The phone rang this morning. For a few minutes, my actual phone number was on the blog, by mistake, and one very quick reader, Dianne, phone me from Winterpeg. Not long ago, she learned that the United States still considers her to be an American, even though she hasn’t believed herself to be American since the age of 18. So I asked her to write up her story so that the Isaac Brock Society could help her sort out this issue. Here it is:
I was born in the USA in 1957 to two Canadian parents. My father was working on his Phd there and they returned to Canada when I was weeks old. Since then I have never lived in the US. I do not have a US passport or social security number. I have never voted in the US and do not own property there. I have lived and worked my entire life in Canada. It was my understanding when I turned 18 (in 1975) that if I did not actively seek American citizenship I would be considered only Canadian. I was shocked to hear that the IRS may consider me American. I am interested in finding our how to clarify that I am not an American citizen.
@petros, Indeed she never applied for a US passport and had she done so it would have been refused on the basis that she had performedn an expatriating act and indeed was not a US citizen. It does sound like a solid argument to me, a layman, but really don’t know for sure if it would stand up. The best thing is for her to stay clear of the IRS, I would think.
Perhaps I am beiing over optomistic but since FATCA and FBAR overkill enforcement has broght into focus issues that have never been seriously addressed before, I am hopeful this focus may bring these issues to the forefront. I am not predicting it will happen, but hopefully enough sticks of dinamite are being placed to perhaps bring the monstrous policy of citizenship-based taxation into focus of other countries whose citizens, by their dual US nationality, are being so adversely affected. Switzerland is a mere mouse compared to the elephant United States, but the fact that Swiss citizens resident in the US are having their Swiss bank accounts closed down would seem to me to be a pretty disturbing action for that government which rightly prides itself in the excellent relations it maintains with its expats everywhere in the world.
Let us all work toward this, which is the basis of almost all of the problems with FATCA and FBAR.
@Dianne
On this thread you have just received some of the best advice that money CANNOT buy. The reason is that nobody here has any interest in generating fees from you.
If you go to a lawyer and he/she tells you something different, would appreciate it if you would post that advice here. As Tim points out that are very few lawyers who understand the law of U.S. citizenship from 1957 to 1986. One must have actually lived it to understand it.
@ Dianne, here is another citation from a lay expert, writes regarding 1986 law that changed the presumption of loss of citizenship. Note what he says about conditions which existed previously:
So before 1986, the United States would have stripped you of your citizenship and you would have no means of presenting contrary evidence.
http://www.richw.org/dualcit/law.html
Also regarding 1978 law change: Did you vote in a foreign election before 1978?
http://www.richw.org/dualcit/law.html
[Apparently, the Supreme Court had already made that law unconstitutional in Afroyim v. Rusk, in 1967. See http://en.wikipedia.org/wiki/Afroyim_v._Rusk However, this is the summary of the ruling:
Thus, voting in foreign election was a potentially expatriating act, provided the person’s intention was to relinquish US citizenship. This should go in Dianne’s argument, provided that she voted before the law was changed in 1978.]
Dianne google Monty Python ‘How not to be seen’
also remember what Steven Mopsick has said
“The whole issue of the IRS chasing after Canadians through treaties and foreign litigation is a red herring which is not going to happen. The IRS has enough trouble going after all the low hanging fruit it has in front of its nose inside the United States to even think of expending valuable resources on dubious, expensive, divisive and unseemly extra-territorial collection of routine penalties or tax outside the borders of the fifty States,”
and
“Phil and I are not permitted to advise you to “not obey the law.” But as Phil’s hilariously funny U Tube Video (which is an early 1950′s US Government civil defense film about what to do in the event of an attack on our fine homeland by way of the detonation of an atom bomb) says–this may be a good time to “duck and cover”!”
Respectfully submitted,
30 Year IRS Vet
I was also born in the US in the 60s to Canadian parents. When I moved to Canada as a child the Canadian government actually processed paperwork for me as a landed immigrant. It was only recently that I discovered I was a dual citizen at birth.
@Dianne – I did not have the patience, energy or money to fight the US government on whether or not they have the right to my financial information. I wanted the freedom to travel to/from the US as I too have family there including an elderly parent. Therefore I filed 5 years of tax returns with the IRS plus FBARs then I flew to Calgary (renunciations cannot be done in Winnipeg) and renounced at the US Consulate in late 2011. Then I filed my 2011 IRS return and FBAR. The IRS has processed all 6 of my returns and I ended up paying less than $100 to them in taxes/penalties. This week when I called the IRS I was told that my Social Security Number is invalid which I hope means that my renunciation has been processed.
I made a choice to do all of that on my own rather than contact an accountant or lawyer. My theory was that I hoped that my costs to the IRS would be less than to tax professionals… The IRS has definitely spent more money on my returns than they collected!
