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:
*Thank you. I am assuming there was a relinquishing act 33 years ago in pledging allegiance to the Queen and flag, not voting in the US, not holding a valid US passport, owing no US taxes and not filing any returns. So it is relinquishing rather than renouncing. Thank you for the copy of the letter and the access to the forms. This has been very helpful and I am very grateful.
…and your family can rid itself of needless US citizenship and live the rest of your lives not worrying about the absurdity of all this. Life is too short. I don’t know where you are, but if you review the Consulate Directory Pacifica has given you, you can determine if the one nearest you is one of the better ones to deal with. My renunciation was in Calgary, all very straightforward and respectful. You will see that Halifax is one of the best and Toronto good to deal with as well. Excellent further education before your next steps. We’re glad you have continued to read and come to the conclusion you have, the correct one I think. (If I hadn’t made the mistakes I did by entering back into the US horrorshow, claiming relinquishment would have been my choice. My mission and others’ here is to try to convince others not to make the same mistakes that I did. You can read my story elsewhere on this site.) Good luck and please stay in touch to let us know how you are doing.
@John,
Sounds good! By now the consulates here in Canada are quite familiar with processing relinquishments, should be smooth sailing. I spent about 5-10 minutes with the clerk upon arrival (they photocopy stuff), waited about 45 minutes in the waiting room, then met with consul for about 10 minutes, which seems pretty typical.
Just a technical point, the relinquishing act itself was naturalising in a foreign country, the oath, 33 years ago with intent to relinquish. Your following actions (or non-actions), post-relinquishment, are evidence that you did relinquish. (Or maybe that is clear in your mind and I mis-read your sentence.)
Just an update on my document search: I couldnt find the 8×11 Commemoration Cert. but I did locate a paper with a Citizenship and Immigration Canada letterhead, from the Registrar of Canadian Citizenship addressed to me saying “you will find enclosed your Cdn certificate as proof of Cdn citizenship.” It goes on to suggest I keep this letter in case of loss of the certificate, and gives the following “important information”: the certificate number AND the effective date. The effective date is the exact date of my naturalization in 1981! It says at the bottom “this letter is not proof of citizenship”.
So now I have my wallet sized citizenship certificate card (with no date for naturalization), but corroborated by this letter with the same number as my card and the “effective date” of my naturalization.
Hey!, that’s looking like enough. Has the docs from other people relinquishing been varied enough that there is no standard?
Anyway, I am avoiding applying for a new proof from Ottawa, waiting the 4-6 months, having to write a police report of it being “lost” (in truth it is misplaced somewhere either Mx and Canada).
Should I make that appointment on what I got? Not looking for legal advise just opinions based on the learned witnessing to numerous testimonials.
@msd,
My only experience is with the Vancouver consulate. I came to my first meeting with two birth certificates – an original and a certified copy. They accepted neither. I also came with 2 marriage certificates (showing name change) – the original Church certificate and certified copy. They accepted neither. I was required to get a 4th birth certificate (long form, showing parents names and the registration of birth date) and a Civil Marriage Certificate. So as I said – my only experience is with the Vancouver consulate and they are very, very particular.
the docs I have are:
My citizenship certificate wallet sized card (proof of citizenship)
The letter from the Registrar of Cdn Citizenship (with the naturalization date).
My Cdn passport: one current, one old.
BC driver’s license. SIN card. BC Medical card.
US passport. SS card.
Two Birth certificates, diff. formats, both with parents’ info, registration, hospital, doctor — signed and sealed.
So no comment on my letter from the Registrar of Cdn Citizenship as proof of when I naturalized? I guess it’s a curve ball thrown in from outer space!
@ msd
I think the problem is re: your letter of proof is that none of us know what any particular consulate will require for certain. Do you have an e-mail address for that consulate? Maybe you could e-mail them in advance — explain that it is a long journey to get there and you want to make sure you have everything with you.
Good suggestion for msd, Em.
Any one of us would probably think that would be sufficient but, as we’ve seen, especially in the Vancouver Consulate, there are barriers thrown up, seemingly for no good logic as in tiger’s case (marriage certificate and birth certificate).
I’ll try to word the email so that it satisfies their requirements, rather than allowing them to choose which Cdn docs I should have (in their humble opinion). ie. “I have proof of citizenship and an official letter from the Registrar of Cdn citizenship of when I was naturalized. Do I need my Cdn passport as well? And anything else you require?”
