With thanks to tiger who alerted me to this, I am linking two posts authored by Stephen Flott of Flott & Co. PC The Accidental US Citizen. It furthers discussion we have been having here on these very questions for “Accidental Americans.”
[If the following legal opinion is correct, finally I will have done something right (in the US realm) for my developmentally delayed adult son by not having registered his “US Birth Abroad.” And, if this is true, I’ve just ducked damage by a major flood in southern Alberta and nonsensical US tax and reporting compliance for my son for the rest of my life and his — my good KARMA vessel is getting low. Of course, this is just one subset of those deemed “Accidental Americans.” In my common-sense view, NONE of ‘supposed’ US Persons Abroad who are somehow classified as “Accidental Americans” who had no choice to whom they were born or where they were born should be caught up in the absurdity. The only way to solve that is a change by the US to Residence-Based Taxation. Let’s get real; let’s get fair.]
Accidental American – US Citizenship: Self-Executing or Not? (May 23, 2013)
Ms. X was born in the United States. She is a US citizen by birth. Her US citizenship is self-executing and non-consensual. Her birth certificate is all that is needed to establish her citizenship.
Let’s say she goes to Canada and enters as a landed immigrant. Her entry into Canada as a landed immigrant is not itself an expatriating act. Section 349(a)(1) and (2) of the Immigration and Nationality Act provide that swearing an oath of allegiance to a foreign sovereign is an expatriating act if taken with intent to set aside US citizenship. As soon as Ms. X swears the Canadian citizenship oath before a Canadian Citizenship Court, she will become a Canadian citizen. If she swears the oath with intent to set aside her US citizenship, she will then complete a Form DS-4079 and establish that she relinquished her US citizen upon becoming a Canadian citizen. Her oath of allegiance to Canada is sufficient when combined with her statement of intent to extinguish her US citizenship. However, the mere fact of becoming a landed immigrant is not sufficient as it does not involve the taking of an oath of allegiance and thus, by itself, is not sufficient to expatriate her.
Mr. Y was born in Canada to a Canadian father and a US citizen mother who resided in the US long enough to give her the right to pass on US citizenship to him. However, his mother takes no steps to register his birth abroad or otherwise assert US citizenship and he has not done so either. Mr. Y is not a US citizen automatically, that is, his citizenship is not self-executing. The language in the Section 301(a) states: “The following shall be nationals and citizens of the United States at birth:” [at which point the section lists seven subcategories, including subsection 7 dealing with children born outside the United States “of parents one of whom is an alien, and the other a citizen”]. Most people, including virtually all US lawyers interpret the “shall” to be mean Mr. Y automatically became a US citizen at birth.
However, I believe that “shall” in the context of subsection 7, where one of the child’s parents is not a US citizen and the child has obtained citizenship by birth or heritage of a country other than the United States, to mean that the child has the absolute right to US citizenship upon providing adequate proof of his heritage AND that his US citizen parent meets the residence requirements of the section.
However, Mr. Y’s citizenship is not “self-executing”. Someone must do something to establish his citizenship. His mother did not obtain a certificate of registration of birth abroad before Mr. Y turned 18 and cannot now do so. Mr. Y has not yet sought to assert US citizenship by obtaining proof of same which he would do by obtaining a US passport. That process would require him to present evidence of his US citizenship. He is, of course, free to do that at any time he wishes. However, until he takes some action, his US citizenship in an “inchoate right”, that is, something that he can assert and cannot be taken away from him by the US government. Clearly, he must be a “citizen” to obtain a passport. However, being “entitled” to citizenship is not the same as “being” a citizen. In other words, US citizenship in Mr. Y’s case is not self-executing.
In the absence of any action taken by Mr. Y, the question then turns to whether the US government could force him to obtain a US passport. Indeed, there is no case in which the US government has forced a person in Mr. Y’s position to obtain a US passport. Thus, the “automatic” citizenship position fails. The real question turns on whether US citizenship for those born outside the United States is mandatory. Clearly, it is not.
As a practical matter, Mr. Y has nothing in his official citizenship file in the United States. His Canadian passport indicates a place of birth in Canada. Thus, there is no outward evidence that he is a US citizen and, in the absence of obtaining a US passport, nothing to identify him as a US citizen. Both as a legal and practical matter, Mr. Y is not a US citizen and is not identifiable as a US citizen. He may, of course, choose to apply for a US passport and will undoubtedly obtain one should he do so.
and
Citizenship Article Series: US Birthright Citizenship (June 13, 2013)
Birthright Citizenship — The Absolutely Clear Case
All persons born within the borders of the United States are citizens. It does not matter if their mothers were in the U.S. legally (as tourists, for example) or illegally, or whether the children leave the United States the day they were born. It bears repeating: all persons born in the U.S. are automatically citizens. This is the absolute citizenship situation.
