Lagoon, a pre-1995 relinquisher, recently sought the opinion of three lawyers in the expatriation field, all of whom felt that it is not necessary for relinquishers of that era to file with IRS. Lagoon’s account first appeared as a comment on the Did you relinquish before February 6, 1995 thread, but due to its detail is worthy of a post of its own.
Lagoon writes:
More information about my consult with three lawyers. I am not comfortable posting their names without their permission. I can tell you how I found them though.
One lawyer is quoted on this site. I contacted him for a personal consultation and gave him the details of my case. The lawyer is very conversant with the issues related to relinquishment vs renunciation and the changes in tax law over time. We spoke about risk, and that the issues for relinquishers are like a double low probability combination. If I wanted certainty, the lawyer could, if I wanted to spend between $5-10,000 go forward to get an opinion letter from IRS. If I did that the first consult they would have with IRS would be on a no names basis, to ask questions about whether or not IRS would issue an opinion letter (or something to that effect, they are my lay person words). While I would like to do this, so that there could be something in writing from IRS on this matter, I really don’t have that kind of money to spend. However, going this route would give the ‘certainty’ that we are all seeking about the issues of concern related to the need to contact IRS after relinquishing.
The second lawyer was referred to me by an accounting firm here in Victoria BC where I live. When I took my elderly mom, who is a US citizen and landed immigrant to the accountant, they asked me about my own status. I later had a consult with them about my own affairs, no notes taken during the meeting. They will not take on clients in situations like mine unless the client has consulted with a tax lawyer. The law firm they recommended is in Seattle. The lawyer I spoke with in Seattle is one of the owners of the firm and she is dealing with people from all sorts of nationalities around the world on the issues discussed on this forum. She is the one who said the changes and differences between the state department and IRS differences in the date of determination of reliquishment are a legal theory matter. She essentially said the same thing as the first lawyer – I have a good case for relinquishment, and there should be no need to contact IRS.
The third lawyer is someone in Calgary. I googled to find someone who had spoken about FATCA and was a tax lawyer. Their advice during my initial consult was that I did need to clear taxes, and needed to file for 5 years etc. Upon later reflection, I came to appreciate that their advice was based on a ‘literal’ interpretation of existing law/regulations as they are written. While they acknowledged the evolution of these laws, they did not support my arguement that I had no obligation to the US on tax matters after becoming a Canadian citizen in 1985. It was their office that called me yesterday to say they had done further investigation on the matter, and that all I needed to do was to file for a CLN. They also told me the appointment process I used to book my appointment in Calgary was the wrong process. (Calgary and Vancouver use different processes for booking for relinquishment appointments – I have posted elsewhere on this site about these differences). I did not take detailed notes during the conversation, but I recall them saying they had talked to someone at IRS about the matter. Given they they have changed their advice to me, I am quite happy to go back and to confirm whether this was based on a conversation with IRS or something else. This law firm has several people who for years had worked with IRS.
So…if one had the resources, it seems that getting a good lawyer to go the route suggested by the first lawyer, that is getting an opinion letter from IRS, or at least a consult on a no-names basis, might be the way to go. However, I am not sure you’d get IRS to put something in writing.
So, given the 3 + hours of conversations I have now had with 3 lawyers, I am very comfortable in understanding that the form for advising on the consequence of relinquishment/renunciation is something that did not take into account the fact that so many people technically relinquished long ago – and are now only realizing that documentation of this relinquishment is something that is needed.
Hope this helps.
Hi Gwen – There are a couple of us on this site that are intending to relinquish based on naturalization as minors. Because each of our details are slightly different (ages, years we naturalized, 1 US parent/2 US parents, etc), different Acts, rules and considerations could be applied in each case. If you would like to discuss in confidence over email, the site administrator can put us in touch. I’d be happy to let you know my approach. I am not aware of a successful “minor” relinquishment, but that doesn’t mean there haven’t been any.
I understand the argument from the US consulate is we (minors at naturalization) would not have been of age to have understood the consequences of our decision at the time.
Thanks very much for responding to Gwen, Geri. I have sent your email address to Gwen so you can discuss this offline.
Just to add to what Geri said in response to my comment. Can the fact that we were minors not be seen from the opposite view? That as minors we had no understanding of the onerous burden that being accidental citizens would entail and hence did not agree to, nor sign on, to any of this. I feel it’s unfair to those of us who did not know that there was some arbitrary requirement to formally relinquish something we never believed we were in the first place.
