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:
http://codes.lp.findlaw.com/uscode/26/A/1/N/II/A/877/notes
[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):
http://library.findlaw.com/1999/Jun/1/129807.html
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:
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This discussion of relinquishment has been an eye opener! I was born in the US, went to university there and worked for a few years in the US after graduation. I moved to Canada in 1970 and received Canadian citizenship in 1988. My intention was always to live happily ever after in Canada. In the FATCA mania I become tax compliant a few years ago however the continued costs of compliance are ridiculous. Is relinquishment now an option for me? If so, how should I proceed?
@ TexasWino
Because you acknowledged your US citizenship after receiving your Canadian citizenship by filing US taxes (and perhaps by getting or renewing a US passport in order to enter the USA?) your only option is renunciation which comes with a $2350 price tag now. And of course then comes form 8854 where you tally up your assets and hope the tally is below the limit for exit taxes. You’ll have to weight the pros and cons of renunciation to see what’s right for you.
TexasWino. We can tell you how it’s supposed to work. If your intent was to give up your US citizenship when you became Canadian, then you have a strong case that you relinquished your US citizenship in 1988.
Unfortunately you subsequently filed US taxes which mitigates your case.
However, the state department is supposed to decide whether or not you relinquished in 1988 based on the preponderance of the evidence. I.e. more likely than not. If you have no other ties to the US and especially if you never renewed a passport, then the preponderance of evidence is that you actually did relinquish. Some Brockers have successfully argued their case in spite of obtaining a US passport on the grounds that they were pressured into it. You might make the same case with respect to filing tax returns.
Who knows what they will say. One person on IBS had her relinquishment denied. Her response was ‘f*** y** , I know what I intended and therefore I’m not going to play the game anymore.’
I had not had a US passport for many years prior to becoming a Canadian citizen. Both of my parents, who lived in the US all of their lives, passed almost 15 years ago. My only current US tie is a son who was born 16 years before I became a Canadian citizen and now who works in the US. I worked in Canada for 35 years and retired 10 years ago. I suppose that it is not an excuse but I only filed US returns after receiving what now appears to have been very bad legal advice.
Very bad indeed. That’s why IBS advises all newcomers to first establish that they really are still American and to explore all options. Too bad you can’t recover the cost from the lawyer.
I imagine you now have 4 choices; continue filing, try to establish that you relinquished in 1988, renounce at a cost of US$ 2350. or say “bugger it” and do nothing more.
The $2350 is small compared to future filing fees, taxes owed on TFSA, capital gains on residence, etc.
“texaswino”…I just wanted to tell you that I just received my CLN yesterday backdated to June 21, 1991 (the day I swore my allegiance to Canada). Like you, I panicked and filed the 3yrs of taxes and 5 years of FBARS in August 2014. I was worried about having to pay penalties and just wanted the weight of this to go away, etc…. Right after I filed I made an appointment to renounce my citizenship. Then I found this website and read Schuber1975’s article on relinquishment. Well, I filed for relinquishment on December 18, 2014; got more proof that I made an oath to Canada from CIC for $5.00, met with the Calgary consulate again on January 17, 2015, filled all the forms in (they did try to convince me to renounce instead), told them I filed my returns (they asked why and I said because I felt like I had to and did not want to be faced with penalties), they wanted to know when I realized I was still a Canadian, I never used a US passport since becoming Canadian…well, it worked! My CLN is dated April 30th, 2015. So, really only took them 3 1/2 months to process and now I am free and clear. So, try the relinquishment route…I just saved $2350 plus the IRS rules do not apply to me (no tax filings, FBARS, or exit tax) since I can prove I expatriated in June 1991. Very Happy!
@Renee,
Please confirm that what you did in 1991 was to naturalize as a Canadian citizen and you were not already a Canadian citizen at the time and you were 18 or older at the time.
Well, I was born in the states but left in 1971 when I was 12, with my folks. I never worked in the US, held a US passport, or have assets there. I have a Canadian passport and swore allegiance to a foreign potentate in the process, so does that exclude me from all this FATCA crap? I haven’t registered squat with anyone. But I have no letters from the state department, or anything else. Thanks in advance for any advice.
@Mr Wonderful Eh,
Only if neither of your parents were Canadian citizens at the time of your birth, and only if you obtained Canadian citizenship after you turned 18. If neither of these are true, you could claim relinquishment only if you worked for the Canadian government (any of the 3 levels) or served in its military.
Does any of that fit you so far?
Looking for input/feedback regarding relinquishment. I was born in California to parents who had become naturalized American citizens from Canada. I moved with my mother to Canada in 1967 as landed immigrants. I had never worked in the US, never had a SSN, never carried an American passport. In 1974, at the age of 18, I was adamant that I wanted to become Canadian and give up my American citizenship. So mother and I both became Canadian citizens, and were advised at that time that we would not longer be American citizens. I do remember swearing an oath of allegiance/loyalty to the crown, Queen and country of Canada at the time. I do remember being told several times, by both Canadian authorities and American authorities, that I would not have dual citizenship. Now I’m hearing horror stories of people who went through the same thing are being told that they are, in fact, dual citizens and are subject to the FATCA crap. If I can get verification from the Canadian gov’t that I took the oath of citizenship in 1974, what are my chances of being able to relinquish? Also, I worked for the Provincial government of Alberta from 1988 to 2011. Does that have an impact?? Obviously I’m hesitant to contact anyone in authority to ask these questions….feeling a bit paranoid!
SEE. You can relax a bit, sit back and enjoy the rest of the weekend. When you’ve done that and a bit of homework, you will understand that you are non-Yankee and not subject to this FATCA crap or tax filing or anything else.
