If clicking on a link brings you to the wrong page of the comment thread, CLICK HERE to get to its current page.
UPDATE December 23, 2017: Please see the following post for the latest information: http://isaacbrocksociety.ca/2017/12/15/un-human-rights-complaint-quadruples-its-signatures/
UPDATE November 28, 2017:
Also, see MuzzledNoMore’s updated post, United Nations Human Rights Complaint: Seeking Advice and Additional Signatures
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UPDATE November 23, 2017:
UN Complaint Final July 29 2014 – updated links November 23 2017
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UPDATE JANUARY 10, 2017:
From MuzzledNoMore:
Just letting everybody know that we’re still waiting to hear from the UN about the status of our Complaint. With any luck we’ll have the matter taken care of within the next few months by the new Republican administration in Washington. Who knows? Maybe the UN is watching and waiting to see what happens as well. In any regard, the UN has informed us that it can take up to three years for a Complaint to reach the stage at which it will be considered or rejected.
If a “domestic” solution is possible, there will be no need for the UN to address the issue. When we filed the Complaint nearly two and a half years ago we could never have believed that repealing FATCA and switching to residence-based taxation would have made it to the 2016 Republican Party Platform. Now it remains to be seen if the party will follow through with its promises.
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UPDATE MAY 21, 2015:
Today we received official confirmation from the United Nations Human Rights Council that our Complaint has been received and is in the queue pending approval (or not) for admittance into one of the Working Groups. The next session of the Working Group on Communications is scheduled from 17 to 21 August 2015. Further information will be shared with us after that date.
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UPDATE NOVEMBER 6, 2014:
From MuzzledNoMore:
We have finally received confirmation that our Human Rights Complaint against the United States has been received by the United Nations. This is great news! But let’s not pop champagne corks just yet. There is no indication that the Complaint has been read or considered for acceptance into the complaints process in any way. That is all yet to come. But we have made a huge step forward! That deserves a few cheers all round … even without the bubbly!
UPDATE OCTOBER 27, 2014:
Permission has been given a university researcher to access to our UN Human Rights Complaint to analyze ethical assumptions on FATCA. That access will be used for academic purposes, content not to be released (as the UN has not yet acknowledged receipt of this UN Human Rights Complaint).
We view as a significant step that this document will be studied for moral dimensions and ethics. We continue to anticipate the time we will be able to publicly release contents of the Complaint, likely AFTER the next scheduled meeting to review such complaints, sometime in April 2015.
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UPDATE SEPTEMBER 10, 2014:
“JC” commented, and he’s right:
Whenever that text for the human rights complaint comes out that, I believe, will be a big help at raising awareness.
The text of the Human Rights Complaint will be published when we know the UN has received and considered it. There has been no confirmation that our submission was considered for the meeting in August (…our submission was sent just before the August meeting so, just by number of other submissions received before ours, our Human Rights Complaint may not have been considered in the time allotted). It looks like the next UN meeting to consider Human Rights Complaints is scheduled for April of 2015 — that Committee meets twice a year.
In the meantime, our fundraising must be pinned to its stand-alone legal claim and importance which absolutely addresses our human rights issues.
Donate Now: http://adcs-adsc.ca/
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August 7, 2014 UPDATE:
The Human Rights Complaint has been submitted. Thank you to those who worked on the document and made this happen. A very special thank you to all who came forward to put your names on this important document. We had a total of 41 signers, representing the countries of Canada, Germany, Japan, the UK, Australia, New Zealand, Denmark, Estonia, Switzerland and Belgium.
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August 5, 2014 UPDATE:
Note: there is a confidentiality clause in the document that your name / nationality / country be kept confidential. My name and address will be the only one that might not be confidential. I wanted to share with you two notes waiting for me this morning:
Hi Carol,
I am very disappointed that more people did not come forward and sign this document, I do not understand why people are afraid to speak up for what they believe. People are so afraid of the bully acts of the USA, We must stand together, I am asking all people that the US government deem US citizens to step forward and stand up against the US and the Harper government for allowing FATCA into the Canadian banking system.
I am not on facebook or twitter. I give you permission to post this.
