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:
@WhatAml
I have a “Certificate of registration of birth abroad” which was issued 3 months after I was born.
I should correct something from my first post, my parents were British subjects with Canadian citizenship at the time on my birth and my Dad was working temporarily in the US.
I have never joined the military or worked for a municipal, provincial or federal government in any capacity.
I have heard that if a person has ever voted in a foreign federal election, the US would recognise it as a act of relinquishment, is this true?
Eric: Another example of the miasma of US citizenship. What you recall is probably accurate. I can corroborate it. Someone I know applied for a US passport in 1980 or 81. This person was also Canadian but born down south. He was told by a consul in Canada ‘ we don’t really approve of dual citizenship’ and ‘if you take advantage of your Canadian citizenship you will relinquish your US one’ This was because ,at the time, the state department didn’t agree with a supreme court decision. The consul was unfortunately wrong.
Voting is not a relinquishing act. Neither is using a non US passport.
Where does that leave you? Depends on your circumstances. Don’t tell your FI where you were born. Do you have heirs down south? Do you feel the need for a CLN? and so on. We
@Eric,
Thanks for the clarification. I thought you were born dual US-British and therefore naturalized as a Canadian. Your history is the same as mine then.
It _USED_ to be true. Voting as a potentially expatriating act was repealed in Oct 1976, based on Supreme Court decisions declaring it unconstitutional dating back to the 60’s. You were much too late and, IIRC, we’ve had no reports of recent successful relinquishment claims based on voting prior to 1976 anyway.
All comments here are from accidentals but what about accidental naturalized,namely,those who were automatically naturalized US with the parents as minors
I came to Canada in ’67 and naturalized Canadian in late ’73 and in my ’30’s. Once I crossed that great divide in ’67, I never thought of myself as an american or acted as such.
Mý question is where do I stand in the scheme of things fatca?
Another question.What if an accidental wins the big lottery($100M) and the IRS shows up?
@RobertRoss
I suggest you ask your question again but under the renunciation and relinquishment section. This thread is an old one and seldom visited.
Also I presume you were born in the US to Canadian parents, then moved to Canada and registered as a Canadian after the age of 18?
I believe you may have already relinquished your US citizenship if you have done nothing American since. Although there may have been some change in the Canadian law in such that you would have been declared a backdated Canadian from birth, that would prevent a backdated relinquishment. BUT Hopefully a Canadian Brocker will respond, once you repost
http://isaacbrocksociety.ca/renunciation/
I’d like to clarify my situation. I became a US citzen as a minor when my parents naturalized there in the mid -1950’s and originally ,all european. I came to Canada in ’67 and naturalized here in late ’73 In my 30’s.I came to get away from their politics .Once I crossed over,I left the US behind me. I call myself and identify myself as Canadian only .Once here,never had a US passport,never filled out their income form,never voted either.My loyalties lie here entirely.
It seems that for a century or more,the CBT wasn’t taken seriously maybe because there were some half -decent politicians around at that time ,saw the flaws ,and ignored it. Today that decency is gone.
However,my question is where do people like myself stand in this world of fatca.
Many thanks.
.
@ heidi
Sorry, I pasted your link above thinking it would land me in renon and relinguish.
@Robert
You relinquished your US citizenship as an adult in 1973. You are not a US citizen. Do not listen to anyone who tells you you are. Do not file any tax returns. I presume you have never gotten/used a US passport since that time. Nor voted. As long as you have done nothing to indicate you consider yourself a US citizen, you aren’t.
You could go through the rigmarole of getting a CLN if you are worried about the banks.Question, you were born in Europe? And have a Canadian passport? There is nothing to indicate US citizenship there…………
Robert Just to confirm what Patricia Moon said:. You are not American and have not been since 1973. You can safely and definitely put this whole mess behind you. If or when asked if you are American, the correct answer is no. Cheers
It might be helpful for new readers to have explained how @ Robert Ross is deemed to have relinquished in 1973. I think his situation is a bit unusual as he first was brought to the US and then later moved to Canada.
The good news Robert is that your passport will not show your place of birth as being in the US. Tell them they can put that in their pipe and smoke it.
Easily explained. One of the relinquishing acts that causes someone to lose US citizenship is to become a citizen of another country with the intent to lose US citizenship. Robert’s intent was clear.
Those who relinquished before 1995 were not required to inform the State Department, not required to obtain a CLN and not required to fill in any tax forms all of this is detailed in the links in the sidebar.
@Ginny & Robert
There is nothing special about Robert’s relinquishment as someone naturalized to the U.S. as compared to someone born there who relinquishes.
