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
@Duchese, “Can a nation deny renunciation to all its citizens?”
The Expatriation 1868 which is still cited by the US Government in theory prevents what you just said.
That said, any reasonable person would see that the numerous obstacles placed in front of expatriation and the new fee structure which represents over two months labour at the US Minimum Wage is a violation of the Expatriation Act of 1868.
But then again, a plain reading of the Expatriation Act of 1868 would allow at a MINIMUM for a parent/guardian to get a person out of US Citizenship as not being in their best interest!! It is so clear that Calgary on behalf of her son should be able to renounce on his behalf and if they feel necessary allow him the right to regain the citizenship at a later date if its in his best interest.
All that aside….I have postulated that there is a mindset which views anyone renouncing/relinquishing as not being of a sound mind which would be a reason to decide against the granting of a CLN.
This all gets back to USA..USA..USA..Number One..Number One…Number One…..
We are dealing with the Exceptional States of America and thats the problem in all seriousness.
I have had to come to the realization that I relinquished, I have plenty of documents to get on with my life, that I am happy having left the USA forever, that at some point I may be barred from re-entry which will mean myself not seeing some friends over there or some distant relatives who I do not see anyway.
“I refuse to allow my life to be subject to the whims of a foreign government” is a screensaver quote from IBS. I take great solace in it.
@Duchese, there are a few countries that will not allow you to shed clinging nationality. Just like there are a few countries (TWO/2) that practice extraterritorial taxation.
We all need to start using the term Clinging Nationality and avoid Dual Citizen.
You can not shed Iranian Citizenship, how many Canadian Citizens do you think refer to themselves as Dual Iranian Citizens?
Clinging nationality. Suits my US citizenship problem to a T, as it clings like stink on shit.
@George: That would be good company for the US to keep, by not allowing us to renounce.
Funny though, I actually have entertained the idea (ever since Bill C-24 passed, adding two more years to my wait for Canadian citizenship) that I should approach either Iran, Russia or Venezuela to see if they would grant citizenship to a Canadian PR in order to allow them to renounce their US citizenship post-haste. I hate having to wait until late 2017 now to even apply for Canadian citizenship, especially when I should have been able to apply right >now< if it weren't for C-24.
That would be such an appropriate "eff-you" to the United States to tell them that I'd rather be a citizen of one of their alleged "enemies" than be subjected to being trapped as a head of American Cattle one day longer than I have to.
@Arjan: the decline in the number of US citizens in Switzerland is at least partly attributable to US citizens taking EU or other citizenship instead of Swiss citizenship, based on a review of citizenship statistics in Switzerland. It is expected that many or most of these Americans then gave up their US citizenship, although this cannot be directly seen in the available statistics.
@mjh49783, some words of solace. Take everything one small step at a time.
Step one, get sworn in as a Canadian.
Step two, have the Judge or whomever witness a statement that you voluntarily and intentionally relinquished.
Step three, take a deep breath and pause……you have relinquished in accordance with 8 US Code and are no longer a US Citizen. You can now answer NO to that question honestly.
Step four, decide your next step and if/when you want that stinkin piece of paper.
@mjh49783, today the US Government IS your government. “Tomorrow” the US Government is a FOREIGN government.
Write the following down;
“I will not live my life according to the whims of a foreign government.”
@george Absolutely dead on.
@Under Radar, it takes awhile to get to that point. Seriously I think there is a great overlap between breaking up with a significant other. The psychology is ever so close……..
A decade ago I “broke up” with Uncle Sam and had a nice clean break. Shed a few tears in the process but was done.
But then my “ex” suddenly came back into my life…unsolicited…….
This forced having to break up again, which I have now done.
My “ex” will never come back into my life again.
“IRS Tackles Rules On Gifts, Bequests From Expatriates”
“Journal of Accountancy has an article on this topic:
http://www.journalofaccountancy.com/news/2015/sep/taxation-of-gifts-from-expatriates-201512991.html”
So it’s only for gifts from covered expatriates. Too bad. I wanted to give a gift to Obama, but it wouldn’t count.
Is there a covered expatriate on this board? I’ll mail a US$1 bill to you (my gift to you) and you mail it to Obama (your gift to Obama).
But wait, the tax is imposed by a 2008 law. We need to give gifts to Bush Jr.
Are there 100 covered expatriates? Maybe we can see Bush and Obama penalized for failing to file 100 reports of the gifts they receive.
‘Someone whose Canadian child is about to marry a US person said, “I want her to renounce her US citizenship while she still •can•.”’