Disappointed
XXX
Hi Carol,
I am surprised that so few people have signed. This makes me uneasy. People must be frightened. Do you expect repercussions against the signers? At the moment I don’t have the strength to deal with any more troubles. Would you please put a hold on my name until I can evaluate your assessment of possible repercussions.
Thank you,
YYYY
I answered YYYY:
Absolutely. I can take your name off the list of signers if you are not comfortable with that — you must be OK with your decision. We will probably be sending the Complaint on Thursday, August 7th .
No, we don’t expect any repercussions against any of the signers. We will ask for confidentiality in one of the clauses.
As with everything else of this with this (persons on blogs, getting together for protest, etc.), people are afraid to step forward. The US weapon toward its people always is FEAR. That is what we see here. That is our biggest obstacle and what may defeat us in the end.
Dr. Stephen Kish, Chair of the Alliance for the Defence of Canadian Sovereignty signs his name on behalf of the millions of *US Persons* Abroad who are afraid to sign.
Thanks, YYYY.
FEAR: the most effective tool the USA has at its disposal is at work in all we see regarding US Persons Abroad coming forward in unison to fight the good fight. If anything defeats us, it will be our FEAR.
As you all know, I fear too for my son’s name to be out there as it is my duty as a parent to protect his best interests. Because of my own fear, I went through all the complex back US tax filings through use of professionals in the US compliance industry. That was my choice as I could absolutely not do it myself and I so wanted this behind me, to stop the leak of my hard-earned retirement funds to be passed to the US IRS. I’m still in this game. I replied to a commenter at Isaac Brock yesterday and Stephen Kish picked part of what I said to update the ADCS-ADSC Charter Challenge post yesterday:
UPDATE August 5, 2014 (http://isaacbrocksociety.ca/2014/06/01/its-time/)
Carol, an ADCS-ADSC Board Director, explains why she donated to this lawsuit:
The purpose of the lawsuit, to me, is to stop the obscene injustice of all of this, regain rights waived by the Canadian government’s implementation of the US FATCA IGA, thereby putting the financial institutions before individuals and families who are being criminalized!
I’m in for that just as I’m on this blog, hoping people learn from all of the stupid mistakes I made along the way — I don’t want others to make those same mistakes.
It’s about people getting their lives back, along with their dignity and their mental and physical health and to stop the the handing over to the US a good portion of what they’ve saved for their retirements.
It is about wanting Canada to remain a sovereign country, not taken over by the USA. It’s about what I think is right and not wanting to silently stand by and let this happen. It’s because I believe in free speech and don’t want to be shamed into not speaking out, at this point especially for other families who have a family member with some developmental disability or some other ‘mental incapacity’.
My update for now and my regards to all,
August 2, 2014 UPDATE:
Thank you very much for everyone who has corresponded to me at calgaryfouroneone@gmail.com to request the password and give permission for your signatures to be added. Your supportive emails are wonderful.
He is what we have for signers to the Human Rights Document:
18 – Canada
2 – UK
1 – Australia
1 – Belgium (US/Dutch Citizen)
1 – Denmark
1 – Germany
1 – Japan
1 – Switzerland
Note that one of the Canadian signers is Dr. Stephen Kish (Canadian, US)–signing personally, and on behalf of the “Alliance for the Defence of Canadian Sovereignty” Board of Directors, and the millions of U.S. persons living abroad who are too frightened to sign this document.
Also waiting to hear back from 4 in Canada (one from Quebec) and one from New Zealand.
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July 30, 2014 UPDATE:
Here is the FINAL Human Rights Complaint, available to those that are considering signing. To access the password for this document, contact and request from calgaryfouroneone@gmail.com.
Each person sending a request will receive a copy from calgary411 “in Confidence” with the CLEAR understanding that it is NOT to be published. For anyone who wants to have another person read/sign the document, that other person also needs to obtain it through the Isaac Brock Society or Maple Sandbox channels. Signatures will only be accepted from those who have gotten the document through calgary411. This stipulation is necessary to keep some lid on the proliferation of this information.
We will announce when we know the timing for the agency committee looking at this document for review. We will update on this post any feedback from the agency as it is received.
This document is the collaboration of contributors to both blogs and took over a month to write, discuss and edit in consensus with a group of 15 who have vetted and approved it in its entirety. It stands as presented to them. Bloggers can have their say but there will be no further changes to the document. It is what the agency says that matters.
