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:
@msd
Here’s a link to the various Canadian Oaths of Allegiance:
http://en.wikipedia.org/wiki/Oath_of_Allegiance_(Canada)
Good Luck msd!
I hope you’ll let us know how things go at the US consulate in Mexico. You have a good case for relinquishment as opposed to renunciation so stick to your guns and get that back-dated CLN. It’s crucial as far as tax obligations are concerned. Make sure you have all your ducks in a row (review the consulate’s security procedures, read more at Brock, etc.) before you make that 14 hour journey. The consulates are not consistent in Canada or the rest of the world so fingers crossed that Mexico is as good as Halifax has turned out to be. (Hazy just got a CLN from there in only 9 weeks — others at other consulates have waited a year.)
@msd,
Re:
Although you’re obviously aware that this might not apply pre-2004, I’d just like to clarify that for this thread, with the following sentence from the Directory article.
will do! thanks @all. I’ll let you know how it goes.
could someone describe the certificate of canadian citizenship? Is it the wallet sized one? My Commemoration of Canadian Citizenship (not a certificate, apparently) has the date of naturalization, but my wallet sized “certificate” does not.
http://www.cic.gc.ca/english/citizenship/proof.asp
Get proof of citizenship
You might need proof of Canadian citizenship to:
•vote;
•obtain a passport;
•obtain a driver’s licence, an enhanced driver’s licence or an enhanced identity card;
•get a job;
•access government services such as health care or a pension, or to obtain a Social Insurance Number.
Citizenship certificate
A Canadian citizenship certificate is a document that proves that a person is a Canadian citizen.
The citizenship certificate is an 8½ x 11 paper size certificate that contains:
•your certificate number
•your Unique Client Identifier
•your name
•your date of birth
•your gender
•your effective date of Canadian citizenship
A citizenship certificate is not a travel document. Any Canadian citizen wanting to travel outside Canada should obtain a Canadian passport.
Determine your eligibilty
Learn if you are eligible to apply for a citizenship certificate.
Apply for a citizenship certificate
Follow the steps to apply for a citizenship certificate. You can also find out how to apply for urgent processing.
Check processing times
Find out how long it will take CIC to process your application.
After you apply: get next steps
Learn what you should do after you apply for a citizenship certificate.
Search citizenship records
A search of records can confirm if you were issued a citizenship certificate or not.
Example of citizenship certificate
ExampleExample of citizenship certificate
Example of the new citizenship certificate, available as of February 1, 2012: (PHOTO OF SAME)
Citizenship certificates issued before February 1, 2012, remain valid.
Example of the old citizenship certificate: (PHOTO OF SAME)
Other documents accepted as proof of citizenship
Citizenship and Immigration Canada recognizes the following documents as proof of citizenship. Some government departments or agencies may not accept all the documents below and may require additional documents.
•Canadian provincial or territorial birth certificates are often enough to prove that you are a Canadian citizen ◦Your birth certificate cannot serve as proof of citizenship if: ■you were born in Canada after February 14, 1977; and
■at the time of your birth, your parents were neither Canadian citizens nor permanent residents; and
■at least one parent had diplomatic status in Canada.
◦If you were born in Canada before February 15, 1977, to a parent with diplomatic status, please contact us to find out if your birth certificate is a valid proof of citizenship.
•Naturalization certificates (issued before January 1, 1947)
•Registration of Birth Abroad certificates (issued between January 1, 1947, and February 14, 1977, inclusively)
•Certificates of Retention (issued between January 1, 1947, and February 14, 1977, inclusively)
of the new citizenship certificate, available as of February 1, 2012:
thank you calgary411. However, that describes a new single certificate that is new as of Feb2012. Before that date they issued two(2): the wallet sized one and a 8×11 Commemoration of Canadian Citizenship. I have the wallet sized one, and I have misplaced the Commemorative one (but have a photcopy). The Commemorate one has the date I naturalized, but the wallet sized one does not. Do I need both (older) originals or is the wallet sized one good enough?
It also says:
Citizenship certificates issued before February 1, 2012, remain valid.
Example of the old citizenship certificate:
(photo looks like the small card that I have)
I’d print this page with that advice from CIC. That and the photocopy with the date I would think would suffice. If not, obstruction!