I doubt they even know what a Commemoration Certificate is.
*This site has been a lot of help. I came to understand that I have a case for relinquishing, rather than renouncing. I took my oath of Canadian citizenship in 1985.
The one concern I have is about the tax issues. I have read posts related to whether or not I have to inform the IRS, or to file past tax returns. I have not filed tax returns in the US since becoming a landed immigrant in 1978; rather, I have been filing taxes in Canada. So… I called a tax laywer in Calgary, and had an initial consult.
From what I understand, I need to clean up my tax situation first, which means filing 5 years of forms. This is needed to avoid having to pay an ‘exit tax’. I was advised that once the forms are in the mail, I am deemed to be caught up, and can then go to the consulate in Calgary. On principle, I want to ask for a CLN, however I was also advised that renouncing is immediate; the dilemma, to act on principle or to be pragmatic.
So…I went from feeling somewhat positive, that I could make an appointment to file the forms to relinquish, and would not have any tax obligations in the US…to feeling like I have a mess to deal with, and most likely a huge bill to get US tax documents filed. Of course, on principle, I have concern that filing past tax returns is a statement that I am acting as a US citizen again.
Perhaps I should get a second legal opinion…
Any advice is welcomed.
Thanks!
*I see that you plan to go to calgary to get a CLN. Should be able to do it in 1 visit. Check out the thread under “our resources’ titled ‘did you relinquish before 1995’ You will see that you don’t need to contact the IRS. Steer your friends away from the lawyer you contacted. Good luck.
@Lagoon,
I’d like to reply to your question, not recommending a course of action, but a few points about the timing and effect of filing.
As you’ve read on this and other threads here, it seems that most Brockers who relinquished their US citizenship prior to the 1995 (HIPAA) and/or 2004 (AJCA) laws are not going to “wake the sleeping bear.”
In any event, if a person does file back taxes — which is clearly required for post-2004 people — one can apply for his CLN first and then backfile. Several Brockers have done that. You have to file your 8854, on which you certify that you have been tax compliant for the previous five years, by June 15th of the year following your consulate meeting. So, if you apply for your CLN this year, you have til June 15th, 2014, to take care of back tax matters and file your 8854.
I’d like to clarify that. It won’t invalidate a relinquishment, although it does of course put you into the IRS system, so you’re committing to logging out of it with the 8854.
A few Brockers (three, I think) who relinquished did file back taxes before applying for their CLN, and received their backdated CLNs, no problem.
In that case, the person explains on question 13(e) of the 4079, that they filed recently only because they believed they were required to according to the
Tax Code, 26 USC s. 877A (in which the IRS considers a person responsible for US taxes until the date they sign their CLN application forms at the consulate [not the earlier date when the relinquishment actually occurred]) and did not file with the intention of re-establishing US citizenship.
The existence of a relinquishment is evaluated on the balance of probabilities. And based on the cases I know of and what I was told by a consulate ACS chief, if that’s the only US-behaviour-type thing a person has done, and because of 26 USC 877A, filing back tax for that purpose does not invalidate a relinquishment.
As stated above, I’m not advising to file or not to file, just commenting on how filing, if it is done, affects CLN applications.
*Thanks Pacifica, the information you have provided is helpful.
You’ve helped me to think through and understand the tax issues associated with relinquishment. From what you’ve said, relinquishment technically requires the filing of an 8854. Which is why the advice I got from the lawyer about filing 5 years of past taxes makes sense…If I have not tax owing, there is nothing to worry about.
I think I need to look into what the tax implications would be…to better understand how I might be affected.
I am still going to get a two more legal opinions…the initial consults are free. And I am happy to pass on whatever advice I get.
Many thanks!
Hi Lagoon, would you ask a bear, wolf and lion if you should be on the dinner menu? You’ve got three opinions, but they are all beasts of prey. The same is true of cross border lawyers and accounts.
If you became a Canadian in 1985, you are possibly able to tell the US Consulate you relinquished your US citizenship and that you would like a CLN, and then you don’t have to file anything. Fact is that if you are Canadian, you don’t likely don’t have to file at all even if you “renounced” because the US can’t collect from you here in Canada. They could seize US assets if you have accounts or condos or any other asset in that country.
