I was born in the States, living half of my growing-up years (with many good memories) on each of the East and West coasts. The present U.S. is not the country I grew up in however. I am now retired from the work force at 68 years old, wanting to live a simple life without the stress the issue of U.S. citizenship has brought.
My then-husband and I moved to Canada in 1969 and both became Canadian citizens in March 1975, completely believing (as we were warned of it at the time) that we relinquished our U.S. citizenship by taking the Oath of Allegiance for our Canadian citizenship. We chose to live and work in Canada, pay our taxes in Canada and, especially, raise our children (born in Calgary) in Canada.
In 2008 I was made aware that the rules had changed (without anyone from the U.S. giving me any notification or a choice to opt in or opt out) — I was still a U.S. citizen and was not in compliance with filing U.S. tax returns. The Canadian accountant that I had used for so many years and who knew that I was born in the States referred me to a Calgary cross-border accounting firm as he was not trained or licensed to deal with doing my back U.S. returns. It was confirmed by that respected cross-border accounting firm that I was required to back file and so at that time they helped me make a ‘quiet disclosure’ for three years of returns and FBARs. I am presently six years compliant.
Earlier this year I talked with an immigration lawyer who confirmed that I had absolutely relinquished my U.S. citizenship when I became a Canadian citizen. But, this was negated by my filing of back U.S. tax returns and FBARs. To add another layer, I had taken to heart a conversation with a U.S. Border Guard who told me during a crossing that the next time I entered the States from Canada I was to use only a U.S. passport – so I applied for and received my first U.S. passport in January of 2009.
My biggest concern is for my adult son who is developmentally delayed. I opened, with him as the beneficiary able to start payments when he is 60 years old, a Registered Disability Savings Account (RDSP). Since the U.S., presently, considers the RDSP a foreign trust as they do the Canadian Registered Education Savings Plan and Tax Free Savings Account, gains are subject to tax and this negates for him the same benefit that other Canadian citizens with a disability receive under these same plans. His RDSP account, identified on my FBARs, is now worth about $30,000 so he, as a U.S. citizen by birth in Canada to U.S. citizens, should be filing FBARs. Neither of my children (born in 1972 and 1974 before my Canadian citizenship) were ever registered by their parents as U.S. citizens at a U.S. Consulate. I am now starting a process of assessment and court proceedings to, hopefully, get Guardianship for legal matters / Trusteeship for my son so I can, again hopefully, be able to make the decision for him to renounce his citizenship. (He would actually think it pretty cool to be a U.S. citizen since all of his cousins live in the U.S., but he can’t perceive the injustice this does for him.) There is absolutely no benefit for my son to be anything other than the Canadian he was raised as. I do not want to leave the administration and expense of this to anyone in my family or to a paid executor when I am gone. I also do not want the IRS to have one penny of my kids’ inheritance that I have worked and saved so hard for – in Canada.
My first appointment for renunciation is scheduled for late January 2012 in Calgary.
I have sent several emails to my Member of Parliament, Michelle Rempel; to Finance Minister Flaherty and to the U.S. Ambassador to Canada Jacobson. It is very disappointing that none of my emails have been answered, therefore I am not, as are many of you, part of this important conversation.
Intelligent forum conversations with other U.S. citizens in Canada have helped me retain some degree of sanity in all of this. I am grateful for the perspectives of others in similar situations in helping me make my necessary decisions to lead me back to a more normal life – one where I can again be a contributing member of Canadian society.
Cecilia. If I can offer my sympathetic 2 cents worth.
Your daughter is Canadian. She was born in Canada. She has a TFSA and a RDSP. Read between the lines of what the consul told you. The US gov and the IRS will have no future interest in your daughter. Once you have renounced, forget all about them and you can safely move on.
@KalC, @Cecilia.
That is correct. Being born in Canada, their birthplace is not flashing in neon lights on their passports (and my son was never registered with the US so would not be identifiable except through my yearly FBARs to the US).
I am willing never to cross the border again with my son; i.e. “Don’t Ask, Don’t Tell,” if I can be sure that he can indeed retain his RDSP and TFSA when FATCA is in place and after I have successfully renunciated my US citizenship, no longer having to report my son’s accounts on FBAR (and 8938?). As I am the trustee for my son’s financial affairs, I have signature authority on his TFSA and am the Holder of his RDSP.
I would much rather have this issue made just and non-discriminatory for all disabled here (some of whom will have a Canadian passport that identifies their birthplace as somewhere in the US). But, if the mountain to climb to get there is insurmountable and will take much more of my retirement funds, I can live with my Plan B.