When I filed the FBARs I knew there was a chance the US Gov could penalize me but I had decided that I would fight them or just not return to the US. I have not been contacted about my FBARs and hope that I never am! I did not have a problem paying the taxes because although I do not agree with it, that is the law of the US that all citizens file returns. However, regarding FBARs, I refuse to pay a penalty for simply saving money in my country of residence!
I did not like doing any of this paperwork for a country I left 40 years ago but it was worth it for me to have peace of mind that I can go in and out of the US as a proud, 100% Canadian citizen!
big p.s. to Dianne — each of our situations is completely different and I am not recommending anything to you — simply sharing what worked for me. Since I did not know that I was a Canadian citizen at birth, I obtained a US passport and social security number as a young adult which is very different than you. Then in my late 20s I submitted the paperwork for my Canadian citizenship — which because I was a citizen from birth I did not have to do a citizenship ceremony – simply received my citizenship documentation by mail.
@Peg11
Well done.
I’ve been doing a fair amount of research and may have found some relevant sections.
INA 1952: b) Any person who is a national and citizen of the United States at birth under paragraph (7) of subsection (a), shall lose his nationality and citizenship unless he shall come to the United States prior to attaining the age of twenty-three years and shall immediately following any such coming be continuously physically present in the United State(s) for at least five years: Provided, That such physical presence follows the attainment of the age of fourteen years and precedes the age of twenty-eight years.
INA 1972 Amendment: Section 301 (b) Any person who is a national and citizen of the United States under paragraph (7) of subsection (a) shall lose his nationality and citizenship unless (1) he shall come to the United States and be continuously physically present therein for a period of not less than two years between the ages of fourteen years and twenty-eight years; or (2) the alien parent is naturalized while the child is under the age of eighteen years and the child begins to reside permanently in the United States while under the age of eighteen years.
INA 1978 Amendment: Act of October 10, 1978 (92 Stat. 1046) repealed subsections (b), (c) and (d) of section 301 of the Immigration and Nationality Act of 1952, effective as of October 10, 1978.
This is from a website American Citizens Abroad
http://www.aca.ch/op4b.htm
However, I have found these exact references on other sites such as law institutions, etc.
My opinion, Dianne, is that you are not a US citizen on many fronts. There is a preponderance of evidence clearly showing that you’ve done nothing to ever claim US citizenship, and that you have lost it in several different ways.
Now, to be honest, I have special interest in proving this, as I, while born to US parents, came to Canada as a small child, and became a Can citizen while a minor, so it’s in my best interest to interpret the various INA acts and amendments to my advantage – NOT a US citizen.
Just so you know, Dianne, I am not filing US taxes, NOT filing FBARs and am sticking to my guns absolutely that I am not a US person. However, I do understand that each of us must do what feels right personally. Whatever your choice, you’ll find support here, I have no doubt of that.
@outragedcanadian, Was this modified by later legislation to invalidate this loss of citizenship? Even if it was, there is certainly a solid argument that a person who met the criteria when it was the law of the land lost US citizenship.
How could citizenship be restored by subsequent legislation with neither the person’s knowledge or consent?
@ Roger That’s where the ex post facto comes into play. A later law cannot be retroactively applied to detriment of the wishes of a citizen. It is a constitutional right.
Outraged wrote:
Good for you. I think this makes it much harder for the IRS to stake claim against you. First they must prove that you are a did not lose your citizenship as you have claimed.
@Petros, does the
“cannot be retroactively applied to detriment of the wishes of a citizen. It is a constitutional right” apply to all laws, or just to citizenship laws?
I ask this question because when President Ford signed the Tax Reform Act of 1976 on October 5, 1976, the effective date of that Act was retroactive to January 1, 1976. Was that unconstitutional?
That is the tax law that “sent me packing’ to move back to the US from Brazil, which I did in January 1977. There was a lot of grumbling about that law because it brought several hundred thousand American living abroad back home. It’s effective date was in fact delayed by one year by subsequent Congressional action, but that did not happpen until well over a year after its original effective date. The reason was not because it had been enacted retroatively but because it caused such complete caos with Americans abroad that Congress had second thoughts about what it had done. But the damage had already been done.
@Roger, most of the laws do contain dates when they are effective, and from what I’ve read, it’s almost always from that date forward. I have found some that explicitly said they are NOT retroactive. I don’t have the references handy right now, but I’m fairly confident that they cannot be applied retroactively. Or, at least that’s my position.
@Petros, and the way I read all this is that if the US wants to claim me, it’s on THEM to prove it. I cannot see them going to such lengths for such a tiny minnow as myself. Imagine all the work involved to prove that they can re-claim the hundreds of thousands of us…I don’t think it’s feasiblle.
