cross posted from Citizenship Solutions.
The $2350 “relinquishment fee” does NOT mean that people should simply renounce citizenship http://t.co/nKanxobfhQ
— Citizenship Lawyer (@ExpatriationLaw) September 7, 2015
On September 6, 2015 it was reported on the Isaac Brock Society that the State Department intended to begin charging $2350 for both “relinquishments” and “renunciations”. The proposed rule is to be published on September 8, 2015. With respect to “relinquishments” the Federal Register states:
The Department is expanding the application of and renaming item 8 in the Schedule of Fees to “Administrative Processing of Request for Certificate of Loss of Nationality.” The fee will be applied to cover not only services to U.S. nationals (i.e., U.S. citizens and non-citizen nationals) who relinquish nationality by taking the oath of renunciation under 8 U.S.C. 1481(a)(5), but also to cover services to U.S. nationals who relinquish nationality under 8 U.S.C. 1481(a)(1) to 1481(a)(4) or any earlier-in-time relinquishment statutes administered by the Department of State and request a Certificate of Loss of Nationality. Currently, the fee is paid by those taking the oath of renunciation under 8 U.S.C. 1481(a)(5) at the time the oath is sworn. The fee would be collected from an individual claiming to have relinquished nationality at the time that person requests the Certificate of Loss of Nationality (that is, after completing Form DS-4079 and signing before a consular officer Part II of Form DS-4079 entitled “Statement of Voluntary Relinquishment of U.S. Citizenship”). The Fiscal Year 2012 Cost of Service Model update demonstrated that documenting a U.S. national’s relinquishment of nationality is extremely costly whether the service is for a relinquishment under 8 U.S.C. 1481(a)(1) to 1481(a)(4) or a relinquishment by renunciation under 8 U.S.C. 1481(a)(5). Both require American consular officers overseas to spend substantial amounts of time to accept, process, and adjudicate cases. The cost of the service is not limited to the time consular officers spend with individuals prior to and at appointments. The application is reviewed both overseas and domestically to ensure full compliance with the law. The consular officer must determine that the individual is indeed a U.S. national, advise the individual on the consequences of loss of nationality, and ensure that the individual fully understands the consequences of loss, including the inability to reside in the United States unless properly documented as an alien. Through documentary review, consideration of the individual’s circumstances, and careful interviewing, the consular officer also must determine whether the individual is seeking loss of nationality voluntarily and with the requisite intent, as required by U.S. Supreme Court case law and by statute (8 U.S.C. 1481). This determination can be especially demanding in the case of minors or individuals with a developmental disability or mental illness.
The consular officer must also ensure that the commission of an expatriating act was as prescribed by statute, which is often an issue in non-renunciation relinquishment cases. The loss of nationality service must be documented on several forms and in consular systems as well as in a memorandum from the consular officer to the Department’s Directorate of Overseas Citizens Services in Washington, DC (“OCS”), in the Bureau of Consular Affairs. All forms and memoranda are closely reviewed in OCS by a country officer and a senior approving officer, and may include consultation with legal advisers. This review entails close examination of whether the requirements of voluntariness and intent are satisfied in the individual case. Some applications require multiple rounds of correspondence between post and the Department. The final approval of the loss of nationality must be done by law within the Department (8 U.S.C. 1501), by OCS, after which the case is returned to the consular officer overseas for final delivery of the Certificate of Loss of Nationality to the individual. In addition, every individual issued a Certificate of Loss of Nationality is advised of the possibility of seeking a future Administrative Review of the loss of nationality, a time-consuming process that is conducted by OCS’s Office of Legal Affairs.
Currently, nationals who renounce nationality pay a fee of $2,350, while nationals who apply for documentation of relinquishment of nationality by the voluntary commission of an expatriating act with the intention to lose nationality, do not pay a fee. However the services performed in both situations are similar, requiring close and detailed case-by-case review of the factors involved in a request for a Certificate of Loss of Nationality, and both result in similar costs to the Department.