I just would rather that no one has to work around the insanity of their parents, their trustees, their guardians not being able to renounce on their behalf.
@Nobledreamer — your idea of presenting this to the Taxpayer Advocate Service is something I haven’t thought of, so thanks — I HAVE DONE SO.
@calgary411
I hadn’t thought of it either. I asked my sister if she knew of an ombudsman at the federal level (having had DOS in mind) and she of course, mentioned TAS (she’s a CPA). So I looked around a bit:
http://www.irs.gov/advocate/article/0,,id=212313,00.html
9. TAS also handles large-scale or systemic problems that affect many taxpayers. If you know of one of these broad issues, please report it to us through our Systemic Advocacy Management System.
http://www.irs.gov/advocate/article/0,,id=117703,00.html
How can you submit an issue? Click on the button at the bottom of the page. You’ll be asked a few questions to determine whether your submission qualifies as an advocacy issue. If so, you’ll be directed to our SAMS Issue Submission page, where you’ll be asked to briefly describe the issue and provide a few details about yourself, such as your name and email address. However, we want the email address only to communicate with you about the issue (so please notify us if your email address or account changes after you’ve submitted an issue). Do not submit any taxpayer information such as your social security number!
I would imagine that your son would meet criteria
3 & 4 as he grows older.
http://www.taxpayeradvocate.irs.gov/userfiles/file/TAS_change_case_criteria.pdf
Most TAS cases fall into one of two general categories: (1) Economic Burden cases (TAS Criteria 1-4):
Criteria 1 – The taxpayer is experiencing economic harm or is about to suffer economic harm;
Criteria 2 – The taxpayer is facing an immediate threat of adverse action;
Criteria 3 – The taxpayer will incur significant costs if relief is not granted (including fees for professional representation);
Criteria 4 – The taxpayer will suffer irreparable injury or long-term adverse impact if relief is not granted.
@nobledreamer
Thanks to you — and to your CPA sister — for the additional information. I have addressed these points at http://www.taxpayeradvocate.irs.gov/Home/Contact-Us, and will do the same at the Advocacy link.
This is not just about my son or someone else’s daughter or son — it needs to be policy for ALL disabled affected — whatever I gain in what I am doing for my son’s issues I want translated to everyone. It is outright discrimination if this is not addressed properly by 1) the US, and 2) Canada and every other country — there have to be a lot of families affected. (i.e., these situations should not have to have special treatment for individuals — that’s how people “fall through the cracks”.
There needs to be compassion; there needs to be someone in charge with the common sense to see that what is in place is bad policy.
Much appreciated!!
Thanks to all who have posted kind responses and support to my situation and the inability to renounce for my handicapped adult daughter. This website is truly wonderful, informative, compassionate, and last but not least, enpowering!
Calgary 411 and others with children born in Canada with developmental disabilities: I thought I’d found an important section of the U.S. Department of State Foreign Affairs Manual Volume 7―Consular Affairs but I see you’ve already posted it on Dec. 15, 2011 at 8:08.
From: http://www.state.gov/documents/organization/120538.pdf
Have you pursued the option in section e.? It seems to provide the consulate official the prerogative to exercise some flexibility in seeking further guidance to resolve this issue if there is a compelling need.
“e. Parents, guardians and trustees cannot renounce or relinquish the U.S. nationality of a citizen lacking full mental capacity: A guardian or trustee cannot renounce on behalf of the incompetent individual because renunciation of one’s citizenship is regarded, like marriage or voting, as a personal elective right that cannot be exercised by another. Should a situation arise of the evident compelling need for an incapacitated person to relinquish citizenship, you are asked to consult CA/OCS/PRI for guidance.”
I don’t know how CA/OCS/PRI operates but surely, any official who has the authority to take this discretionary measure to help a family with a compelling need to protect their children would go to CA/OCS/PRI. If your current Consulate is unwilling to do so perhaps you should check out another Consulate that would consult CA/OCS/PRI to see how s/he can help resolve your dilemma
@ladybug- I wish to thank you for taking the time to read and send this matrial. I did try to renounce on behalf of my son, using the section that you have cited. The Consular official did send my request to the Department of State but, as he warned me it would be, the response was to stand by the stated policy.
I do not believe that the outcome would be any different if I were to try at another office, because in each case it is the State Department that makes the decision. You can be sure that the people making the decision are pretty well the same people each time.