Sign if you are in agreement and can do so by providing to calgaryfouroneone@gmail.com your name and your nationality and/or country of residence. The Human Rights Complaint will be submitted electronically. Submitters’ names and nationalities will be typed onto the lines provided on page 1. No physical signature is required.
If you are not comfortable with the document, you do not have to sign.
TIME IS OF THE ESSENCE.
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Two dedicated individuals who participate at both the Isaac Brock Society and the Maple Sandbox blogs have prepared a comprehensive Human Rights Complaint that will be submitted on behalf of all *US Persons Abroad* the world over. Others offered suggestions on how that information should best be presented in the constraint of number of pages allowed for the Complaint. We appreciate the legal eye and suggestions for going forward with this Complaint from Professor Allison Christians.
The document now complete, I have been asked to post an announcement on their behalf. Unfortunately, because of their personal situations, they cannot lend their names to the document and this will be the end of Phase I, produced for all of us, with their great care.
I so appreciate the incredible work that has gone into this on behalf of all of us. Here is what they say:
A group of writers from the Isaac Brock Society and Maple Sandbox blogs has prepared a document that challenges citizenship-based taxation (CBT) as a violation of internationally recognized human rights. This document will be submitted as a formal complaint to a major international human rights organization within the next ten days.
Any readers who would like to support this effort by “co-signing” (having their names added to the list of those filing the complaint) should so indicate by sending an email to: calgaryfouroneone@gmail.com.
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The Canadian writers of the complaint hope to make this a truly international effort. Bloggers from all over the world are welcome to lend their names to this historic document. Signers do not have to be US Persons.****************
Signers should feel comfortable with using their own names (pseudonyms are unacceptable in this instance) and should provide their nationality and/or country of residence as well.
@Bubblebustin, yes, very astute observation. The ‘same country exception’ ‘solution’ is now being floated as a remedy to the US extraterritorial confiscatory and administratively expensive treatment of Canadian registered accounts. Perhaps the hypocrisy level reached embarassing crossborder levels since the US touted ABLE its new disability savings plan ( http://www.ablenrc.org/about/history-able-act )? Still FBAR fodder though!
I guess that is what it comes down to, attempts making Extraterritorial CBT more “comfy” to ensure that the outcry doesn’t reach a critical mass. The fact that the AICPA has weighed in, and Canadian CPAs too, means that perhaps in another 10 years or more, the IRS might issue a series of convoluted notices similar to those in the tortured history of the US punitive treatment of the RRSP, the invention of form 8891 to claim an exemption or deferment, the inclusion in the Canada US tax treaty, the disinclusion of the RRSP from the OVDI penalty calculations, and inventions of methods to get them recognized as tax deferred retroactively, (though still FBAR fodder) – only after much outcry, etc. etc. (can’t find the definitive history right now, but this is an ex. https://www.ctf.ca/ctfweb/Documents/PDF/Cdn_Tax_Highlights/2003CTH05.pdf ).
Might be something helpful in this Spiro, Peter J., At Home in Two Countries: The Past and Future of Dual Citizenship (Introduction) (July 11, 2016). At Home in Two Countries: The Past and Future of Dual Citizenship (NYU Press, 2016); Temple University Legal Studies Research Paper No. 2016-38. Available at SSRN: http://ssrn.com/abstract=2807898
Only the intro is available for free via SSRN.
The author is “A former law clerk to Justice David H. Souter of the U.S. Supreme Court, Spiro specializes in international, immigration, and constitutional law.”
Thanks for this link, badger.
Also from Peter J. Spiro: http://www.latimes.com/opinion/op-ed/la-oe-spiro-dual-citizenship-advantages-20141030-story.html
Good quote from Spiro re “With respect to military service and income taxes, states have essentially agreed to make residence, not citizenship, the key criterion. ” .
Perhaps his new book might have useful elaboration on that point, though we already know that the US is an ‘exceptional’ ‘outlier’ – even while telling the EU and the rest of the globe not to do the same ex. “…The Obama administration warned the EU on Wednesday that its investigations into alleged tax avoidance by US firms, including Apple, Amazon and Starbucks, could “create an unfortunate international tax policy precedent”.
In a white paper commissioned by US Treasury secretary Jack Lew, the US warned that Brussels was overstepping its powers and becoming a “supranational tax authority”.