Thanks Lagoon.
Just want to be sure we’re on the same wavelength on the word “technically.”
That’s how IRS interprets the current law, that even old-time relinquishers have to file 8854. IRS is treating it as retroactive, but no one’s challenged that in court yet.
Nevertheless, some lawyers have posted here about letting the sleeping bear lie, that in reality IRS sources have told them that IRS isn’t really interested in people who left the system long ago. Michael Miller has posted comments on June 19th and Dec18th regarding this.
Everyone’s situation is different and everyone’s comfort level is different, so I don’t like to imply that a person must file or should not file.
But “technically,” yes, as the law is today, even old relinquishments require filing of 8854 — but at the same time, if people are not in the IRS system for years, it does seem that the IRS is turning a blind eye.
*Thanks, I get it…I appreciate your patience in helping me understand the technicalities.
I did see the post from Michael Miller, and had thought about calling him…even happy to pay him for a consult. I’ve gone back and re-read his post, and am feeling somewhat more hopeful.
It is quite likely that the media will be Calling to the Mayor of Tina Turner’s hometown.
It might be smart to let her know why people renunciate
MAYOR
http://www.haywoodcountybrownsville.com/Contacts.aspx
Jo Matherne, Mayor
111 N. Washington Avenue
Brownsville, TN 38012
731-772-1212
E-mail: jmatherne@brownsvilletn.gov
After my email to the US consulate requesting the relevant documents they require (and listing the ones I have), I received a generalised warning of the seriousness of relinquishing my US citizenship along with http://www.state.gov/documents/organization/115645.pdf of the documents and forms I will need.
The Consul’s concern:
I voluntarily naturalized as a citizen of (country) Z on such and such a date, an expatriating act under INA 349(a)(1) with the intention of relinquishing U.S. nationality.
Documents and forms needed:
1. Form DS-4083, Certificate of Loss of Nationality of the United States Certificate of Loss of Nationality (original and 5 copies). 2. Form DS-4079, Questionnaire: Information for Determining Possible Loss of U.S. Citizenship, including Statement of Voluntary Relinquishment. 3. Form DS-4081, Statement of Understanding Concerning the Consequences and Ramifications of Relinquishment or Renunciation of U.S. Citizenship. 4. Certificate of Naturalization issued by (country) Z on such and such a date.
I have filled out DS-4079 and DS-4081. I am confused about the CLN DS-4083 (I thought that’s what I was going to get after I relinquished). There is no “Certificate of Naturalization” specifying the date of naturalization issued by Canada. There is a Certificate of Canadian Citizenship (the wallet sized card with no date), a Commemoration Certificate of Canadian Citizenship (with a date for naturalization, but is missing from my records), and there is my letter from the Registrar of Canadian Citizenship (specifying the certificate card number and the effective date of naturalization). So I am still not sure if I am fulfilling their requirements…
I have followed up asking:
I would appreciate an opinion of the documents/forms I now have that seem to satisfy the requirements for the processing a Certificate of Loss of Nationality (CLN) corresponding to the date of my Canadian naturalization.
1) a Canadian Citizenship Certificate card which is proof of Canadian citizenship.
2) included with the above card a letter from the Registrar of Canadian Citizenship (Citizenship and Immigration Canada) that indicates a) the certificate card number, and b) the effective date of naturalization (1981).
3) a valid Canadian passport.
4) a Certificate of Live Birth issued by the City and County of XXX, USA.
5) forms DS-4079 and DS-4081.
Please confirm if these are satisfactory.
I havent mentioned my US passport “problem” — One step at a time. I may ask or get a case worker who would, hopefully, give me specific details regarding my US passport “blunder” and if the Cdn letter of when I naturalized is sufficient.
We’ll see..
Hi msd,
Just a quick comment. I see the consulate sent you 7 FAM 1260, which is the manual for renunciation procedure (Immigration and Nationalities Act, s. 349(a)(5)). Here’s the link to 7 FAM 1220, which deals with cases of other forms of relinquishment, such as yours naturalising under s. 349(a)(1). I’ll reply more tomorrow, and probably others will be replying soon as well.
Thank you pacifica. Yes, it seems they are routing my case in the wrong direction.
Their most recent reply: a non answer to my query sprinkled with their own questions.
re: provide my full name, birth date and place. If I ever held a US passport.