In the past, individuals seldom requested Certificates of Loss of Nationality from the Department to document relinquishment. Although the Department was aware that an individual relinquishment service was among the most time consuming of consular services, it was rarely performed so the overall cost to the Department was low and the Department did not establish a fee. Requests for a Certificate of Loss of Nationality on the basis of a non-renunciatory relinquishment have increased significantly in recent years, and the Department expects the number to grow in the future, causing the total cost of this service to increase. At the same time, the Department funds consular services completely from user fees. The Cost of Service Model continues to demonstrate that such costs are incurred by the Department when accepting, processing, and adjudicating relinquishment of nationality cases; therefore, the Department will collect a fee from all individuals seeking a Certificate of Loss of Nationality. Taking into account the costs of both renunciation and non-renunciation relinquishment processes, the fee will be $2,350.
The effective date will be November 9, 2015,. I have been aware of this impending fee increase for some time. Hence, it comes as no surprise. Furthermore, if you accept the validity of the $2350 fee for renunciations then a similar fee for “relinquishments” is justifiable.
There has been and continues to be extensive discussion of this increase. What does it mean? Why now? Is this to discourage “relinquishments”? What does this say about the character of the U.S. Government? At a bare minimum, the fee increase is a continuation of a pattern of abuse of Americans abroad. That said …
The purpose of this post is to comment on a question asked by, USXCanada, who is a long time (I believe) blogger at the Isaac Brock Canada. He or she includes an interesting question in this comment:
The best thing about the utterly predictable extension of the $2350 fee to relinquishers?
Not having to endure any more speculations about the convoluted retroactive possibilities for exhuming prehistoric personal intentions to lose U.S. citizenship – especially by extraterritorials who did any such thing as (1) hold a U.S. passport (2) vote in a U.S. election (3) file any U.S. taxes (4) work a week as a temp janitor for a non-U.S. municipality.
How about a Brock contest to see who can do closest guess on (1) when the current fee next increases? (2) how much it goes up by? Here’s mine: September 2016 to a round $3000. Further out? At least $6000 by September 2020.
Off-the-top-of-the-head question: Is there now any circumstance at all where an exiter will prefer to seek relinquishment because the morass of rules confers some benefit that would be lost through renunciation? (PS – Staying off the name-and-shame list is NOT one.)
The answer is yes! The “relinquishment fee” is an irritation but it is NOT a reason to simply default into a “renunciation”. Now, I am writing this post quickly and I invite others to add their thoughts. But, here are categories of reasons why those who believe that they have validly relinquished U.S. citizenship, under U.S. law, should insist on a CLN based on a relinquishment.
Category 1 – For at least “citizenship purposes” the relinquishment date is always prior to the renunciation date.
Category 2 – The difference in treatment under other U.S. laws between “renunciations” and other forms of relinquishment.
Let’s examine each category.
Category 1 – For at least “citizenship purposes” the relinquishment date is always prior to the renunciation date.
Before, listing reasons I remind you of the difference between a “relinquishment” and a “renunciation”. (There is only “relinquishment” and “renunciation” is just one form of “relinquishment”. The difference is in the timing.) I urge you to read a previous post that describes “relinquishments” and notes “renunciation is one form of relinquishment”. The “take away” from that post is that it’s the time of the relinquishment that is the key and NOT the form of the relinquishment. To be specific:
The issue is NOT the form of relinquishment. The issue is the date of relinquishment.
Why would the “date of the relinquishment” matter? Well there are at least two reasons.
Transmission of U.S. citizenship – Imagine one can successfully argue for a “relinquishment date” prior to your children being born. This would mean that (if you are not a U.S. citizen) that you could NOT transmit U.S. citizenship to your children.
The tax issue – do the “Exit Tax and S. 877A Rules apply to you?” I commented on this issue in the other post as follows:
Since 2004, the U.S. Internal Revenue Code has contained provisions (2004 American Jobs Creation Act and 2008 HEART Act) which mandate that those who:
1. Relinquish U.S. citizenship under the Immigration and Nationality Act;
2. Continue to be treated as U.S. citizens for tax purposes until they notify the U.S. government.
The effective date of the creation of what I will call “The Tax Citizen” was June 3, 2004.