The US warned that if Brussels pushes ahead with threatened plans to demand as much as $19bn (£14.4bn) from Apple for alleged unpaid taxes as a result of so-called sweetheart deals with Ireland the US Treasury will “consider potential responses”….”
https://www.theguardian.com/technology/2016/aug/24/apple-taxes-european-commission
Spiro has at least spoken out against the more egregious aspects of citizenship-based taxation like the exit tax & Ex-PATRIOT Act, and not just recently either (note the date on the first post):
http://opiniojuris.org/2008/07/18/us-erects-a-berlin-tax-wall/
http://opiniojuris.org/2012/05/17/will-congress-move-to-tax-ex-patriots/
OTOH I recall that Tim mentioned him at one point as “pro-FATCA” (I guess they’ve met & spoken in person?)
@Eric, good point that the 2008 post pre-dates FATCA, and perhaps also the beginning of the 2009 OVD crusade against those committing “form crime” and committing ” local ordinary banking while living outside the US”.
Interested to see if the book builds on those opiniojuris articles.
Haven’t seen anything pro-FATCA in a search of Opinio Juris. in fact, he said in reply to feedback – some from readers/authors at IBS;
“Thanks to everyone for the very helpful and interesting comments. One thing that come under closer scrutiny in the wake of FATCA are barriers to renunciation. There’s a tenable argument that such obstacles violate international law, under which there is a protected right to expatriate. This would seem an especially promising argument with respect to Victoria’s accidental Americans.
In any case, it’s useful to hear how this is playing out on the ground.”
http://opiniojuris.org/2012/01/08/fatca-fallout-mass-renunciations/
He does seem to underscore in several posts that the obstacles erected to exercising the right to expatriate might have some legal traction.
I have also experienced Peter Spiro at a annual conference in Brussels, <a href="www.cpdp.be" Computers Privacy DP .
He emerged there as one of the (for an Obama appointee relatively) good guys.
BTW I update Wikipedia pages on the recent EUR /US conflict described in the Guardian article, there dubbed the “Double Irish” .
That case of Apple involves corporate taxation, which should IMO always be seen as distinct from the taxation of individuals. Corporations are not people after all 😉
Sorry about that lost link to
https://en.wikipedia.org/wiki/Double_Irish_arrangement
I was able to download Peter Spiro’s entire paper.
Eric,
Actually Peter Spiro is pretty skeptical of FATCA which is pretty remarkable as he is a card carrying member of the “establishment” and a very liberal democrat. I will try to find a link someplace but has a new paper where he challenges the legality of the FATCA IGA’s despite the fact he is overall favorable to Obama’s expansion of executive power. In fact he goes to say that it would be an “easy” verdict for the conservative members of SCOTUS to through out the FATCA IGA’s.
I think the difference is Spiro is an “international” lawyer not a “tax” lawyer like Michael Kirsch, Reuven Avi-Yonah, or RIchard Harvey. Also I have found that many proponents of strong unitary executive power like Spiro and John Yoo of Berkeley Law do find it necessary to draw some limits to executive power and restricting the President’s ability to say enter into FATCA IGA’s and TIEA without Congressional approval seems like an easy compromise to pure “international” law experts like Spiro and Yoo unlike Kirsch and Harvey who think the really important things are matters of war and peace not tax evasion and international tax law.
*Peter Spiro was harshly critical of Obama’s decision to go to Congress to ask for approval to attack Syria saying Obama “hurt” the presidency by not taking unilateral action.
http://opiniojuris.org/2013/08/31/syria-insta-symposium-obamas-constitutional-surrender/
Tim, Eric,
Peter Spiro said this about FATCA in 2104. I think it very neatly captures much of the insanity of the thing, and to me it looks anything but pro-FATCA:
http://opiniojuris.org/2014/05/12/fatca-need-anti-passport/
“That an anti-passport is even plausible as a thought experiment shows how bad FATCA really is. Americans abroad are renouncing their citizenship in record numbers, and others will feel lucky not to have it in the first place. What a turn from an earlier era, in which US citizenship was a badge of honor and a shield against a brutish world.”
“Human Rights Complaint on behalf of ALL *U.S. Persons Abroad* has now been submitted.”… and presumably ignored by the United Nations. As per usual.