I left this comment, which is awaiting moderation:
calgary411 | June 29, 2013
Your comment is awaiting moderation.Thank you for this blog entry. We are discussing the very same at Comments. I will post as a new thread your above article. I am awaiting confirmation from Sylvia D. Johnson, General Consul, US Embassy in Ottawa, Canada that advice given in three instances as reported at Isaac Brock is indeed correct — that they do not have to go through the process to obtain US citizenship if they were not registered as births abroad to US parents to then be able to renounce that US citizenship.
We all (especially “Accidental Americans” born in a country abroad to US parent(s) but not registered as US births abroad) need absolute clarification on if there is an OPTION of US citizenship, to not be blindsided by the US further down the line (worst-case scenario). I want to know:
Is a person born abroad to US parents (with all the time definitions) automatically a citizen from the time of birth?
OR
Does that person have to a claim to US citizenship if he/she so chooses upon becoming an adult?I know that many don’t think this necessary, but I’d rather go forward with an absolute answer. I just think a big segment of US Persons Abroad should not have to find work-around’s to live normal lives in other countries. Why don’t we absolutely know?
bubblebustin,
I doubt I will ever have the courage to cross the US border with my son. I and he are US criminalized.
As I understand it, Roger, the answer is “yes”. All states have the right to determine who belongs and if that overlaps with other states’ sovereign right to do the same, well, so it goes.
Are there limits to this? Yes. There must be a “genuine link” in there somewhere. But that can be interpreted very broadly or very narrowly.
@SwissPinoy I hope you were only joking when you suggested that Canada should take out its frustrations about the US tax regime on Canada’s own expats living in the US–with penalties even harsher than those currently experienced by US expats in Canada.
Those of us who are dual citizens living in the USA are clearly the natural allies of the Isaac Brock Society and I hope we are not seen as the first and best target for the Isaac Brock Society’s frustrations. It is true that we aren’t subject to CBT from Canada assuming we’ve properly severed our residential ties with Canada–however we would be subject to CBT if we ever returned to Canada and this can affect our financial decisions now. Moreover US dual citizens are definitely subject to FBAR and FATCA and US tax rules no matter which side of the border we live on. This can limit our financial choices and retirement choices, especially if we ever expect or want to retire or live again in Canada–just the same as it can for a dual citizen in Canada.
I hope that it is NOT being proposed to have an arms race between the US and Canada to see which country can penalize its expats the most.
Calgary411: The border guards and the IRS didn’t even used to talk to each other, but now they do. They are practically an enforcing arm of the IRS today and are on the lookout for closeted US citizens they can shake down. Successfully doing this might even mean a bonus for them. Just think of that! catching US citizens illegally attempting to sneak illegally into the US with a foreign passport.
Airlines know better than to allow US citizens to board a flight for the US using a foreign passport. Stiff fines for violating US immigration laws will most certainly be levied if they allow one one to slip on board.
@Dash1729, I was thinking more along the lines of bluffs and reversed psychology, where the US would realize the problem when experiencing it from others. Other than that, I think that it makes the most sense for the US, Mexico and Canada to be favored trading partners with open borders.
@Roger Conklin asks: “I understand your concerns. Does the US have any sovereign right to declare that a person born within the territory of another sovereign nation is a US citizen and therefore subject to US income tax on income from sources outside of the US?”
That is two separate questions.
While the US cannot make “everyone in the world” or even every alien resident of the USA a US citizen if that person was not a US citizen by reason of birth in the US or birth to (or in infancy adoption by) a US citizen, it has the power to attribute its nationality to every child born anywhere to a US citizen. (The attribution of nationality by reason of residence by an alien was tried once years ago, I think by Argentina, and withdrawn after complaints by other countries.)
As you know, jus sanguinis is the major means of attributing nationality. The US can hardly be faulted for following that rule.
Some countries (Iran, Greece…) make it virtually impossible to renounce nationality, although Greece’s notorious Art. 19 (now abrogated) used to withdraw it from expatriate Slavs and Muslims). Still, one could argue that the US imposition of unconscionable taxes after renunciation is contrary to human rights. Except that the arbiter of that is the US Supreme Court: the only question is what, if any, help Canada and other countries will give to enforcement. And that’s the second question implied by your query.
