See also: Please read this post if your actual expatriation date is before 2004 (Updated)
The blog post on ex post facto stirred up a flurry of e-mails between members of the society. It switched on a light bulb for some that the State Department and the IRS were trying to pull a fast one, and that those who were following rules at the time of their relinquishment were not required to follow the new rules.
According to the instructions for 8854, and USC 26 section 877, the date of expatriation is as follows (US Code at Cornell University):
(4)Relinquishment of citizenship
A citizen shall be treated as relinquishing his United States citizenship on the earliest of—
(A) the date the individual renounces his United States nationality before a diplomatic or consular officer of the United States pursuant to paragraph (5) of section 349(a) of the Immigration and Nationality Act (8 U.S.C. 1481(a)(5)),
(B) the date the individual furnishes to the United States Department of State a signed statement of voluntary relinquishment of United States nationality confirming the performance of an act of expatriation specified in paragraph (1), (2), (3), or (4) of section 349(a) of the Immigration and Nationality Act (8 U.S.C.1481(a)(1)–(4)),
(C) the date the United States Department of State issues to the individual a certificate of loss of nationality, or
(D) the date a court of the United States cancels a naturalized citizen’s certificate of naturalization.
Subparagraph (A) or (B) shall not apply to any individual unless the renunciation or voluntary relinquishment is subsequently approved by the issuance to the individual of a certificate of loss of nationality by the United States Department of State.
Now this is all well and good, namely with regard to item (B) above, which states that the expatriation date is the day that a person informs the State Department. But the question remains when did this law actually come into effect; for it cannot be applied ex post facto to those who committed an expatriating act before that date. One of the members of the Isaac Brock Society tracked it down: The answer is that if you relinquished your US citizenship before February 6, 1995, you were not required to have informed the State Department. My correspondent thus wrote to me (reproduced with permission):
As it turns out, the timeline of important amendments and changes to Section 877 of the Internal Revenue Code (26 USC) dealing with Loss of Nationality begins much earlier than the June 2, 2004 amendment which introduced the infamous IRS Form 8854. For our purposes (meaning those who committed relinquishing acts in the 60’s, 70’s and early 80’s), the truly significant date vis-a-vis the IRS is actually February 6, 1994, as referenced in the 1996 Amendment – the most important one for us to understand, I believe. In a nutshell, those of us who committed qualifying relinquishing acts before February 6, 1994 are absolutely NOT subject to amendments made after this date under the terms of a “special rule”. As a result, it appears that we have no requirement to provide any IRS-specific forms or statements to the IRS, including form 8854! It would appear that a simple notification letter from us (notarized and duplicated, I would suggest) indicating that the Department of State has processed and issued a CLN showing a relinquishment date prior to February 6, 1994 should suffice. This seems to be the means by which a back-dated CLN issued by State could be used to provide sufficient information to the IRS to not require any further action. Of course, while State eventually provides its own direct notification to the IRS, I think it is important that we provide a “good faith” letter as well.
I have found some important references to this date, within FindLaw notes and in the official IRS Code. I am providing links and screen shots to relevant portions of these references, as follows:
1. FindLaw notes for 1996 Amendment:
[I have bolded the most relevant text]
EFFECTIVE DATE OF 1996 AMENDMENT
Section 511(g) of Pub. L. 104-191 provided that:
“(1) In general. – The amendments made by this section [amending this section and sections 2107 and 2501 of this title] shall apply to –
“(A) individuals losing United States citizenship (within the meaning of section 877 of the Internal Revenue Code of 1986) on or after February 6, 1995, and “(B) long-term residents of the United States with respect to whom an event described in subparagraph (A) or (B) of section 877(e)(1) of such Code occurs on or after February 6, 1995. “(2) Ruling requests. – In no event shall the 1-year period referred to in section 877(c)(1)(B) of such Code, as amended by this section, expire before the date which is 90 days after the date of the enactment of this Act [Aug. 21, 1996].
“(3) Special rule. –
“(A) In general. – In the case of an individual who performed an act of expatriation specified in paragraph (1), (2), (3), or (4) of section 349(a) of the Immigration and Nationality Act (8 U.S.C. 1481(a)(1)-(4)) before February 6, 1995, but who did not, on or before such date, furnish to the United States Department of State a signed statement of voluntary relinquishment of United States nationality confirming the performance of such act, the amendments made by this section and section 512 [enacting section 6039F of this title] shall apply to such individual except that the 10-year period described in section 877(a) of such Code shall not expire before the end of the 10-year period beginning on the date such statement is so furnished.
“(B) Exception. – Subparagraph (A) shall not apply if the individual establishes to the satisfaction of the Secretary of the Treasury that such loss of United States citizenship occurred before February 6, 1994.”