Start with the links under important information and state dep’t manuals amongst much other material here and at Maple sandbox.
You don’t need to relinquish. You have already done so. You don’t need to do it twice.You relinquished when you became Canadian with the intent to lose USness. Intent is important and is easily proven by subsequent actions. As you did nothing to behave as an American since, your intent is proven.
It would be nice to have a copy of your oath to Canada. You get one by sending a request to Access to Information and Privacy Division
Citizenship and Immigration Canada
Ottawa, Ontario
K1A 1L1
You can apply online here http://www.cic.gc.ca/english/department/atip/requests-atip.asp
When you get a copy, (it will take a while) you will rest easier. Then you decide whether to get a CLN or to not bother . To get a CLN, you need an appointment at a consulate, you fill in a lot of bumpf and you wait about a year . The good news is that there is no charge to document prior relinquishment and your case is a slam dunk.
In the meantime, if your bank wants to review your status and asks where you were born, it’s none of their business . Good luck; you are among friends; you are in a position of strength and consider a donation however large or small to ADCS.
Hello WhatAmI,
Thanks for your reply. At the time of my birth, my father was a US citizen but originally from Canada, my mother kept her Canadian citizenship. I became a Canadian before I was 18, think I was 16. I haven’t worked for the Federal government, but was a provincial government employee for 19 years. Never served in the military. Your opinion is welcomed.
Mr Wonderful Eh. You have relinquished your US citizenship. Check the ways this is done under the links to State Dep’t manuals to the right. 7 FAM 1280 says that if you take a job with a foreign government or subdivision of that country, while a citizen, you lose your US citizenship if you intend to. your intent is proven by subsequent actions.
No need for an oath. There are lots of examples on this site. You need to do a lot of reading including on the consulate reports to find them. Good luck.
@ Mr. Wonderful Eh,
There’s also a short collection (14 pages, culled from the larger Consulate Report Directory) of the reports from people who relinquished by government employment, including provincial and municipal as well as federal, “Reports by persons who relinquished US citizenship upon taking government employment, Immigration and Nationality Act, s. 349(a)(4)(A)”
This thread might be useful too, as relinquishment by government employment comes up in it, Relinquishment of US citizenship by Persons-Born-Dual or who Naturalised in a Foreign Country as a Minor.
Duke of Devon: Many thanks! I’ll send a request for a copy of my oath, just to feel a bit more Canadian. I had cancelled all plans to visit or pass through the US in the past year. Now I’ll feel more secure doing that. A couple years ago, flying from Montreal to Milwaukee, a US border agent kept insisting that I was American because I was born in the US, and told me that I should get a US passport “because that would make it easier to go back home to the US”. I told him that Canada is my home. I’ve been hesitant since then to cross into the US.
See. Good for you . Quite a few have been bullied into getting a US passport to their subsequent regret. We have been told about this twice in hundreds of border crossings with a US birthplace and Canadian passport. I honestly believe that in each case the agent was trying to be helpful. As in ” you can be a dual citizen if you wish in spite of the fact that you thought you had relinquished”
both times we smiled and responded “thanks so much for your helpful suggestion” We have had no problems in 30 years
I have requested and received copies of my citizenship file, including a copy of my signed oath of allegiance to Her Majesty Queen Elizabeth the Second. I’ve filled out all the forms, submitted them to the US Consulate in Calgary, and have an appointment for a meeting there on September 28! As I have already relinquished, In August 1974, I am only asking for a CLN to formalize things. I was surprised at how quickly I was able to get the appointment in Calgary. Not sure if that is anyone else’s experience there. I’ll let you know what happens after the appointment. I’m anticipating a big sigh of relief once I get this stuff over with. BIG THANKS to the Isaac Brock society, and Duke of Devon for great advice.
They want your money I think. Believe they are now charging $2350 even for a backdated CLN.
Woofy, the new (previously non-existing) fee for relinquishment takes effect for appointments November 9, 2015 onwards.
I was born in the US and moved to Canada when I was still an infant(10 months). My parents were British citizens and were in the US for about a year. I have no ties what so ever to the US,
I have lived, worked, and voted all my life in Canada I have Canadian citizenship and have held a Canadian passport from since I was 18. When I turned 18 (Dec 1982) my Dad investigated into what it would take to renounce my citizenship, I think it was because the US had or was beginning to insist on citizens to register their name for the draft when they turned 18. As far as I was aware he was told all I had to do was to apply and receive a Canadian passport, this would be considered equal to renouncing my US citizenship.
Is this accurate?
@Eric,
No.
Applying for a foreign passport is not a potentially expatriating act as it does not change your citizenship status with respect to that foreign country. Obtaining foreign citizenship is, if you did it as an adult. Did you naturalize as a Canadian citizen after turning 18?
Have you ever joined the Canadian military, or worked for a municipal, provincial or federal government in any capacity?
@Eric, it is accurate in that that is likely exactly what the US told your father. The information from the US is itself inaccurate, as described by WhatAmI.
Don’t feel too badly. In 1992, being in the same pisition as you were, but 26 and of Canadian parents, they lied to me, as well. They told me that as I had voted in Canada, and not returned to live in the US, I had relinquished my citizenship. I had to renounce a few years ago, because I had a Canadian Registration of Birth Abroad, making me born dual.
The US government and it’s employees excel at lying to suit their purposes.
For the benefit of any lurkers, when @The Mom mentions “voted in Canada, and not returned to live in the US”, that refers to INA 350 and old sections of INA 349 which were removed in October 1976. They applied, and potentially still apply, to born dual-citizens who turned 25 prior to Oct 1976 and met the other requirements including “taking advantage of foreign citizenship”. I hadn’t heard that the US was still mis-quoting these repealed laws as late as 1992. Amazing!