Article that mentions FATCA, privacy concerns, human rights;
Avi-Yonah, Reuven S. and Mazzoni, Gianluca, Taxation and Human Rights: A Delicate Balance (September 5, 2016). Available at SSRN: http://ssrn.com/abstract=2834883 or http://dx.doi.org/10.2139/ssrn.2834883
I wonder how many other persons have considered the irony.
Customs duties were collected by customs officers at border crossings and seaports. Thus the distinction where federal excises on liquor etc. are called Inland Revenue in UK and Internal Revenue in USA, thus the name, Internal Revenue Service.
So a Canadian, born in Canada to a USA-born father, sending money to IRS is providing “Internal” revenue.
Just letting everybody know that we’re still waiting to hear from the UN about the status of our Complaint. With any luck we’ll have the matter taken care of within the next few months by the new Republican administration in Washington. Who knows? Maybe the UN is watching and waiting to see what happens as well. In any regard, the UN has informed us that it can take up to three years for a Complaint to reach the stage at which it will be considered or rejected.
If a “domestic” solution is possible, there will be no need for the UN to address the issue. When we filed the Complaint nearly two and a half years ago we could never have believed that repealing FATCA and switching to residence-based taxation would have made it to the 2016 Republican Party Platform. Now it remains to be seen if the party will follow through with its promises.
Just fell onto a very interesting historic document from 1995 in which the exit tax and taxation of those renouncing was discussed, including criticisms that it might erect a barrier to expatriation which conflicted with the internationally recognized right to choose one’s citizenship, and the US citizenship based taxation is noted as ‘unusual’ in the world, etc. See Taxation of Individuals Who Renounce Their U.S. Citizenship
https://www.finance.senate.gov/…/taxation-of-individuals-who-renounce-their-us-citiz…
4 days ago – Senate Hearing S. HRG. 104-381 TAXATION OF INDIVIDUALS WHO RENOUNCE. THEIR U.S. CITIZENSHIP. HEARING. BEFORE THE. COMMITTEE ON FINANCE. UNITED STATES SENATE. March 21, 1995 https://www.finance.senate.gov/imo/media/doc/23016-cc.pdf
https://www.finance.senate.gov/download/taxation-of-individuals-who-renounce-their-us-citizenship.
Another interesting tidbit or aside is that one of the persons appearing before that Senate Finance Committee in 1995 in support of an exit tax regime and US extraterritorial taxation of those outside the US, appears to be the very same H. David Rosenbloom of Caplin & Drysdale, who was invited/invited himself ? to Canada ( the record says he is appearing “as an individual” ) and who appeared several times before the Canadian government’s Finance Committee re FATCA and US extraterritorial taxation ( https://openparliament.ca/search/?q=h.+david+rosenbloom+fatca https://openparliament.ca/search/?q=Person:+%22H.+David+Rosenbloom%22 ).
You all may have see this before, but so much time has passed that since I can’t even remember whether I’ve read it, I am placing a copy here. Well worth reading…..
And it is one source of the ‘Berlin Wall’ metaphor employed here and other expat forums – when describing the punitive exit tax and expatriation regime the US employs to stop people abroad from renouncing/relinquishing.
@ badger
I haven’t read the entire Senate Finance pdf but I did discover one section where they mentioned how many years of living in the USA would be “appropriate” for greencard holders to be deemed as Property of the USA and liable to the same exit taxation vexation as actual US citizens who leave and renounce. It seemed to come down to how much they estimated the US Treasury would lose if they didn’t include non-US citizens. It’s all dollars and cents to them. And I’m sure they delighted in the thought of extracting pain and pennies from non-US citizens too … maybe even more so than renounced US citizens. That 1995 discussion is quite revealing.
BTW Mr. Langer missed a prime reason for people to leave the USA — marriage to a non-US citizen. That’s hardly a dollars and cents reason which he seems to focus on here:
He goes on to point out something which I totally agree with but we all know this was ultimately ignored …
Mr. Langen’s objection to what the Senate Finance Committee was plotting is summarized here:
Fascinating find, badger. Thanks.
‘Senator Long used to say, “Don’t tax you, don’t tax me, tax the guy behind the tree.” The proposed depature tax certainly meets that criteria, but it fails every other criteria of sound tax policy and, in my opinion, it should be relegated to the garbage can.’