This means that since June 3, 2004 those who relinquished (including by renunciation) their citizenship under the Immigration and Nationality Act continue to be taxed as U.S. citizens until they notify the U.S. government in a prescribed way. To put it simply, there are tax and form consequences to relinquishing U.S. citizenship after June 3, 2004.
The “Tax Citizen” didn’t exist prior to June 3, 2004. Therefore, those who relinquished U.S. citizenship prior to June 3, 2004 may have no further tax obligations to the IRS.
This means that, in terms of tax consequences:
There may be (and likely is) a difference between a “present day renunciation” and a relinquishment that took place prior to June 3, 2004. The difference is NOT in the kind of relinquishment, but in the date of the relinquishment.
As U.S. tax lawyer Michael Miller suggests:
For persons whose CLN shows a loss of citizenship date that is on or before June 3, 2004, section 877A should not apply. Even if the CLN is received today. I’ve discussed this with people at the IRS and they’ve informally stated that they agree.
In conclusion …
There is NO difference between “relinquishment” and “renunciation” (renunciation is just one form of relinquishment). For tax purposes, there is likely a difference between a “relinquishment” prior to June 3, 2004 and a “relinquishment” (including a “renunciation” after June 3, 2004. When it comes to U.S. tax obligations:
The difference is in the date of the relinquishment. The difference is NOT in the form of relinquishment.
Is a CLN (“Certificate of Loss of Nationality”) a necessary condition for NOT being treated as a “U.S. tax citizen”? Probably not, but this issue has been the topic of much discussion. For those who are truly interested in this, I invite you to read my recent post:
Taxability Freedom Day: On what day does a “U.S. person” cease to be a “U.S. taxpayer”?
Category 2 – The difference in treatment under other U.S. laws between “renunciations” and other forms of relinquishment under other U.S. laws. Here are “some examples”:
S. 1182 of the Immigration and Nationality Act descries categories of “excludable aliens”. The list includes:
(E) Former citizens who renounced citizenship to avoid taxation
Any alien who is a former citizen of the United States who officially renounces United States citizenship and who is determined by the Attorney General to have renounced United States citizenship for the purpose of avoiding taxation by the United States is inadmissible.
This is commonly referred to as the Reed Amendment. It has never been enforced. It is hard to see how it could be enforced. The statute in its plain language imposes a number of hurdles on the U.S. government. See the following interview between Virgina La Torre Jeker and Bill Yates.
Do you want to be on an FBI list? In a fascinating post at the Isaac Brock Society, Eric reports that:
The FBI has released the latest monthly report on the number of records in NICS, the National Instant Criminal Background Check System. Alongside hundreds of thousands of records of convicted criminals and the mentally ill, NICS now contains 21,308 records of people who have formally renounced U.S. citizenship, up from 20,830 last month.
As discussed in our earlier post about NICS, this number includes only emigrants who lost U.S. citizenship under INA § 349(a)(5) or (6) by swearing an oath of renunciation — meaning they had lived abroad for many years and were now naturalising in a country whose laws require applicants for naturalisation to renounce all other citizenships prior to being granted a certificate of naturalisation (such as Denmark or Hong Kong), or they were choosing to give up U.S. citizenship after a long period of being dual citizens — which they might choose to do immediately after moving out of the U.S., or decades after their emigration.
NICS does not include records of people who relinquished U.S. citizenship, which normally occurs when emigrants naturalise or enter government service in a country which does permit dual citizenship, but nevertheless choose to have this treated as an “expatriating act” by the U.S. State Department. Based on 1994–1995 State Department data and the Isaac Brock Society’s own collected reports of readers giving up U.S. citizenship, the ratio of renunciants to relinquishers seems to be between five-to-four and six-to-four. That would suggest that roughly eight or nine hundred people gave up U.S. citizenship in one way or another last month.
