This post is excerpted from a post at RenouceUScitizenship.
The presumption of GOVERNMENT benefit wherever the citizen may live
This is my second post on Cook v. Tait. The following comment to the first post appeared at the Isaac Brock Society.
Very well done! That was a lot of research on your part and a great starting point for meaningful thought-provoking discussion.
Although you covered some of them, the list of liabilities for Americans abroad keeps growing as time progresses. Lawmakers like Levin, Rangel, Grassley, Schumer etc will never stop dreaming up new ways for putting the screws to ex-pats.
What I am interested to know is, what government benefits would the Supreme Court try to use to justify the “….presumption that government by its very nature benefits the citizen and his property wherever found,”?
– The right to enter the US? Anyone with a foreign ”visa waiver” passport has this.
– The right to work in the US? Americans abroad are obviously not there to exercise this. Besides, the unemployment and underemployment situation in the US has been less than desirable for many years.
– The protection of the US? How many US citizens abroad are sitting in jail somewhere on trumped up charges while the State Department takes the line that “we cannot interfere with the other country’s justice system?” Does the US government provide the citizen with a public defender if he cannot afford a lawyer him/herself? Does the Embassy charge a fee if the Consular prepares any paperwork on the citizen’s behalf?
– If the US citizen’s property located abroad is stolen, does the US send police to investigate the crime?
Anyone who understands the situation can see that citizenship-based taxation is a one-way street when it comes to cost vs. benefits. In my opinion, many more Americans abroad would have already renounced or relinquished US citizenship if the process were easier to navigate and people were not so afraid of being trapped by compliance and exit tax issues– barriers that were purposely put in place to block the outflow of productive people.
This second Cook v. Tait post is an attempt to answer this question.
In Cook v. Tait Justice McKenna writes that:
In other words, the principle was declared that the government, by its very nature, benefits the citizen and his property wherever found and, therefore, has the power to make the benefit complete
Note the language: “The government benefits the citizen wherever found”. The idea is that because the government “by its very nature” benefits the citizen wherever found, the government has the right to tax the citizen wherever the citizen is found.
The constitution and the government are different things:
The constitution is the document that describes the basic framework and structure of the country. This includes in the case of the U.S. Constitution:
– three levels of government: Executive, legislative and judicial
– jurisdiction between the states and federal government
– limitations on the powers of government in relation to citizens/residents (14th amendment, etc.)
The purpose of the document is to ensure that no one level of government can get too powerful.
The constitution is separate and distinct from the government. What does this imply on the issue of how citizenship and government interact?
The constitution and U.S. citizenship
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
The 14th amendment says that anyone born in the U.S. or a naturalized citizen is a U.S. citizen. In the case of naturalized U.S. citizens Congress provides the rules for naturalization. But once naturalized the new citizen has the constitutional protections guaranteed by the 14th amendment.
This is why (at least in the case of citizens born in the U.S.) that the government cannot take one’s citizenship without demonstrating that the citizen voluntarily performed an expatriating act with the intention of relinquishing U.S. citizenship. This principle was established in a series of cases involving citizenship which started with Afroyim v. Rusk. An excellent discussion of this series of cases is here and here.
Citizenship is part of who you are
The purpose of the constitution is to establish certain rights that are independent of government and in the case of persons born in the U.S. – U.S. citizenship is a right. The principle that citizenship is a right of the individual is guaranteed by the constitution. It is not determined by government.
Incidents of citizenship
I am defining “incident of citizenship” as a right you get by virtue of being a citizen – without regard to whether it is recognized by government. An incident of citizenship” is not granted by government. It cannot be touched by the government. For example the right to keep your citizenship is an “incident of citizenship”. The right to “relinquish” is an “incident of citizenship”. What are other incidents of citizenship? What do they include? Citizenship is owned by the citizen and the citizen can either keep it or relinquish its. I welcome your comments on the following:
– if a U.S. citizen has the right to enter the U.S., is this an “incident” or a “right” of citizenship?
– if a U.S. citizen has the right to leave the U.S. (which I don’t think he does), is this an “incident” or a “right” of citizenship?
– if a U.S. citizen has the right to work in the U.S., is this an “incident” or a “right” of citizenship?
Can it be that the “incidents of U.S. citizenship” are restricted to those enumerated in the Constitution?
Government granted “rights of citizenship”
I am defining “rights of citizenship” to be additional rights given by the government. For example a law that gave only U.S. citizens the right to wear blue shirts would be a “right of citizenship”.