I just now picked up on the recent comments on this thread.
It is my understanding that some persons who were born in the US of one or two Canadian parents and have only lived in Canada as adults, at some time in their adult (post-18) lives have applied for and received a Canadian Citizenship Card (not certificate, but a wallet-sized card) to document the fact they are Canadian citizens in spite of their birth place. IF you recall swearing an oath of allegiance to the Queen of Canada (or just Queen Elizabeth, the wording of the oath changed at some point) as part of that process (I know two such accidentals here in Ottawa who have told me they remember doing that), I URGE you to go to the Citizenship and Immigration Canada website and pay the $5 to get a copy of the citizenship file they almost certainly have on you. If you swore and signed that oath at that time, a copy should be on file, and you should be able to get a copy from CIC via an Access to Information request.
Swearing an oath of allegiance to a foreign country, in whatever context, is one of the clauses that qualifies you for losing your US citizenship if you swore that oath voluntarily (as an adult) and with the intention of relinquishing your US citizenship (or arguably just asserting your Canadian citizenship and exclusively your Canadian citizenship), and if you’ve done nothing since swearing that oath that would refute or rebut your statement of intention to relinquish. In theory, this would qualify you for a relinquishment CLN dated back to whenever you swore and signed that oath.
I don’t know of anyone who has tried this argument with one of the consulates (I recommend Toronto if possible), but if you have such an oath, fill out the form 4079, and take it into an appointment, the worse they can do is turn you down and say you have to renounce instead, if you want to get a CLN. They do not open a file on you on their computer system, as far as I’ve heard, unless and until you’ve sworn and signed their renunciation or relinquishment oath (as appropriate), and until then it’s just a conversation and nothing official yet (in case you change your mind, which they may try to encourage you to do).
Not everyone can do this, but if you recall such an oath that you took, I strongly suggest you think carefully about this and, at very least, spend the $5 and the 30-60-day wait for a reply (depending on their workloads). It’s the Canadian, not American, government that you’re applying to for the copy of the oath, and I don’t believe there’s any risk to you of doing this. Any Canadian can request a copy of any information any government department has on them, without having to give any reason for the request, and (with a very few exceptions that aren’t applicable I think to anyone on this thread) the government has to comply.
I never worked in Access to Information, but I was a friend and colleague of someone who did for a number of years when I was a federal public servant, also my wife and I have both gone through the ATI process, and I know whereof I speak about the time, the cost, and the rights you have (and the fact you’re not outing yourself to anyone by asking for a copy of your file).
It may or may not help, but it’s very low cost and worth it, if there’s any chance that what I suggest above might apply in your case.
PS further to my earlier comment, if you do get a copy of such an oath, I also urge you to get some good legal advice (we can provide off-line the names of a couple of lawyers in Canada) about how to word an affidavit to attach to your State Department form 4079 concerning your probably expatriating act that you can assert you committed when you swore that oath of allegiance to the Queen (Canada). I’m not a lawyer, and what I’ve said is not legal advice, but I think it’s worth paying for an hour or two of consultation time with a lawyer about this, if and when you get a copy of that oath with your signature on it.
PPS As far as I know, a passport application does NOT constitute an oath of allegiance (my recent passport renewal certainly didn’t entail that), and that alone of itself, as far as I know, isn’t going to qualify you for a relinquishment (or renunciation) CLN. But again, I’m no lawyer, and for anything this potentially complicated, I think you need to get some legal advice before proceeding, on how to proceed and how to word it.
@schubert1975
Unfortunately I don’t believe that applying for a Canadian Citizenship card involves taking any sort of oath of allegiance for someone born abroad to Canadian parent(s). I can speak from some personal experience in this regard. In fact it would be rather offensive to require such an oath, because it would imply that the citizenship of the Canadian born abroad was somehow weaker than that of a Canadian born in Canada if the former needed to be supported by some kind of oath and the latter did not. In fact a Canadian born outside Canada to Canadian parent(s) is a natural born Canadian citizen just as much as if they were born in Canada.
I have four citizenships–my birth country, Canada (where my parents were born), the country where one grandparent was born, and the USA where I naturalized.
Shortly after my birth my parents obtained for me a Certificate of Registration of Birth Abroad which served as proof of Canadian citizenship–a physically rather flimsy document which has not been issued since 1977.