Amendment by Pub. L. 104-188 applicable to taxable years beginning after Dec. 31, 1999, with retention of certain transition rules, see section 1401(c) of Pub. L. 104-188, set out as a note under section 402 of this title.
2. Another FindLaw reference:
The FindLaw reference is here (though the majority of the article is out-of-date as it was written in 1999):
QUOTE: A special transition rule applies to any U.S. citizen who committed an expatriation act before February 6, 1995 and who did not submit such a statement.
3. Extracts from IRS Code Title 26, Section 6039G – Information on individuals losing United States citizenship:
While researching a while back regarding CLNs (i.e., whether loss of citizenship depended upon having one-which thankfully, does not in spite of what is repeated endlessly by some in the tax compliance industry) I read the Statute from 1940. It clearly states DOS is to issue a CLN if there is reason to believe someone has lost their US citizenship. DOS has ignored this duty for decades. I am astounded when we hear people report they contacted consulates back in the 1970s etc and we’re told they had lost citizenship but did not bother to include getting information to get the CLN issued. And now, so many problems with the banks, condors, etc because DOS did not do their job.
From the horse’s mouth:
Good catch on INA 352.I always find that confusing. Unless I was absolutely certain I met all the conditions, I would probably opt for INA 349 bc easier to demonstrate….
@Patricia Moon “And now, so many problems … because DOS did not do their job.”
Thanks for your reply. But I think it goes beyond DOS not doing their job.
I’d say DOS ignored a duty prescribed by law.
Isn’t there a consequence for lawbreakers?
Isn’t there a consequence for lawbreakers?
nope not in amerika 🙂
I’m a bit confused. Prior to 1995 you did not need to notify the State Department that you had relinquished? So what would be considered an act of reliquishment? I was born in the US to 2 Canadian parents. I have a US birth certificate and a Canadian citizenship certificate (Canadian born abroad). We moved back to Canada before my first birthday and I have never lived in the US since. Once upon a time I was told that when I turned 18 I would lose my US citizenship if I did not live in the US but I have been told that that was not true. I turned 18 in 1989. Have a actually relinquished? If yes, do I still need to file something? If no, can I relinquish (I am also a federal government employee since 2001).
I should also mention, to add to my confusion further, I was recently told by a US border guard that I needed a US passport to enter the US. This leads me to think that one does not lose the US citizenship without formal action, but maybe he was mistaken not knowing what my full history was.
See detailed answer at http://isaacbrocksociety.ca/2012/09/13/renunciation-and-relinquishment-what-are-the-differences-is-there-a-difference/comment-page-1/#comment-8382566
The rules on retaining US citizenship changed over the years. I too was told that I needed to make a declaration and choose one or the other at 18, but that rule vanished somehow. Through the 80s one would be grilled when renewing a US passport, as if they looked for any excuse to deny. Now, alas, it’s the other way round, they look for any excuse to keep you a citizen.
As for the rule at the border, the deal is that it is US law that a US citizen must use a US passport to enter the US. However, there is no penalty defined for breaking this law, and if the border person believes that you are a US citzen, they cannot deny you entry. If you cross the border regularly and have a US birthplace on your Canadian passport, three options: get a US passport; renounce and keep a copy of your CLN with your Canadian passport; continue using your Canadian passport, play dumb, but prepare for arguments a certain percentage of the time.
Whatever you do, do NOT apply for a US passport. Never ever, unless you want to retain US citizenship and be on the hook for whatever their tax and FBAR filing situation is. The other two options that @Nononymous gave are valid, but he left out what might be the most important one for you (read on…).
Read the link that @Nononymous gave.
It’s confusing, but as stated in the link I also believe that the attitude of the various US authorities (border guards, IRS, etc) is that you are a US citizen until they tell you that you are not, and that can’t happen until your renounce or relinquish and they issue you a CLN. You and your Canadian bank(s) may well agree that you are not a US citizen, but I’m talking about the attitude of US authorities.
Some people in your situation choose to do nothing, including never entering the US again just in case.
One of the places where you may have heard about losing US citizenship at age 18 if not living in the US was INA 350, but that was repealed in 1978, 3 months before I could have made an INA 350 relinquishment claim. I’m not sure if anybody who actually qualifies has successfully claimed INA 350, but you are far too young so it doesn’t apply to you anyway.
My sister and I have the exact same history as you, except we were ages 9 and 12 when we moved back to Canada. You were only one year old. That age difference makes no difference to our situations. A few years ago I successfully claimed a back-dated relinquishment based on government employment dating back to 1975. My sister has a similar claim but hers was denied because she worked (for Canada Post) as a contractor, not an employee. As a result, she’s one of those doing nothing for now and not entering the US at all. Just like you, a border guard hassled her about not having a US passport a few years ago.