Incident of citizenship vs. Right of Citizenship
An “incident of citizenship” exists irrespective of government. A “right of citizenship” would be a “benefit given by the government”.
“Rights of citizenship” and “Incidents of citizenship” tend to be lumped together
It appears that little thought has been given to the rights of U.S. citizenship. Something can be a “incident of citizenship” only if it is something that the government cannot take away. The Supreme Court has suggested that an “incident of citizenship” is the right to renounce citizenship.
It is interesting to see what the U.S. Citizenship and Immigration Services says (this is a government document and is interesting but not binding) about the “Rights and Responsibilities of U.S. Citizenship“. This is also an interesting example of blurring the “rights” and “incidents” of citizenship.
Few “rights” are specified. Note the responsibility to pay taxes. Note also that the list on the left includes some “incidents of citizenship” and some “rights of citizenship”.
Who you are vs. What you can do
The government cannot change “who you are” (that is you are a U.S. citizen) but it can regulate what you can do (criminal law prohibits certain activity) and what you must do (example the payment of taxes). The power of the government to regulate the “incidents of citizenship” is more limited than the power to regulate the “rights of citizenship”.
And the answer to the question of what government benefits the could be used to justify a “presumption of benefits” is:
I don’t know. But, I think it is important to recognize that the government CANNOT identify the “incidents of U.S. citizenship” to justify citizenship-based taxation. (“Incidents” do not come from the government.) The government would have to identify “rights of U.S. citizenship” to justify citizenship-based taxation. (“Rights of citizenship” are given by government.
The distinction between “incidents” and “rights” is important to answer the question proposed in the comment?
I would be grateful for comments that would help identify the “incidents of U.S. citizenship”. In other words what are the opportunities/liabilities/disabilities associated with U.S. citizenship that the government cannot take away?
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Another “privilege” of being a US Citizen is that if you are killed in a foreign country, they will send the FBI to investigate. It’s too little too late if you ask me, because you are already dead!
@geeez, I am not sure that the FBI is sent in all cases. Perhaps in high profile cases such as the Mumbai mass shootings or obvious ones like the East African Embassy bombings or the USS Cole. If you are killed in some sort of common-criminal action such as being in the wrong place while a holdup was taking place and there is no interest in the case in terms of threats to the Homeland, then I doubt the FBI would show up. In the case of dual-nationals I wouldn’t expect the FBI would show up in Europe unless there was some greater interest.
One interesting benefit is that if you are a child molester in a 3rd world country such as Cambodia, ICE will be collaborating with local authorities with agents on the ground to bring you to justice.
While we might all agree that child molesters should be pursued, and that Cambodia probably needs some help in doing so, what if ICE decided to do the same sort of clandestine surveillance with the tacit and unofficial cooperation of the local police against suspected tax evaders abroad? Also, I don’t understand how ICE can subsequently prosecute people –even for pedophile rape– back in the US in light of the 6th Amendment right to a trial by jury in the place where the crime would have been committed.
The sort of program depicted in the above video sets a very dangerous precedent, based upon prosecution of crimes which appear the most heinous. The idea could be escalated to include other things that USPs do abroad that might be against US law but which are allowed under exersizes of freedoms in other countries. Another example: in many European countries, posession of a small amount of weed is tolerated, or is only a minor infraction with no serious legal conséquences. Could ICE then decide to go after USPs smoking joints in a Coffee Shop in Amsterdam and have them thrown in jail back in the US?
Failure to file FBARS, 1040s, and FATCA forms already carry criminal penalties (although it has often been argued that Justice will only prosecute in the most severe cases). But it is not a crime in Switzerland to fail to file US taxes. The alledged crime would be committed in Switzerland if the accused lived in Switzerland. Hence if it were prosecutable the accused would have the right to a jury trial in Switzerland. The ICE action in Cambodia sets a dangerous precedent that governments might accept by appeasement. (Sure, we can informally accept your assistance in nabbing pédophiles). Next day, ICE says: you know how we have been helping you nab American pédophiles, why don’t we help you cut back on all of those backpacking kids who smoke weed in your country, get drunk and leave litter all over the place, you can fine them for littering and we’ll jail them back in the US for weed posession. Oh, how did that work? Well? … Ok, now, why don’t we operate the same way with US tax evaders living in your country?
No matter what the excuse given for it, such as looking for pédophiles, extra-territorial action and compromise on the sovereignty of a nation sets dangerous précédents. The same thing is happening with FATCA, and governments are appeasing.
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