In 2002–well past age 18 :)–I was advised by the Canadian consulate to replace the increasingly obsolete Certificate of Registration of Birth Abroad with a more current Canadian Citizenship card–the wallet sized card. I did so–and definitely no oath of any kind was required. I would definitely remember if such an oath was required, because such an oath would have potentially put my birth country’s citizenship in jeopardy based on their laws at the time–and I was very sensitive to such matters.
So–at least in 2002–the process of obtaining such a card did NOT involve any kind of oath.
BTW as a side point I don’t believe that the oath would at any time have been to “Queen Elizabeth”. “Queen Elizabeth” without a number referred to Her Majesty Queen Elizabeth the Queen Mother–a highly, highly respected lady but not the person to whom an oath would be sworn. The queen of Canada is referred to either as “The Queen” or “Queen Elizabeth II” with the number.
@Dash1729 agreed. There was no oath required. I did it in 2011 so its fresh in my mind. I sent my papers in and got my card back and that was that.
Gwen & Geri,
My situation sounds very similar to yours. I was born in the US to a Canadian father and an American mother. I came to Canada as a baby (age 3 months), at which time my father obtained my Canadian citizenship as a Canadian born abroad to a Canadian parent. I grew up in Canada and have never left Canada. I have never lived in the US as an adult and have never earned any income in the US. I have never acted as a US citizen in any way (I have never voted in a US election, have never obtained a US passport, have never had a US bank account, have never owned any property in the US etc.)
I got my Canadian citizenship card in 2002 and like Gwen just sent the forms in and got my card by mail. I do not recall anything involving an oath of allegiance.
I have thought about going to the US Consulate in Toronto to try to get a CLN but I am concerned that they will not accept the minor relinquishment argument and then I will have exposed myself to the US government. If either/both of you are willing, I would be happy to exchange emails to share knowledge, experiences and approaches to this predicament that we find ourselves in.
Mr. A, are you sure you’re not my brother? Lol
I would be happy to speak to you. Your situation is pretty much identical to mine. Geri’s is a bit different since it was a naturalization rather than a notification of birth abroad.
I am out of town visiting relatives for xmas so I will contact you when all the tumult and shouting has died down.
G (now known as GwEvil) 😉
@Mr. A
You need to investigate whether you have been a Canadian citizen from birth (it sounds like you probably are). This is significant because if so, you would not (although confirm this on your own) be subject to the Exit Tax.
If you are NOT subject to the Exit Tax, then the argument for renouncing is strengthened. I.e. you may (but get independent advice) be able to put this whole thing behind you. This of course assumes that the cost of 5 years of tax compliance, etc. won’t be too onerous.
But, you are correct that going to the U.S. consulate is likely to expose you.
Remember:
1. If you are a U.S. citizen you renounce.
2. If you believed you have relinquished then you are looking for a CLN. (I have no idea of your age, but you should explore any circumstances that would mean you relinquished U.S. citizenship).
If you make an appointment to renounce, the consulate will give you a “form” (who could have known). The purpose of the form is to determine whether you may have committed an expatriating act and therefore relinquished your U.S. citizenship.
Again, I strongly suggest that you:
1. Confirm that you have been a Canadian from birth (born Canadian); and
2. Assuming you are a U.S. citizen explore what the cost of renouncing might be. (5 years of tax returns and possible tax owed).
If you were born Canadian, it might be worth paying some money to put this behind you for good.
______________________________
Mr. A and USC Abroad. It seems that Mr. A clearly is a Dual at birth and therefore not subject to the so called exit tax.
The point is, why would someone who left the US at 3 mths of age be obliged to file 5 years of tax returns to satisfy a foreign law? It’s preposterous. Another option is to ignore the whole thing. Don’t mention to a financial inst. where you were born and carry on.
I agree with Kalc. IMHO, it is too early to risk the firing squad.
@KalC
Yep, good advice if Mr. A can ignore the whole thing. Not sure what he is doing here if he can “ignore the whole thing”.
Look, all I am saying is this:
If there is a way to guarantee this is behind him, so he doesn’t have to worry about “ignore the whole thing” then why not consider it? It’s not too difficult to find out what the cost would be to get the CLN.
@USCitizenAbroad, You’re right that to ‘ignore the whole thing’ is not the way to go. I didn’t think that Kalc meant to literally ‘ignore the whole thing’ – a poor choice of words perhaps? I took his comment to mean that to presume a CLN is the only solution, and to rush into getting one when Canada has not yet signed an IGA would be more of a risk than taking a ‘wait see approach’. I am in a similar situation as Mr. A, and have done as you suggested, i.e.got an idea of the cost and risks of ‘coming out’, and although I have decided not to pursue a CLN yet, I am definitely not ‘ignoring the whole thing’ – that would be dumb.