The huge number of noncompliant “US Persons” worldwide who have no intention of becoming compliant and who probably will never obtain or renew a US passport or travel to the US makes the draconian US tax-law penalties arbitrary and capricious. The IRS is dependent upon fear for enforcement. It is never good to have a law on the books that is draconian and largely unenforceable beyond the borders of the state.
Starting after WW II, nationality became a source of rights and much less a source of obligations. For US citizens the obligations are: taxes, military conscription (if and when in force), abstaining from treason, and returning to the USA when summoned to testify in court or when indicted for a crime. The notion of “effective nationality” lost relevance and treaties such as the Treaty of Rome establishing the EC implied that a country could not pick and choose which foreign nationality to attribute to a person to the exclusion of others. (Sorry for the legalese here and in the preceding posting but these are legal points.)
It seems to me that states of residence may revive the notion of effective nationality, and (as I’ve said before) insist on their right to treat persons holding their nationality (as well as that of another state or states) as if they only held that one nationality of the state of residence.
Canada, Switzerland and other countries may give up their banks but will they give up their resident citizens to the USG? The UK-US extradition treaty and the EU-US draft treaty provide for broad, asymmetric extradition in the name of fighting terrorism. But the UK treaty has been used almost exclusively by the US to prosecute economic crimes. I would not be surprised to see an effort to extradite “tax criminals”. But whether that succeeds against dual citizens, and if so for how long, remains to be seen. Most extraditions thus far have been for VAT “carousel fraud” or where other crimes have also been involved. Fortunately money laundering (I am told) cannot be alleged where the only crime is nonpayment of taxes (because, apparently, there are no separate proceeds to “launder”).
As people know extradition is my only worry. I do not think not filling or paying taxes for A Canadian citizen and resident is not extraditable The failure to supply correct taxpayer ID has a slim possibility of being extraditable. Because I sign that closing agreement note. The wording is not clear but it may not be decided by a Canadian court. I think I will apply for old social security number and then supply them with the number and ignore taxes. That stupid survior right condo has negative capital gains. I really having a hard time making up my mind. What the IRS has done in the past does not mean what it will do in future.
” I do not think not filling or paying taxes for A Canadian citizen and resident is not extraditable The failure to supply correct taxpayer ID has a slim possibility of being extraditable.”
Money. Either you are having us on or you are not thinking straight. I have difficulty deciding which.
Overreacting to threats that most would perceive as minor is often a symptom of post traumatic stress disorder. I believe that more than a few of us may be suffering from PTSD resulting from the USG’s policy of persecution toward US persons abroad.
You’re right, bubblebustin. The continuing support of this site and hopefully helping others learn what they need to make their decisions, for me, for monalisa, for how many others is therapeutic. We have and will continue to make a difference.
KaL C
The closing document I signed had a requirement to supply IRS with correct TIN. They indicated it was just my name.. it was notarized and the Canadian notary has my driver license info.This had the usual perjury warning on it. My old social security number may be easily determined if the IRS request this info.
Past history show the USA has not gone after this issue but this does not indicate that they will not go after people in future.
Computer power double every 1.5 years Moore law and the USA will be running horrible budget deficit so they will be pursing people who have no political influence ( I can not vote) very hard.
If I am to get my old social security number and supply them with it I get rid of the legal obligation on supplying them with the correct Taxpayer ID. My understanding if I request a new TIN it will pop up a warning.
My logic is
The CRA and Canadian court will not collect IRS taxes and penalty. So where is the penalty of supplying them with correct taxpayer ID? If I do not file USA income taxes as a non resident am I not protected. There is no non resident taxes in Canadian tax code. To be extraditable it has to be a crime in Canada.
Is there a flaw in my logic? I do not want to sign any more USA form with the subject of perjury.
I may get nasty letters from the IRS. but I will probably get the same nasty letters for not filling the proper Taxpayer ID.
I would like to get my alien file and see if I-407 can be confirmed, See if it was postdated back to 1980s. I will be badly hurt from a wealth tax (FBAR) not a income tax. In addition my social security number was not changed when I got geen card. I was out of country by then.
I am still trying contact lawyer on this issue but they usually do not want to talk until there is a criminal indictment.