Chuck Schumer’s Expatriot Act – Do you remember this piece of vindictiveness? Assuming this description from Wikipedia is correct, the Expatriot Act was:
A bill to amend the Internal Revenue Code of 1986 to provide that persons renouncing citizenship for a substantial tax avoidance purpose shall be subject to tax and withholding on capital gains, to provide that such persons shall not be admissible to the United States, and for other purposes.
In fact, the Expatriot Act would apply to all covered expatriates.
Who knows? Maybe at some point (I doubt it) the United States of America will go “Full Schumer”.
Conclusion …
This issue is of concern ONLY if you wish to have a CLN. If you believe that you have “relinquished U.S. citizenship” prior to June 3, 2004, I would think twice before applying for a CLN. (Note that the FATCA IGA does allow for a “self-certification” of non-U.S. citizenship.) Under the Immigration and Nationality Act, relinquishment of U.S. citizenship is NOT and has NEVER been dependent on having a CLN.
That said, if you:
A. Believe that you have “relinquished U.S. citizenship” prior to June 3, 2004; and
B. Feel that you must have a CLN
you should still ask for a CLN that reflects the date of actual relinquishment of citizenship under the Immigration and Nationality Act!
John Richardson
@george,
I haven’t heard anybody saying that.
The CLN is needed for checking out of the US tax system (for post-2004 relinquishments). If one relinquishes tomorrow without getting a CLN, then one will remain a “US person” for US tax purposes. If that is of no importance to you, then no, the CLN is not needed.
@George & Foo, Also the 11th circuit court of appeals and the DC Trial court have both said in previous rulings that No DOS finding = No loss of citizenship.
http://law.justia.com/cases/federal/appellate-courts/F3/20/424/523295/
http://www.uniset.ca/naty/maternity/2FSupp2d43.htm
@t
The two cited examples are based on renouncing not relinquishing
The joint committee on taxation has published its findings that a cln is not a requirement to lose citizenship which is also supported by us policy on drone missions
@foo
There are many former pats who wanting yo live their lives simply need to be able to answer no to the citizenship question. They are not otherwise concerned with foreign law.
Where I reside the sole question is uzuaaly are you a us. Citizen
Once you get beyond that you are able to live again
Some people now because of fees may chose to self document relinquishment and self file in theforeign tax system. That would remove the banking issue being able go say you are not a us. Itizen
@mjh Consider asking the citizenship judge to witness an affidavit which states by swearing your allegiance to the Queen of Canada, your intent is to also renounce/relinquish your U.S. Citizenship. Put this in a file that you can produce if needed.
“How about a Brock contest to see who can do closest guess on (1) when the current fee next increases? (2) how much it goes up by? Here’s mine: September 2016 to a round $3000. Further out? At least $6000 by September 2020.”
Further relinquishment/ renunciation fee increases will be music to the ear of US citizens in non-dual citizenship countries such as Germany, Austria, the Netherlands and Norway which also have hardship exemptions for naturalization. The hardship exemption should allow many US citizens to obtain German, Austrian, Dutch and Norwegian citizenship without giving up their US citizenship.
As an example, the median monthly gross salary in East Germany was Eur 2,050 and Eur 2,805 in West Germany. If and when the expatriation fee goes to $3,000, more than half of US citizens in Germany should be able to claim the hardship exemption, assuming that US citizens there earn similar wages to Germans.(Figures from 2009 in Spiegel article):
http://www.spiegel.de/wirtschaft/soziales/billiglohnsektor-hungerlohn-trotz-vollzeitjob-a-729972.html
@george..
If you read the text closely in Heuer–it says.
Until a CLN is approved and issued, ANY act of expatriation, whether or not intentional, is simply an act without significance to nationality or status. We emphasize that until such an approval and issuance by the Department of State occurs, the United States national is recognized as such, regardless of what act of expatriation is involved, even if he wishes to disavow American nationality.
The DC court also said
“Section 349 makes clear that expatriation depends not only on the performance of an expatriating act, but also upon a finding that the individual performed such act “voluntarily” and “with the intention of relinquishing United States nationality.” Id.; see also Afroyim v. Rusk, 387 U.S. 253, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967); Vance v. Terrazas, 444 U.S. 252, 100 S.Ct. 540, 62 L.Ed.2d 461 (1980).
