, you’d fill a 1040NR for any US source income received after that date as well.
@Avermo, Sorry…Just noticed your dates-the IRS says your relinquishment date is the date you informed the embassy/consulate (January 2013), so actually fill out just a regular 1040 for 2012 due June 15 2013.
For 2013, fill out a 1040 up to the date of your January notification of the embassy/consulate and 8854, mail a copy of that to the philly office, and a 1040NR for any US Source income after the date you went to the embassy/consulate. This 2013 paperwork isn’t due until June 15 2014 (and you can’t fill it out now anyway since the forms aren’t available yet.
Eek, please don’t take my advice over an IRS employee’s. 🙂 I do try to stick to only saying what I’m sure of (rarely comment if I’m not, but if I do, I point out that I’m not). But I certainly wouldn’t trust an IRS employee blindly if something they said didn’t sound right either.
It’s certainly my understanding that you file the 1040 covering up to the day before the consulate was notified of the relinquishing act, date of notification being Jan 2013 (877A, Tax Code). Several people here are in a situation like yours, relinquished post-1994, and that is what I believe they’ve been doing as well. So, they’ll probably weigh in on this from experience, and I think corroborate this.
Happy to be of help.
Most importantly, CONGRATULATIONS on your CLN!
Hm, the day I first notified the consulate, or the day I appeared in person and signed the forms? I first notified them by email (which I have a copy of) in October and explained that I’d relinquished voluntarily by accepting another citizenship with the intent of relinquishing my US citizenship, and that I knew it was irrevocable. I then had to wait for their next available in-person appointment in January to sign the forms in front of a consular officer.
I’d definitely be interested in what other people have filed. The employee didn’t sound sure of himself, which is why I got worried. In general I’ve found it so difficult to find information on relinquishing and renouncing, and this site has been infinitely more useful than official gov websites, so if other posters on here haven’t had any problems with the way they’ve filed, that’s what I want to emulate.
Thanks for the congrats. 😀 It feels amazing.
877A defines notification as the day you made the formal notification (signed the forms).
I made a mistake in my comment just above, which I’ve corrected. It should have read file the 1040 up and including the day before expatriating. I’d accidentally typed 1040-NR. [You need only file an 1040-NR if you have US income after expatriating, and would only report US income on that, and that would cover expatriation day through December 31st.]
As I understand it, the 1040 covers up to and including the day before expatriation, but the 8854 covers your assets on the day of expatriation. Weird, but this whole thing is.
Where does relinquishing take place? I understant it doesn’t happen in a US consulate. Can a Canadian born dual relinquish or only US born duals? Do you still need to back file with the IRS?
New to all this, sorry
Glad you’re both in agreement now, ’cause that makes me feel much more secure. So this year I’ll file the 1040 for all of 2012. Then in 2014 I’ll file the 1040 for the few weeks of 2013 up until the day before my consulate appointment, as well as my 8854, and also send a copy of the 8854 to the philly office. The only US-sourced income in the rest of 2013 will be about 20 cents in interest in my US bank account. Do I need to file a 1040-NR for that, or is it under a certain threshold, as the income being reported on the 1040 for 2013 will be under $1,000?
Thanks again so much. I just called the IRS office in the US as well, and the woman on the phone said that they don’t give advice to non-US citizens. I couldn’t think of a cutting reply at the time, but argh it made me mad. The consular officer who handled my relinquishment said I should ring the IRS, their website said it offered an advice line for “taxpayers,” and I specifically called the International dept where they had menu options for things like ITINs, so surely they talk to non-US citizens. Once again just made me so thankful I could come and get advice here.
@nonono,
It is confusing. Hope this helps a bit.
There’s 5 relinquishing acts we’re concerned with here (6 and 7 have to do with stuff like war and treason).
Renunciation is actually 1 of the methods of relinquishment, the only one where the relinquishing act takes place at a US consulate, so the act and the notification are simultaneous. Immigration and Nationalities Act, 349(a)(5).
For the other 4 methods of relinquishment, you perform the act and then notify a consulate of it
Most of us who relinquished were born US-only, and relinquished by naturalising in another country voluntarily with the intention of ending our US citizenship simultaneously. Immigration and Nationalities Act, 349(a)(1). Which a person can’t do if they’ve been a Cdn citizen all along since birth. However, persons who are dual since birth are exempt from exit tax (still have to fill out the forms, though).
However, if a person is born a dual Canada-US citizen, they still may have relinquished their US citizenship if they did any of the following voluntarily with the intention of ending their US citizenship:
(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years; or
(3) entering, or serving in, the armed forces of a foreign state if
(A) such armed forces are engaged in hostilities against the United States, or
(B) such persons serve as a commissioned or non-commissioned officer; or
(4) (A) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state; or
(B) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years for which office, post, or employment an oath, affirmation, or declaration of allegiance is required;
@nonono,
Relinquishment and renunciation do take place at a US Consulate (outside the USA). There is good information for you to learn all about this at http://isaacbrocksociety.ca/consulate2/ (click on Consulate Report Directory link). You can also see all of the relinquishments and renunciations reported to Isaac Brock at the link here: http://isaacbrocksociety.ca/relinquishment/, including the CLN’s (certificates of loss of nationality). All US citizens of any description make their appointments with a US consulate. Where are you located, nonono?
(or from the author and maintainer of that link, pacifica777, as I now see you have)
Good point you clarified, Calgary!
In renunciation both the relinquishing act and notice of the act take place at a consulate.
With any other method of relinquishment, the relinquishing act itself does not take take place at a consulate. But the person still must go to a consulate to do the notification of it (filling out the forms, meeting with a vice consul — short meeting, btw — and signing the forms in his/her presence).
@Calgary411
I’m in Alberta
@avermo,
IRS tax advice to international taxpayers is next to non-existent a the best of times. I wish you had been quicker on your feet with a cutting reply. The arrogance of their disdain for you, you unworthy ‘non-US’ person, is so unprofessional. Be thankful you’ve left.
So, nonono, Calgary will be the consulate nearest you. That is where my husband, my daughter and I renounced. They are good to deal with. Here is information regarding the Calgary consulate / their procedure differs slightly from some others. You can read of the experiences of others with the Calgary consulate, starting on page 16 of the Consulate Report Directory link at: http://isaacbrocksociety.ca/consulate2/.
You can email them with your request for an appointment at Calgary-ACS@state.gov. There will be more of a wait than previously for a Calgary appointment — they only do these appointments on certain days and they have been getting people coming from BC, as the Vancouver consulate process is much more cumbersome than Calgary’s, requiring two appointments instead of the usual one of most other consulates.
@calgary411,
Thanks for the support. I wish I’d been faster too. I was so unprepared to be treated that way, but afterward came to the same conclusion that it makes me even more glad to get away from it, and I look forward to never having to deal with them or even think of them again.
I am going to Van in June to relinquish my US citizenship and was not expecting to have to update my US taxes. My Canadian acct attended a seminar on this where he learned that if you relinquish not renunciate you did not have to catch up on your taxes. I have never filed because I did not know I needed to. I also have never filed an fbar, I never heard of this until late 2011 when I read something in the paper. I was then so upset and ‘scarred’ I did not even go to my mother’s funeral in Nov 2011. I came to Canada in 1972 when I was 16 (married a Canadian) In Jan 2006, I became a citizen assuming I would lose my US citizenship I did not want to be a US citizen, I love Canada and have considered myself a Canadian for over 30 years. I have not been to the US for over 20 years and have nothing to do with the US. Do not have a US passport just a Canadian. I am needless to say very nervous about my appointment and want to know if there is anything I should bring – other than Canadian Passport? There is so little help with this.