The U.S. Immigration and Nationality Act of 1952 as written would control Robert’s 1973 loss of American nationality/citizenship just the same.
Robert naturalized to Canada:
a) as an adult, and
b) with the intent to lose |American citizenship.
These two factors not only at the time, but still today constitute relinquishment of American nationality/citizenship.
Robert, you are not American for nationality/citizenship, nor for the more recently (1994) instituted taxation/citizenship.
Robert’s lucky difference from the U.S.-born relinquisher is that he has no obvious indicators on his ID documents of his former citizenship that might put him in difficulty at his local bank.
@DoD and @Shovel
I was aware of this but thought it might be helpful if it could be stated succinctly, just as you did and better than I would have. You know how long winded I can be.
I hope his mind has been set at ease now.
@ Robert
No one here is offering you legal advice per se but your situation as you have described it here appears to comport with the US law at that time. You have dodged a huge bullet.
To everyone above,
I’ve referenced quite a few tables and charts from DOS and cross border sites regarding citzenship and its loss but they only have one parent american,both parent american,grandparents american ,etc but nothing about parents and children naturalized simultaneously and necessary conditions to loss it.
All the cross-border lawyer sites,that I have visited, say the same thing.No matter when the loss of citzenship one needs the LCN and the tax forms. There is no ex post facto for them and that makes no sense.
The laws is deliberately ambiguous so that the condors can decide the most profitable way to interpret.
Thanking you all for your assistance
@Robert Ross
I am not sure it is very clear why you are making this distinction about “parents and children naturalized simultaneously.” Could you kindly list what cross-border lawyer sites you are referring to?
No, a CLN is not what determines loss of citizenship. It is simply a record of the loss. It is totally possible to receive a back-dated CLN for a past relinquishment.
And there is no requirement for a relinquishant pre 2004 to pay taxes.
http://www.robertsandholland.com/siteFiles/News/03-05-13_Expats%20Live%20in%20Fear_MJM.pdf
p 5
The effective date of Code Sec. 7701(n) is particularly noteworthy. As expressly provided under
section 804(f) of the 2004 Act, Code Sec. 7701(n) (and the other expatriation-related provisions of the
2004 Act) “shall apply to individuals who expatriate after June 3, 2004.”18 Thus, there’s no question that
individuals who successfully relinquished their citizenship for immigration purposes on or prior to June 3,
2004, continued to be respected as noncitizens for federal tax purposes after the 2004 Act.
The raw fact of the matter is that in your case, this is a citizenship, not a taxation issue. I only know 1 citizenship lawyer who deals with the complexities of this. Most cross-border tax lawyers know nothing about it and rely on immigration lawyers (those who are schooled in how to get in the US, not get out of it). Give me a day to find some articles for you to look at.
Have you checked out any of these?
http://catseyesap.com/crd/Consulate%20Report%20Directory%202016.06.d.pdf
http://isaacbrocksociety.ca/2013/02/16/pre-1995-relinquishers-and-the-irs-three-recent-legal-opinions/
In the meantime, here is something quite basic from the State Department’s Foreign Affairs Manual:
https://fam.state.gov/fam/07fam/07fam1230.html#M1233
e. Particular care should be given to reviewing “older” findings of loss of U.S. citizenship; i.e., those occurring prior to 1970 and, to a lesser degree, to cases decided in the period between 1970-1990. Bear in mind that during this period, the law of expatriation underwent radical changes as a result of a number of U.S. Supreme Court decisions. The net effect of these changes was to require that the Department find that the preponderance of the evidence establishes that an individual intended to lose nationality before approving a CLN. Please note that there was a significant lag during this period between (1) U.S. Supreme Court decisions on expatriation and (2) their full implementation by the Department
Robert, Rest assured those cross border lawyers are not acting in your best interest. They would like to make a few thousand $ from you.
Go to the section under State Dep’t forms, manuals etc on the right. Navigate to 7 FAM 1200 Summary paragraph a. If you read all of 7FAM. 1200 to 1290 it becomes apparent they don’t want to let you go. However the law says you have already gone.
Then the question becomes-do you need to document that fact? The answer is no. Until about 1995 there was no requirement nor need to document the fact, nor to obtain a CLN.