Neither specifically say it has to be renunciation.
@T,
Thanks for finding that.
Sigh.
Try to open a bank account in Europe with a US place of birth and without a CLN. I just witnessed a dual citizen trying to do it the other day. The lady’s jaw hit the floor when the bank started interrogating her about being a US person for tax purposes and handing her all kinds of extra forms to fill in. She stormed out of the bank, or more like staggered out of the bank, with her head spinning. Needless to say, she didn’t open an account.
I am trying to reconcile what John Richardson said in the lead post for this thread:
“Under the Immigration and Nationality Act, relinquishment of U.S. citizenship is NOT and has NEVER been dependent on having a CLN.”
with what @T cites above from Heuer:
“Until a CLN is approved and issued, ANY act of expatriation, whether or not intentional, is simply an act without significance to nationality or status. We emphasize that until such an approval and issuance by the Department of State occurs, the United States national is recognized as such, regardless of what act of expatriation is involved, even if he wishes to disavow American nationality.”
We urgently need clarification of whether the US can hold ex-citizens financially hostage until they pay to obtain a CLN.
T: Thank you for those very valuable quotes from two U.S. court cases. It is interesting, and discouraging, to read these findings because the Immigration and Nationality Act simply lists the receipt of a CLN as just one in a list of distinct and separate ways in which one can lose U.S. citizenship. The courts seem to have disagreed with that.
@AnonAnon & Muzzled. For INS purposes (and tax before 6/4/2004), the date is in the act. But it seems to me, the courts are saying for the government to actually recognize those dates for any practical purpose, a CLN is required.
@T
With respect to your comment to George:
The DC court also said
Neither specifically says it has to be renunciation.
Which is based on the following two cases that you cite in this comment:
http://law.justia.com/cases/federal/appellate-courts/F3/20/424/523295/
http://www.uniset.ca/naty/maternity/2FSupp2d43.htm
The cases do NOT mean that one a CLN is a necessary condition to lose U.S. citizenship. Two points:
1. In 2003 the Senate Finance Committee made it clear that the whole reason for amending 2004 American Jobs Creation Act (where the “Tax Citizen” was created) was because it was possible to lose U.S. citizenship without a CLN.
2. If you read the Huer case carefully, you will see that that the part you cite:
is neither relevant nor necessary to the only real point of the decision which was that Department of State decisions surrounding the issuance of a CLN (or not) are administrative acts.
One important thing to note for all those now rushing to relinquish citizenship before the price goes up… did you relinquish before (I believe it’s) 1995? It would be highly unlikely that a claim for relinquishing would succeed if it’s after that date as the laws changed. You need to search the Isaac Brock Society Archives regarding the rules for relinquishing. I think that it was BC Doc that tried for a relinquishment after taking citizenship I believe in 2004 and it was denied. Also, Petro has written a number of articles on this and is very informed and Nobel Dreamer, too.
@ Ann#1,
Not sure if I understood your comment, but re this, for a relinquishment claim to succeed and result in a CLN, it’s okay if a person’s relinquishing act is pre- or post- 1995.
The tax law changes in 1995 and 2004 have no impact on whether or not a relinquishment actually occurred and if a CLN can be issued. These laws only impact on the tax consequences. The law which sets out the criteria for a relinquishment to occur (Immigration and Nationality Act), s. 349(a) remained unchanged by these tax laws.
Many Brockers have received relinquishment-based CLNs – some of them performed their relinquishing acts prior to 1995, some after. Their stories and statistics are in Consulate Report Directory.
The consulate disputed BC Doc’s claim due an action he performed after the relinquishing act, that they felt was an indicator of US citizenship, an issue which has arisen in both pre- and post-1995 claims.
http://isaacbrocksociety.ca/consulate2/comment-page-26/#comment-1769004
@pacifica777… No, it’s ok. You did understand me correctly. I have been told that the State Department reviews each relinquishment case by case. Also, that those relinquishing after a certain date are having a harder time proving it was their intent to relinquish and they are being told by the consulate that while they will send the paper work to the State Department, the Consulate does not feel they did relinquish.