KalC
I am a very nervous person about taxes and probably does not use all the deduction from CRA. I feel Canadian taxes are logical and fair. USA taxes are obscene.
Sorry KalC
” I do not think not filling or paying taxes for A Canadian citizen and resident is extraditable The failure to supply correct taxpayer ID has a slim possibility of being extraditable.”
Remove extra not
Money.. OK. Taking out an extra ‘not’ helps. Now take a deep breath, relax a bit and then either give them your old social security no. or better still do nothing. They do not have the time, energy ,interest or resources to bother with you. They have much bigger fish to fry. Good luck.
The chances of one being extradited or arrested at the border for tax offenses following a sealed indictment unknown to the taxpayer for tax claims that have never been formally assessed by the IRS are virtually nil. Although some European countries have issued European arrest warrants for trivial offenses http://www.theguardian.com/law/2011/apr/10/trivial-undermine-european-arrest-warrants this is not true as between the USA and the UK. The link below is to Bruce Zagaris’s 2003 law review article, probably the definitive word on the subject although it relates what states can do and what they are attempting to include in future treaties, rather than actual practice: extradition for income tax crimes remains rare and is normally in connection with other crimes. He also discusses the interplay between the Revenue Rule and extradition.
http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1553&context=ilr (including a country-by-country summary)
@Jane Doe Belge: The best newspaper in Belgium is De Standaard. http://www.standaard.be
I am sure they would love to publish your article. Good luck.
@Jane Doe Belge. Le Soir is one of the French speaking newspapers in Belgium. http://www.lesoir.be
Good luck
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Hello, I’m new to this forum and I hope you might be able to help me with citizenship concerns.
I was born out-of-wedlock in 1977 in Switzerland of a Swiss citizen mother and US father. My father never acknowledged paternity since he disappeared a few months before I was born. My mom tried her best to contact him but unfortunately he was not to be found… I am now in touch with him and my family but he still refuses to acknowledge me, although he agrees I am his son and said he was happy that I found him.
Now, my question is: is there any way for me to get US citizenship through possible siblingship DNA testing (2 of my brothers would agree to help me)? I know I’m more likely to get a “no” from you but who knows, someone might have a tip to help me.
Under swiss law, I am not allowed to have his surname on my birth certificate unless I prove that I’m related to him, but I was wondering if – under US law, after DNA testing- I could possibly have his surname made official and therefore turn it as proof to the swiss authorities?
In other words: I’m in need of acknowledgement- can anybody be of help?
Any comment (positive) much appreciated 😉
PHIL
Dear Phil,
Count your blessings. Your dad is happy you found him and agrees you are his son. Find out the all responsibilities of being deemed a US citizen and living in Switzerland and US citizenship-based taxation law. Switzerland is the absolute worst place for a US citizen to live abroad! A high price for you to pay — for what????
Hi there! Thanks for your note. I’m thinking on moving to the US, my country of origins and I’ll have to do it as an immigrant. The reason why I left a message is that I’m looking for answers on how to find a solution to US citizenship and bearing my fathers surname. So if anyone has an idea… Feel free 😉
Phil, not to disparage you, but I don’t think anyone here would be so irresponsible to give anyone advice on how to get that US citizenship you want. You really should contact a US Consulate for their help — the US would likely find a way to get you into their clutches. If any of us could give you or others our unwanted / unneeded serfdom to the US, we would.
@Phil.
Here is a link to the State Department website which includes the information you are seeking. I am not a immigration lawyer but it appears that since you are over 16 years of age you may have lost your right to Automatic US citizenship. But as Calgary411 has noted.not having US citizenship relieves you from being subject to US taxation on your income in Switzerland as well as penalties for not having filed US tax returns for all of these years.
http://www.uscitizenship.info/citizenship-library-children.html
I wonder how the snowbird industry in South Fla is or has been effected by this legislation?
I have a question about u.s. citizenship. lets talk about the Philippines
there are like 50,000 children fathered by G.I.’s and american civil employees stationed u.s. bases in their country. majority are born out of wedlock and most probably are now adults. let say for example the child was born between 1952-November 13,1986 where the law is different. Can this child claim u.s. citizenship through their u.s. citizen fathers?
or let u.s. put another situation lets say the father was not able to legitimize his daughter or son does the child qualified can still pursue his/her claim as a citizen? how if the father was already deceased will DNA from his aunt (his father’s sister) prove blood relations. will she/or he have the chance to claim u.s. citizenship?