It was. The only countries that do that kind of thing are garbage cans.
Pardon my typos — that 1995 pdf cannot be copied and pasted. My eye-brain-finger connections are often faulty.
I didn’t notice typos and definitely wasn’t complaining about typos. I only insulted garbage cans.
@ Norman Diamond
I spotted it … depature, instead of departure. The original is flawless, not my copy of it however.
Relevant to our complaint to the UN:
As noted by another Brocker on another IBS thread, this and two other new papers by Prof. Christians available now on SSRN – fulltext open source:
https://ssrn.com/abstract=2924925
‘Human Rights at the Borders of Tax Sovereignty’
38 Pages Posted: 28 Feb 2017
Allison Christians
McGill University – Faculty of Law
Date Written: February 27, 2017
Abstract
Tax scholarship typically presumes the state’s power to tax and therefore rarely concerns itself with analyzing which relationships between a government and a potential taxpayer normatively justify taxation, and which do not. This paper presents the case for undertaking such an analysis as a matter of the state’s obligation to observe and protect fundamental human rights. It begins by examining existing frameworks for understanding how a taxpayer population is and ought to be defined. It then analyzes potential harms created by an improperly expansive taxpayer category, and those created by excluding from consideration those beyond the polity even if directly impacted by the tax regime. It concludes that a modified membership principle is a more acceptable framework for normative analysis of the jurisdiction to tax, even while acknowledging the overwhelming weight of existing perceptions about the bounds of the polity and the state-citizen relationship as significant barriers to acceptance.
Keywords: taxation, international relations, jurisdiction, social contract theory, sovereignty, nexus, international tax, political philosophy
JEL Classification: H11, H21, H87, F02, F50, F53, F59, Z13, E63, H2, K33, K34, N40, P45
Suggested Citation:
Christians, Allison, Human Rights at the Borders of Tax Sovereignty (February 27, 2017). Available at SSRN: https://ssrn.com/abstract=2924925
See also;
https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=348301
Thanks, badger.
And, thanks to Allison Christians for these new papers. I have advised of error in footnote 82 of https://ssrn.com/abstract=2924925, ‘Human Rights at the Borders of Tax Sovereignty’ (my son was born in Canada to two, at the time of my son’s birth, US citizen parents who became Canadian citizens the following year — he was not born in the US, never lived in the US and never had any benefit from the US).
As always, I am grateful for this most recent work of Professor Christians, as all the previous.
Putting a copy of this for FYI:
Apologies if this has already been posted, I found the link and description at the American Expatriates facebook site, posted by Keith Redmond https://www.facebook.com/groups/AmericanExpatriates/permalink/754026314763443/:
Petition No 1088/2016 by Mr J.R. (French) on the US’ Foreign Account Tax Compliance Act’s (FATCA) alleged infringement of EU rights and the extraterritorial effects of US laws in the EU
Petition treated as confidential 145 Supporters – Status: Available to supporters
Petition data
Summary title: Petition No 1088/2016 by Mr J.R. (French) on the US’ Foreign Account Tax Compliance Act’s (FATCA) alleged infringement of EU rights and the extraterritorial effects of US laws in the EU
Petition number: 1088/2016
Topics: Taxation
Country: European Union
Name of association: Collective of European citizens who are either “accidental Americans” or dual European / US citizens
Petitioner data
Name: J. R.
https://petiport.secure.europarl.europa.eu/petitions/en/petition/content/1088%252F2016/html/Petition%2Bre.%2B%2528i%2529%2Bthe%2Binfringement%2Bof%2BEU%2Brights%2Bfrom%2BFATCA%2Band%2B%2528ii%2529%2Bthe%2Bextraterritorial%2Beffect%2Bof%2BUS%2Blaws%2Binside%2Bthe%2BEU
“I wouldn’t think that they can impose US citizenship on her.”
I wouldn’t either, but rational minds cannot comprehend psychotic logic.
Above relates to:
http://isaacbrocksociety.ca/2017/03/14/u-s-consulate-in-netherlands-ignorant-of-9-fam-202-1-2-regarding-visa-issuance-to-person-with-possible-claim-to-u-s-citizenship/