I am sure that Federal workers are picked based upon their willingness to adhere by the rules. So I don’t believe that we can ever expect “policy” to be rewritten or challenged by anyone IN the system.
Hi, Ladybug. Thanks for looking out for this segment of the ‘US persons’ without a voice!!!!!
I’ve been told this issue is not something that can be determined at the “Consulate” level. I have engaged an Immigration/Nationality lawyer in Washington, DC to look at “compelling need” — not just for my family, but for all such families as mine. I am using retirement savings to try to advocate for this ‘US’ population. I shouldn’t have to use my retirement savings for this, but I can and it is more important than any other thing in my retirement to have peace of mind that my son will be OK when I am no longer here. So many other families don’t have such to draw on!! Perhaps there is some hope with this one aspect of the IRS law, compelling reason. The Consulates say we cannot renounce on behalf of our developmentally delayed family member, even with a court order. At least three of us trying to renounce on behalf of our developmentally-delayed family member here in Alberta have encountered this with the Calgary US Consulate.
I posted yesterday:
As I submitted to TAS Office of Systemic Advocacy, February 26, 2012:
Parents/guardians/trustees of developmentally delayed dependent adult children cannot renounce US citizenship on their family member’s behalf. That dependent adult does not have the capacity to understand either the benefits of US citizenship or consequences of its renunciation.
Parents/guardians/trustees make all day-to-day decisions, some of life or death, for their family member’s well-being. They need to live in the same country as their family, without the prohibitive stress and monetary cost of yearly US tax and reporting compliance.
Most countries have better rights for developmentally disabled persons, better health care benefits, better tax-assisted savings plans for retirement. They are discriminated against by the persons looking after their well-being not being able to renounce their US citizenship on their behalf to end unnecessary administrative costs (by their government funding) for US tax returns with $0.00 owing and possible prohibitive penalties resulting regarding FBARs.
Because of additional health problems most of these developmentally delayed persons have, it makes no sense for them to live in the US where they would not have the health care insurance or benefits they have in their family’s country.
Who will administer the responsibilities of their US citizenship when the US parent is either incapacitated or deceased? To have an executor carry on this pointless yearly exercise is a further expense charged to their government disability benefits.
This is discrimination on the basis of citizenship, i.e. our dependent children have additional compliance requirements, additional expense of administration, all for $0.00 owing to the US, because they are considered US citizens in addition to the citizenship of their birthplace.
These dependent individuals are denied health care assistance from the US in the country where they live. It appears they are denied access to benefit of legal tax laws provided by their country to save for retirement in their resident country.
Let those of us who look out for our developmentally delayed dependent family member’s well-being EVERY DAY be allowed to renounce that US citizenship on their behalf and continue in the important things like ensuring the quality of life for our sons, our daughters.
This is from the ‘Americans with Disability Act’ which doesn’t address a lot of the discrimination for Registered Disability Savings Plans (RDSPs), etc. for Canadians with developmental disabilities (and the like).
But I did glean the following portion, which talks about discrimination ‘economically’. (My comments are in CAPITALS.)
The US Congress finds that:
(1) physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination; others who have a record of a disability or are regarded as having a disability also have been subjected to discrimination;
(2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;
(3) discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;
THESE INDIVIDUALS HAVE EMPLOYMENT, HOUSING, PUBLIC ACCOMMODATION, EDUCATION, TRANSPORTATION, COMMUNICATION, RECREATION, HEALTH SERVICES!!!!!, VOTING, ACCESS TO PUBLIC SERVICES IN CANADA — THAT IT WOULD BE DIFFICULT TO PROVIDE FOR THEM IN THE US (WITHOUT THEIR FAMILIES WHO ARE ALSO LIVING IN CANADA).
(4) unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination;
(5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities;
(6) census data, national polls, and other studies have documented that people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally;
THESE INDIVIDUALS ARE DISCRIMINATED AGAINST ECONOMICALLY; I.E. THEIR CANADIAN BENEFITS ARE DIMINISHED IF THEIR PARENTS / GUARDIANS / TRUSTEES ARE NOT ALLOWED TO MAKE A DECISION FOR THEIR BEST INTERESTS TO RENOUNCE THEIR US CITIZENSHIP, WHICH THEN BECOMES A SEVERE ECONOMIC HARDSHIP FOR THEM LIVING IN CANADA OR ANOTHER COUNTRY. IF THEY HAVE IN THEIR NAME A CANADIAN REGISTERED DISABILITY SAVINGS ACCOUNT OR A TAX-FREE SAVINGS ACCOUNT, IT DOES NOT GIVE THEM THE SAME VALUE FOR THOSE LEGAL TAX-SAVINGS PLANS AS A CANADIAN WITH A DEVELOPMENTAL OR OTHER DISABILITY COMPARED TO THE SAME CANADIAN WITHOUT AN ADDITIONAL US CITIZENSHIP AND ITS RESPONSIBILITIES.