Another thing to consider re: finding out the cost of obtaining a CLN, is that I don’t think anyone can say for sure that it is easy to put a number on the cost. Yes, you can get a quote from an accountant, and/ or a lawyer, but there are risks associated for someone like Mr. A. and myself who have never even been in the IRS system, that can be difficult or even impossible to quantify without having a crystal ball.
For example, if that accountant you hired at $X screws up, you could find yourself with an unexpected penalty bill in the mail for who knows how much.
Question: Could you make the IRS thief jump through the hoops of the Canadian court system to execute its heist? (At least your court costs would be spent in Canada.) I’m presuming the CRA will not be authorized to confiscate and hand over the legal-in-Canada contents of your bank accounts to the IRS. I’m presuming there will be not extraditions. I hope I’m right about that. In the meantime, you should attempt to protect your all-Canadian assets as much as possible, in whatever way you can think of to do that, and completely resign yourself to never going to the USA again to spend any of your all-Canadian assets in that country. You would be risking arrest at the border if you did go there I’m sure.
Actually when I said ‘ignore the whole thing’ I meant exactly that.
Em You overreact as usual. 1. The IRS cannot use the Canadian courts to steal our money. 2. Extradition is too ridiculous to even mention. 3. Why not plan on visiting the U.S.? 4. There is no risk of arrest at the border.
WhiteKat and I are of the same mind. I’m keeping my eyes and ears open, as well as fighting tooth and nail against the implementation of it, but I am not doing anything as of yet with regard to my personal situation. I figure, why open that can of worms until I have to?
@Kalc,
Ok, then I guess we don’t agree. 🙂
Besides the risk to oneself by putting head in sand, to ignore the FATCA threat plays right into Stack ‘O Lies myths. No threat/ignore FATCA = we are all myths = FATCA is a done deal.
Balance is key. Too much fear is debilitating, and can result in rash, bad decisions. Too little fear is just as harmful.
@ Mr. A.,
I sent your e-mail address to Gwen and Geri as requested.
Thank you all for your comments. My gut instinct has been to continue a wait and see approach as some have suggested. We don’t know for sure exactly what the banks are going to do this summer in trying to screen for “US Persons”. Perhaps we will be able to pass this screening because it may violate our Canadian privacy and banking laws to be asked our place of birth.
I have crossed the border several times over the past few years without any problems (no border agent has even asked about my US place of birth on my Canadian passport) but I am becoming increasingly unsure about further travel to the US. I am willing to accept that I may never be able to enter the US again if that is what it takes to avoid having my money stolen by the IRS.
@ KalC
I presumed no CRA confiscation and no US extradition so I don’t think I’m overreacting too much. I’m saying, assume the IRS will succeed in FATCAing Canada, do some pre-FATCA protecting of assets and then wait to see if the IRS tries to go through Canadian courts to collect outrageous penalties. (A US court decision would have no standing here.) I don’t think the IRS would go that far though with so many cases to deal with in Canada. The not going to the USA thing is mostly because it wouldn’t make any difference to me (I know it’s important to others though). I decided years ago to never go there. However, in a FATCAed Canada scenario I do think border crossings would become risky but only IF a person is non-compliant or recalcitrant or whatever label they might use. So maybe that part is overreacting but the USG is well on its way to having dossiers (IRS status included) on everyone and those will eventually be linked to the border crossing computers.
@Em, Mr.A, Kalc, USCitizenAbroad, Gwen
I think that for those who are not currently in the IRS system, even IF these people get outed by FATCA, and then penalized to the max, there is no way the IRS is going to be able to justify collecting from these people who are obviously not really ‘American’, though technically US citizens by virtue of having been born on US soil.
On the other hand, if someone in this situation makes a choice to ‘come out’, applies for a SSN, and starts filing, it is akin, to admitting to being a US tax payer. Once you admit you are a US taxpayer, I would think it would be easier for US to justify penalties for whatever foot faults it might find. Good luck at that point, if IRS comes up with some scheme to force Canada to collect.
In other words, if you don’t believe you should be a US taxpayer, don’t sign up to be one!
‘ if you don’t believe you should be a US taxpayer, don’t sign up to be one!’
Perfect.