Now the good news, assuming that you’ve never done anything that demonstrated that you considered yourself a US citizen (filing taxes, US passport, voting, etc). Since you started work as a government employee in 2001, you can claim an INA 349 relinquishment back-dated to the day you started. Since that was before 2004, you do not have to deal with US tax compliance in any way. If you go this route, you need to prove your employment and the exact day you started working, and state that you knew that Canadian government employment was a potentially relinquishing act and you did it with the full intention of exactly that: relinquishing US citizenship. I was lucky enough to have done this for free, but now you’ll have to pay US$2350. As far as I can tell from your post, this is the only possible relinquishment claim that you have (unless you ever joined the Canadian military).
Or you could do nothing as mentioned above, like my sister.
I was absolutely loath to renounce as that seems an admission of being a US citizen! Fortunately my relinquishment was successful.
There is a small chance that the US might someday give relief to Accidental Americans who have never had any other connection to the US (my sister’s only hope), but the strongest activity right now seems mostly aimed at US expats in the push for TTFI. This really only benefits tax-compliant US citizens abroad who want to retain their US citizenship but get relief from FATCA, US taxes, FBARS, etc.
If you are planning to pursue relinquishment, then absolutely do NOT apply for a US passport.
if you are planning to renounce or ignore tax compliance, then it’s not necessarily a huge problem to have obtained a US passport. But I wouldn’t do so unless you have very good reason, like a lot of important work travel to the US so a need for trouble-free passage, after having received several lectures at the border.
Supposedly your name and SSN (if you have one) gets fed to the IRS after the passport application/renewal, bu there’s no evidence that they do anything with that data. Also, despite what you see on the application form, apparently it is still possible to obtain a passport without an SSN – one can still enter all zeroes.
Nononymous and Susan. The important date is June 3 2004 referenced at the start of this thread.
Susan, I misspoke when I said policy level post with the government. The letter of the law says any level of employment. Depends on whether or not the vice consul wants to be an asshole. The letter of the law implies that an oath of allegiance might be a factor.
We’ve had successful renunciations for nurses working for a provincial government and unsuccessful ones working for Atomic Energy Canada on the grounds that AEC is a government agency. Again, if the vice consul wants to be difficult she would argue you can’t intend to give up something you didn’t know you had.
Portland and Susan,
Oh NO! Please don’t start up the “oath” myth again! An oath by a dual citizen to a foreign government for government employment is absolutely NOT required for a relinquishing act. An oath by a dual US-Canadian to the Canadian government is absolutely meaningless to the US because the person is already a Canadian citizen. Consuls were confused about this 5 years ago and some insisted on oaths and it took a couple of years for that to get sorted out. [[[The place where an oath is part of a relinquishing act is when a US citizen makes an oath to a country of which he doesn’t already have citizenship.]]]
I agree, policy-level jobs are absolutely NOT required either. My successful government employment relinquishment claim? I filled potholes for the city. No kidding. Of course, that doesn’t mean your mileage won’t vary according to the particular consul you deal with.
Good comment by Portland that you have to make it clear when submitting a relinquishment claim that you knew you still had US citizenship when you took the government job. That goes along with what I said about making it clear that you knew the government employment was potentially relinquishing and that was your intention.
I didn’ say it was required. I said it might be a factor. See form DS 4079 Question 11C
Susan. These 2 links priovided by Pacifica777 might help you . Scroll up in this thread a few pages.
You said it might be a factor, but it is not a factor for anybody who is already a citizen. It is only a factor if the oath is to a government where you are are NOT already a citizen. Therefore it is not a factor for Susan. There is no doubt about this.
Form DS4079 is simply a data-gathering tool that does not make clear the relationship or meaning of the questions. The questions are just listed willy-nilly. This form could even be the reason why consuls were wrong about this 5 years ago. There are more details and explicit instructions about oaths in one of the FAMs but I’m not going to look for it now. Read INA 349, where it’s already clear enough:
“A” is for people like Susan who “…has or acquires the nationality of such foreign state”.
Then there is the word ___or___, leading to the 2nd case which has the identical words except having the nationality is replaced by declaring an oath, so,
“B” is for people who are not already citizens and who are required to declare an oath of allegiance to get the job.
The point I’m making including a reference to the FAM is discussed in the second link from Pacifica777 that you just gave. Specifically:
“Prong 4 is “the making and receipt of the oath or affirmation alters the affiant’s legal status with respect to the foreign state” (7 FAM 1252(h))”.
Fair enough .