Another cautionary warning: “As mentioned previously, a renunciation of citizenship is a serious matter and has irrevocable consequences as outlined in Form DS-4081.”
And finally the kicker: “Please note that there is a non-refundable USD$450 administrative processing fee to document renunciation of U.S. nationality.”
So the next step: I’ll inform them of my desire to relinquish as per 7 FAM 1220, s. 349(a)(1),,,, NOT under 7 FAM 1260, s. 349(a)(5). I’ll remind them or ask them that this form of relinquishment has no fees attached. I guess I’ll again tell them I want a CLN back dated to my Cdn naturalization. I’ll ask again if the documents I have are sufficient and remind them of the long distance I must travel for an appointment.
I’m not sure I want to give my full name and birth date, just yet. And I’ll hold off for the time being telling them of my US passport and the circumstances surrounding that (they just want me to bring it if I have one). I still have to get their confirmation of my Cdn naturalization date letter.
I have now been assigned a case worker, with a name and everything. It’s getting scary!
Any advise would be greatly appreciated…
Hi msd,
One thing in the right direction is they didn’t say you needed the 4080, but the rest of their e-mails are frustratingly generic. Presumably you’ll get a real response from the case worker.
Me neither. I’m not familiar with the letter from the Registrar (maybe I got one, it’s not ringing a bell). The best thing, I think, is what you did, ask them.
But it sounds like they didn’t reply to that question at all, sounds like they just sent you a form letter e-mail. This is the first consulate I’ve heard of assigning case workers. That’s probably good thing because it’s a person who presumably will actually read your e-mails, and it gives you the opportunity to work out kinks before you go to the meeting.
I think you’re wise dealing with them in two steps, first make sure they realise it’s a relinquishment, then deal with the passport. Also that you’re referencing the law in your e-mails– makes it easy for them to zero in on what you’re talking about and, as a bonus, shows them that this client knows what they’re talking about.
If you want a reference regarding the $450 applying only to formal renunciations, it’s here in the Code of Federal Regulations at item number 8. At this point, I see it not so much an issue of that you shouldn’t pay $450, but that they’re sending you the wrong e-mails.
They also added these links, which I presume means they are again referring to the wrong statute(s) for my case.
In addition to the links previously provided, please review the information entitled:
1) Renunciation of U.S. Citizenship by Persons Claiming a Right of Residence in the U.S.
http://www.travel.state.gov/law/citizenship/citizenship_777.html
2) Advice about Possible Loss of U.S. Citizenship and Dual Nationality
http://travel.state.gov/law/citizenship/citizenship_778.html
The letter from the Registrar of Cdn Citizenship came with my Cit. Cert. (wallet sized) card. I dont recall ever receiving one before for previous (lost) cards. Maybe they saw my tendency to lose things and added the letter to make the next loss easier for them. lol
ps what would it have meant for them to have referred me to DS-4080?
Yeah, that first link sure doesn’t apply, but the second one, though it starts off listing all seven methods of termination, seems to focus mainly on (1) through (4). You sure seem to be writing very clear e-mails. Hopefully the case worker will get it straight. It seems to happen at the consulates, I’ve noticed, that e-mail to the general mailbox often gets a routine and/or not applicable reply from a clerk.
DS-4080 is the oath of renunciation.
*I would like to thank those who have provided me with advice, and to those who have set up and maintained this website. Through your efforts I have come to understand the difference between relinquishment (which is my case – 1985) and renunciation. And, I’ve come to understand the various interpretations of tax law, which has changed considerably over time.
Armed with this knowledge, I contacted three respected tax lawyers about the specifics of my case – a bit of triangulation of information. While the decisions we each take are personal, I am more comfortable with knowing that 2 out of 3 lawyers share the same line of thinking as to the changes to tax laws over time, and how these changes pertain to my case. The difference of opinion on the course of action I should take comes down to the literal interpretation of the law/regulations as they exist today, vs understanding of these laws from a historic perspective, and the implications for application of the current laws/regulations. While I clearly have different options, I am going to continue to act as a Canadian only. So, I will now move forward with making an appointment in Calgary to file for my CLN, and then sit and wait. I feel, even at this stage, a sense of relief.
Many thanks for your help, and I look forward to reporting on my results.