@Roger, 1994 amendment: – Amended Section 324 (d) (1) allows former U.S. citizens who lost their citizenship through failure to meet the former conditions of physical presence in the United States to retain their citizenship to regain their citizenship without having to file an application for naturalization.
— If they had to REGAIN it, then they LOST it. —
From US department of State Foreign Affairs manual:
The intent of Congress in repealing Section 301(b) is made clear in The Report of the House Judiciary Committee (House Report 95-1493) which stated that Congress desired to repeal the section
prospectively in order not to provide a basis to restore citizenship to those who lost their citizenship prior to enactment of the bill.
However, I am well aware that almost everything depends upon who’s doing the intrepreting…
@outragedcanadian, is it retain or regain? You did use both words and so please check and re-clarify. Thanks! This is very helpful. But you are so right, it depends on who is doing the interpreting.
@saddened123; re; “I hate what this has done to the US Citizens abroad.. It is true crime.. the cost of health and our savings.. THE US GOV. SHOULD BE ASHAMED. NOT THE COUNTRY I USED TO BE PROUD OF!!
NO WAY!!”
Hang in there @saddened. I’m glad to see your sparky spunky side showing!
: )
@Badger, Thanks for your support!! This situation we are all in is pure crap!! Hate It!
I am amazed and humbled that so many of you have taken the time to write comments. I am very grateful. In terms of the voting question – I have voted in Canada both federally and provincially. Unfortuately according to my research there were no federal elections between 1975 and 1978. Pierre Trudeau was in power from 1974 – 1979. There was a provincial election in Manitoba in the fall of 1977. I do not know if voting in a provincial election is enough.
@outragedcanadian
As I understand the 1994 Amendment, the US offered to those persons (like myself who became Canadian in 1972), who performed an expatriating act, the right to ‘reclaim’ U.S. citizenship if we could show we had not ‘intended’ to relinquish.
In fact, I have a University friend, who became a Canadian in 1974, was sent a CLN in 1982 (without asking for it) and then decided in the early 1990s that she might like her U.S. citizenship back. She filed for it, told them she had only become a Canadian in order to obtain a particular job with the Ontario government as she needed to support her two sons (as a single mother) and she now has her U.S. citizenship back. Bet she regrets it now!
@Roger, I read it to mean that if they didn’t retain their citizenship by meeting the conditions of residence, then they could regain it.
This is another site (an immigration law firm’s site).
‘However, as persons who have previously lost citizenship for failure to comply with prior retention requirements may now regain their citizenship by taking the Oath of Allegiance, the issue is no longer as significant as it once was. ‘
However, obviously I am certainly no expert, and I have a particular slant/bias I’m looking for. I’m not sure if all of this can even be legally used, and it is probably dependent upon a person’s particular situation. I think only a good lawyer well versed in the issue (as others have stated) could say for sure. It’s all mixed up with children born abroad to US parents, children born in US and then taken as minors to other countries, etc. I’m finding it difficult to get a really concrete, defined answer for my situation.
But it bolsters MY personal belief I’m Canadian only.
@Tiger, thanks for that real case scenario!
@Dianne, this site is a sanity saver, for just that reason..
@Saddened, probably because I was so young when I left the US, I didn’t have any feelings about it as my birthplace. I do now, and they’re not good, unfortunately. However, I think I can understand your feelings, as my mother, I believe, feels much the same as you. From what I’ve read here, and from others I’ve talked with, there is a prevailing sense of betrayal. For me, the anger I feel does a fairly good job of battling the depression of being caught in this situation. Let’s keep our chins up and fight in each our own way.
@outragedcanadian, You are right we should keep our chins up and fight. I also feel lots of anger, I don’t really care about what happens to me. I just hate that it is dragging our children into this. As I see it, it is a no win situation. They either have to comply or stick there head in the sand. Which is the best?? Either way it may bite us in the A@@.
I wake up 10 times or more a nite, it is more than a nitemare..it is hell.. I admire the one’s that are strong and just don’t let it bother them.. I have alway been a easily frightened and nervous person. I know it is not the end of the world, but it is just a miserable way to live right now. I don’t think I will ever complain again after this nitemare. I just wish it would go away..
Must just keep fighting! Thank God for this site, so many wonderful people.
@Diane, You may want read my life story here on Brock. I was born in 1956 in Florida. My husband (Canadian born, US citizen through his father, never lived in the US) and I decided to enter 2011 OVDI, (still in process) because we at the time felt our own circumstances required it. My MP has taken up our cause and I am using my voice to the best of my ability. I don’t want to give up my US citizenship under these circumstances, but do not I wish to be a citizen of a country that would do this to its people. You are going to die on a hill, you have to decide for yourself which one you can live with.