Now, if you feel the need for a CLN anyway, it will require a fair bit of reading on your part to understand the process and then a wait of up to a year for an appointment and an extortion fee of C$3000 paid to the State Dep.t. One of Peter’s Principles (5) states Those least hurt have done nothing and (4) those hurt the most have engaged a cross border lawyer or accountant. Cheers
@Patricia Moon
@Canadian Ginny
@DoD
@Shovel
Thank you for your indulgence. First of all, I’m not of a legal mind,so bear with me. What I find most annoying about the legal speak of Robert & Holland and others of that ilk is they insist on focusing on today and failing to even quote properly laws in the past and specifically one that applies to me.
.The 1952 INA section 349 a does not not even mention the word intent and simply lists those acts as as expatriating . Reading that section in 1973 would have surely convinced anyone that taking on Canadian citzenship wa a unconditionally expatriating.Period. Only after a number of Supreme Court decisions , they finally added intent to the preamble.
For me ,as I am of a simple mind, this begs the question in that if I divorced my country ,or partner for that matter and afterwards live my life under certain seemly logical assumptions ,like being only Canadian or remarrying in the other case. What happens when that law is changed so that the new law doesn`t allow for divorce on the old grounds ? What happens to the original divorce (and the new marriage)?Does it mean that all the old divorces are annulled? Doesn’t make any sense.
Thanking you all again.
Forgot to mention and as you probably already know the intent was added only in 1986 to the preamble.only to confuse the issue some more.
And, unlike the changes in Oct 1978 that were prospective only (INA 350 and voting as a relinquishing act, etc), the 1986 change that took away the power of Congress (as lawmakers) to strip US citizenship against one’s will and made it a choice of the individual, the 1986 changes were retrospective. That really makes it confusing. Like the lawyers who seem only to quote current law, consuls and the DoS themselves have to be pressed to consider the laws in effect at the time. I think this last point has improved over the last few years though, with the flood of past relinquishment claims.
Robert. Doesn’t change your situation. You ‘performed’ a relinquishing act. The Supreme Court forced the State Department to only recognize relinquishing acts that were done with the intent to lose US citizenship. Intent is supposed to be determined by subsequent actions and by the preponderance of evidence. I.E. Since you did nothing to act as an American after you became Canadian, your intent is proven. The new law is simply a modification of the old law. You qualify on all counts.
There is still no need to obtain a CLN or to file any forms.
Robert,
You have it exactly right. The law said exactly that at the time you took on CDN citizenship. This is really one of the easier situations to claim a relinquishment due to the date. Don’t let anyone tell you otherwise.
Your only issue may be the banks who may ask you for a CLN. If you don’t wish to get one, you are supposedly allowed to provide another explanation. But I fail to see why any of them would ask you. It would seem you would have no US indicia, not even on your passport, having been born in Europe. Forget about the intent crap. It came later and they cannot automatically bestow citizenship on you. You simply take the position that you are not a US citizen. Period.
I will not pay an extortion fee no matter what happens ,at least my pride will be in tack.It is so sad that fear has driven so many to relinquish.I am disgusted by the cowardice of our government .
Considering the legal battle to be the most crucial, I only wish that you would have more witnesses since we have the most expats . Sadly,It seems that the IRS has found the proverbial goose that lays the golden egg($3000CAD).
BEST OF LUCK
@ Robert
“The 1952 INA section 349 a does not even mention the word intent and simply lists those acts as expatriating.”
You are right, and I was wrong to mention intent. My apologies; I should know better. Dual citizenship wasn’t allowed back in 1973 in either the U.S. or Canada. Gain Canadian citizenship back then, and the INA made sure you lost American. They can’t grab you back.
@robert Ross
I suggest you print up the relevant part of the act that proves you were freed in 1973 (for proof if ever you are confronted.)
You are also free to keep that 1 million lottery win 🙂
@Robert Ross
You naturalized to the U.S. in the 1950s, but then left the U.S. permanently in 1967.
Under INA Section 352(a)2 you actually lost your U.S. citizenship in 1972.
Your loss of U.S. nationality under INA352(a)2 was a year earlier than your naturalization to Canada!
Which raises a question about another provision of the INA.
@Patricia Moon
@WhatAmI
@DoD
Sections of the INA (like Section 352 and like Section 349 discussed above) have been amended and/or their interpretation by Department of State has changed over time.
Does anyone know what has happened to INA Chapter 4 Section 358.
INA Chapter 4 Section 358 places a legal obligation on Department of State staff to be proactive and take the initiative in issuing Certificates of Loss of Nationality to anybody they have reason to believe has committed an expatriating act.
Schubert is the only person I’ve ever heard of who proactively has been issued a CLN.
Has the legal obligation of Section 358 been amended out of the INA, or is it just being ignored?