Yikes. Yes that’s absolutely necessary, but then what will happen? While the former US person is stateless, until they qualify for Canadian citizenship, will they be allowed to remain as a landed immigrant without a passport?
‘Federal Register *Name and Shame list*’
You misspelled “honour roll.”
“I will not live my life according to the whims of a foreign government.”
I will remember that.
@mjh George has lots of wisdom and solid advice. Try not to fixate on that CLN. In Canada, you can take your Cnd citizenship then just blend in. Place of birth for me? Montreal if you ask, then I’ll use some proper joual to tell you what I think of you for asking. I can blend. Paying $2350 US for the CLN is playing by their rules– it’s letting them own you. I refuse to hand over my hard earned cash for something that’s a human right (right to expatriate).
@mjh….FATCA gave me anxiety, the anxiety raised my blood pressure, the anxiety and blood pressure gave me a drink problem. My personal physician just did not “understand” and actually suggested a long multi month holiday in……………..the USA.
I am not a USC having relinquished according to the US Code and I live in a country that adheres to the master nationality rule. I do not have a CLN all these years later and do not want anything to do with the US government again as it would be bad for my health.
My anxiety, elevated blood pressure and drinking (I no longer drink) all went back to a very healthy state once I fully embraced “China is a foreign government to me, Uganda is a foreign government to me, the USA is another foreign government to me.” I am now getting BP readings of 115/70 with no medication. I have always exercised everyday and that regime never changed, the only change was my state of mind……of which IBS and good people like BC-Doc helped greatly.
In my “prior life” because of my occupation I was warned by the USA and actually forbidden to travel to a certain Warsaw Pact country as said country considered me one of their own. That lesson equipped me for this.
I live in a country where I blend in almost perfectly, only slightly out of phase. FATCA has affected me in that I have to be aware in that I will not open an account where the questioning is too hyper and ultra vires.
If at some point I can no longer spend dollars on holiday in the USA it is their loss and not mine.
I have stayed in the battle for my young children who will need to take out a loan to renounce or relinquish.
@Calgary411
I agree that the whole thing about disabled U.S. persons abroad is ludicrous.
@Norman Diamond
That strategy could get expensive. Presidents don’t need to declare small gifts. However, if a covered expatriate had a favourite current IRS employee, a gift from their country worth just over $20.00 at the time of purchase would generate a very high level of form-filing if accepted, since federal employees need to declare gifts over $20.00.
“Presidents don’t need to declare small gifts.”
That’s irrelevant; that’s gifts from non-US persons to US government employees.
Gifts from covered expatriates to US citizens have to be declared under the law being discussed here. If Obama as a US citizen (and Bush, regardless of no longer being president, as a US citizen) neglect to declare gifts they receive from covered expatriates, they need to be penalized. If one hundred covered expatriates each give $1 to Obama and $1 to Bush, penalties should become expensive for Obama and Bush.
The boundaries of the United States are the boundaries of the United States.
Here is the same subject at “AccountingToday”: IRS Proposes Rules on Gifts and Inheritances from Expats
http://www.borderlessblog.com/look-out-the-irs-is-proposing-a-new-tax-on-expatriots/ says:
Looks like another brick in the Virtual Berlin Wall is going up. Gah, I hate to think how bad things will be in 2017-18 when I finally get a chance to renounce.
Calgary: Will it never end? Thanks for alerting us to this additional tax upon a tax (i.e. abuse upon abuse).
@Norman Diamond: The US person about to marry is also a Canadian citizen, thank goodness!
As a young adult without assets she’s not feeling the urgency and disgust those of us older ones live with. But her headache is beginning to form and will only grow worse. Fortunately her children will not be US persons because she has not fulfilled the residency requirements.
And more on the subject of *gifts and inheritances to expats*: Kevyn Nighingale, MNP LLP “Canada: Were You An American? Thinking Of Making A Gift To An American? Think Again”
@Calgary411
Yet still, ignorance of the law is no excuse! It’s pretty clear that the U.S. tax code has become impossible to administer and is there just to fleece the unwary. The IRS by its own admission recognizes this as although it won’t forgive taxes owed, it will in many circumstances recognize that the taxpayer was unaware of the existence of the tax. This to me marks how corrupt the system really is – where the the number of laws exceed the taxpayer’s capability of understanding them without the use of a tax professional.
As for this nasty bit of legislation, that “born in USA” tattoo might actually serve a practical purpose for us, especially if it’s placed squarely on our foreheads.