@msd
The information I received from the Vancouver consulate says the Proof of Canadian citizenship certificate MUST have the date of Citizenship on it. I don’t believe the wallet size card has the date; therefore it would not be accepted would be my guess.
I am wondering whether the US consulates need proof of the date of Cdn naturalization,,, which the wallet sized pre feb2012 certificate of cdn citizenship does not indicate.
@tiger
Yeah,,, I was afraid of that. It takes a considerable amount of time to get a new one.
http://www.cic.gc.ca/english/citizenship/urgent-proof.asp
Apply for Proof of Citizenship Urgently
I believe others have gotten a very fast turn-around (way, way back in the comments but maybe I can find somethng).
The wallet sized card has a date of issuance, which is not the date I naturalized (since I lost my first card where the issuance date corresponded to the date of naturalization). The second card goes back to 1992. Actually I have a third card, one issued in 1998 because I lost the 1992 one and got another one. I am not supposed to have two, apparently, but after I lost the second one and after getting the third one I found the second one. Ooops! Has anyone just presented their wallet sized card? And is the issuance date good enough?
okay calgary, I saw that and was thinking my case might qualify for “urgent”.
It’s in a box saying YP AP. Presumably “Year Processed” and Anee Procesado (excuse my sprench, ).
And, do you have a Canadian passport? Proof of Canadian citizenship is required to obtain a Canadian passport, right? With all you have plus your Canadian passport, I call it obstruction to say you don’t have the required proof.
Oh for sure I have an up to date passport, but all I have needed (at least over the last 30years) is the old passport — and I still have my old passports. But I have to travel 14 hours to the US consulate for an interview. I wouldnt want to be turned around because of insufficient docs. Explicit, rather than implicit, proof of when I naturalized is probably absolutely required by US authorities. But maybe someone else has this same experience?
Good luck, msd. May you be dealing with a US Consulate with reasonable people!!! There seem to be both kinds. Short of a miracle, you’re going to have to work with what you have given the short time period. I wish you well. Your experience will be a valued resource in all we have here.
@msd —
The Vancouver consulate wants both. My wife showed up for her first appointment with the 8X10 certificate that has the date of citizenship on it, and they asked her if she had the little card. She has it, but didn’t bring it. They told her to bring it to her 2nd appointment, which she did.
Bottom line: take every piece of official ID you have. If they don’t want it, they’ll tell you. But if you show up minus something they want, that will slow things down.
*Does anyone have a sample letter of relinquishment?
@John Green
It’s a little Mickey Mouse (no surprise there, eh?) What you get back is the form you filled out with the Consul’s signatures in the appropriate places, and an “approved” stamp from the Department of State on the first page — plus signed (certified?) copies of all the documents you submitted in the process. We took this to our lawyer to get a couple of certified copies made, and he was a little perplexed about exactly what he was certifying — but he did it.
Maybe it’s just the cynic in me, but I’m now convinced that ALL paperwork and forms issued by the US government are deliberately vague, unclear, contradictory, and obtuse to give them the full opportunity to interpret and apply them in a manner that suits today’s politics. Their concept of the rule of law is that the rule of law is whatever we say it is.
@John, If you mean a statement submitted to the Consulate at the time of informing them of my relinquishment, then you can see here: http://righteousinvestor.com/2011/04/07/my-april-7-visit-to-the-us-consulate/
*one form says that relinquishment may not exempt one from US taxation. Should one sign this particularly if relinquishment was prior to 1986? By signing it are you not exposing yourself to possible taxation since you are agreeing that you may be taxed?
@John, it is just a reminder that if you have a tax liability, that you can’t get around it by renouncing your citizenship. If you have no tax liability, which if you relinquished in 1986 you haven’t owed them any tax since before that time, then you can sign the form in good faith. You are not exposing yourself to anything.
From renunciation experience: They prepare the paper, you question whether they understand the difference between oath and affirmation, they say “You wouldn’t want this not to go through, would you?” – and then you do whatever you are told to, hoping it will be your last forced lick of the jackboot. The “contract” for your citizenship has nothing to do with you or your understandings. Voiding that contract, whatever it takes, is the prime prerequisite for freedom.