@ Ann#1,
That’s a new one to me. Problems, yes, lots, but haven’t heard of running into that one or seen evidence of it. Can you be more specific? Like where did this occur? And was the year the sole factor resulting in rejection? If a consulate is rejecting applications *solely* because the relinquishing act was performed after 1995, it sounds like some consulate is winging it – not the first time that happened.
If the consulate is creating law – that is if the *sole* reason for the negative recommendation is that the relinquishment was after 1995 – DC will almost undoubtedly override the neg rec and the person will get the CLN. So far, in the cases reported here, when the *only* thing in dispute was a point of non-existent law, State Dept in Washington overrode the negative recommendations.
Also if non-existent law is the sole reason for a consulate claiming there was no relinquishment, a person can contact DoS ACS Legal Affairs in DC and they can set the consulate straight. DC has been pretty good on cut-and-dried stuff like that. (Anything open to interpretation is another kettle of fish, but they’ve been good on the cut-and-dried problems.)
@pacifica777…I was told by this person that they felt consulate was difficult to deal with to the point of rudeness and the Consulate in the initial contact kept referring to their appointment to relinquish as renouncing. They corrected the Consulate that it was a relinquishment. I don’t know that they have been rejected. I believe they are still waiting.
Anyone have time to find out about this proposal mentioned in a Tax360 email (I had a trial subscription, but it expired).?
“IRS Tackles Rules On Gifts, Bequests From Expatriates
The Internal Revenue Service on Wednesday proposed rules on a tax imposed by a 2008 law on gifts or bequests to U.S. citizens and residents made by individuals who relinquish their American citizenship.”
@Publius:
Journal of Accountancy has an article on this topic:
http://www.journalofaccountancy.com/news/2015/sep/taxation-of-gifts-from-expatriates-201512991.html
@Publius/@Innocente
How much do you think they collect in taxes on estates in Canada from a relinquished/renounced US Citizen who passes his/her estate to their child who is an unfortunate US Citizen because of their parent even though said child was born in Canada?
________
Hmm, just learned something else on this incredible journey. A potential beneficiary of an Estate of a former US Person should renounce/relinquish their US Citizenship prior to receiving an estate.
@Brockers….because Uncle Sam has now gone insane……..
Lets face it the $2,350 is a clear violation of the Expatriation Act 1868 that DOS does give lip service too.
At this point…..me thinks we need to start a campaign with the politicians, homelanders and State Department officials to raise the fee even higher…..far higher…….
In this regards the USA needs to be shown to the world as a laughing stock.
I say $10,000 is the fee that should charged for a CLN!!!
George: it’s about supply and demand. If they raise it too much, demand will decrease, people will just not be able to afford it (which is apparently already the case for many). Then again, maybe that is what they want. After all, at $10000 you start to figure that you can pay for a few years of tax compliance, it may not be worthwhile to renounce, in purely financial terms.
Someone whose Canadian child is about to marry a US person said, “I want her to renounce her US citizenship while she still •can•.” He believes the US will disallow renunciation: once a citizen, you cannot get out of it.
Do you think this is a possibility? Can a nation deny renunciation to all its citizens?
It seemed to me an Orwellian scenario but then I never thought all this other business would happen, either.
George, Publius, Innocente, Anyone,
…and if they cannot renounce / relinquish their US-deemed US citizenship prior to receiving part of an inheritance left by a renounced / relinquished US citizen, even if *covered expatriates* (which I am not — although I do appear on the Federal Register *Name and Shame list* / honour roll!)?
No matter what the net worth of the renounced / relinquished US citizen leaving such an inheritance, it STILL seems (to me) not right that a person unable to renounce because of a mental incapacity is ENTRAPPED into a US-deemed US citizenship neither they nor their parent, guardian or trustee on their behalf can get rid of.