(7) the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals; and
THESE INDIVIDUALS CANNOT HAVE ECONOMIC SELF-SUFFICIENCY — IT IS INCOMPATIBLE WITH AN EXTRANEOUS (TO THEIR CANADIAN OR OTHER COUNTRY CITIZENSHIP) US CITIZENSHIP.
(8) the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.
THIS IS, FURTHER, UNFAIR AND UNNECESSARY DISCRIMINATION BY NOT LETTING THE PARENTS / GUARDIANS / TRUSTEES OF DEVELOPMENTALLY OR OTHERWISE DISABLED CANADIANS RENOUNCE US CITIZENSHIP ON THEIR BEHALF, WHICH DENIES THESE INDIVIDUALS THE OPPORTUNITY TO COMPETE ON AN EQUAL BASIS (IN THE COUNTRY WHERE THEY RESIDE AND HOLD CITIZENSHIP), THEREBY CREATING MORE DEPENDENCY AND MORE RESULTING EXPENSES. THE COST OF ADMINISTRATION OF THEIR EXTRANEOUS US CITIZENSHIP IN CANADA (OR ANY OTHER COUNTRY) CREATES LITTLE, OR IN MOST CASES $0.00, FOR THE US. IT DOES GIVE MONEY TO CROSS-BORDER ACCOUNTANTS AND US TAX LAWYERS IN CANADA (OR ANY OTHER COUNTRY) — NOTHING FOR ANY SERVICES IN THE US.
WHAT ARE THE OPPORTUNITIES FOR THESE INDIVIDUALS FOR WHICH THE US IS JUSTIFIABLY FAMOUS THAT IS BETTER THAN WHAT CANADA, IN THIS CASE, PROVIDES?
@ recalcitrantexpat I wonder what they consider to be compelling need.
@Calgary411 If your submission to the TAS office doesn’t show compelling need for all those you speak for, then nothing can. I just hope TAS can get the attention of guys that make the rules on this.
To both of you and Cecelia and others dealing with this issue, keep up the good fight. We’re all rooting for you.
Does anybody know of any US federal court cases regarding the renunciation of US citizenship for a mentally disabled individual by his or her guardian? I wanted to look it up myself but the US Pacer system requires that you register and pay for each page you call up. If you know the docket or case number that would be great.
TIA
@Deutsch-American,
I am copying to you my reply to a recent comment by Roger Conklin on another thread. I can give you the name of the Washington, DC immigration/nationality lawyer referred to me by my Calgary US tax lawyer. I paid him a flat fee of $US6,000 to determine that there had been no previous successful case like my son’s and that my being able to renounce on his behalf because of “compelling reason” (read life or death) was determined not to be likely. My decision is to not register my son with the US (he was born in Canada) and go forward as “don’t ask / don’t tell”. I have had my renunciation appointment. I hold an Canadian Registered Disability Savings Plan (RDSP) for my son. I hope that he is not identified as a US citizen by my bank through this account that I hold for him.
Thanks for that calgary411. I have the FAM information from a previous post of yours and as I see from your note, your lawyer in DC said there aren’t any cases. I’m interested in the details of the lawyer and what he said. Does this board have a private message system?
The home page of the Isaac Brock Society has a link at the top to the Forum where a private message can be sent. (I don’t go in there regularly, but I do from time to time.) I also have access to your email address as I go in from time to time to delete spam (your address safe with me). I could send you a regular email if you wish, giving you that lawyer’s contact info if you want to contact him.
*Calgary Glad to see you have resolved what to do in your mind. You have nothing to fear concerning whether the US will bother your son. He is indeed fortunate to have such a wonderful caring mother in a difficult situation.
Thanks, Duke of Devon. I also have the backing of my US tax lawyer (in Canada) who says he will represent my son pro bono for any action against my son by the US — and it is my opinion he would probably like the opportunity should the US be so stupid.
Hi Calgary411 – yes, please send me a msg on my private email. Thanks!