30 thoughts on “Liberal Party Position on U.S. Foreign Account Tax Compliance Act (FATCA)”
This response confirms that the Liberals have NO understanding of FATCA, CBT or any of these kinds of things. The most that one can infer is that the writer understands that FATCA is a negative thing for a certain group of Canadians.
Since they are the party in power we need to “educate them fast”.
We’ll see what happens now that the shoe’s on the other foot.
Globally, liberals tend to favor FATCA over human rights.
The Conservative political double talk we’ve faced in Canada and the Liberals buy into it?
We were pleased to learn these registered plans have since been exempted from reporting by the banks but continue to worry that the IRS may view them as taxable when dual citizens file their returns.
Do they need copies of my US tax returns on which I paid the US IRS US$3,661 for the bonds and grants the Canadian government (read: Canadian taxpayer) contributed to the RDSP (Registered Education Savings Plan) for which I am the HOLDER on behalf of my son (who is the beneficiary in payments starting when he is 62). Is that not theft from Canada and its taxpayers? The RDSP is a Canadian registered savings plan (*foreign trust to the US) and *as exempted as* the RESP and the TFSA. When will any Canadian government work to obtain my refund from the IRS?
I grudgingly forgive the substantial money I had to pay US tax lawyers, US tax accountants and US immigration/nationality lawyers regarding my renunciation and wind-up of US tax compliance and filing of my Form 8854 to certify that I am in compliance for the requisite number of years (as that was my own decision as I had to do so to be able to get through the complexity of it all – unable to do that myself). But I will never forgive the US for stealing from my son’s RDSP and from Canadian taxpayers.
“Liberals believe Foreign Affairs Minister John Baird should have asked the U.S. for amnesty against penalties as the IRS’s Foreign Bank Account Reporting requirements were not adequately communicated to dual-citizens living in Canada.”
Clearly, the Liberals have not understood FATCA. If they had, they would have understood that the word “amnesty” in IRS-speak means getting it up the back end.
I disagree with their premise that “tax information” is what is being handed over. How much I have in my bank account is not tax information.
‘I disagree with their premise that “tax information” is what is being handed over. How much I have in my bank account is not tax information.’
Yes that is exactly true. US Tax Court stated exactly that distinction when refusing to take jurisdiction over FBAR penalties.
I disagree with their premise that “tax information” is what is being handed over. How much I have in my bank account is not tax information.
Unfortunately, it could be viewed as relevant for US estate tax. Also exit tax, I suppose.
“While the US has the right to target tax evaders using offshore accounts”
The key problem is the determination of “tax evaders”. The US does NOT have a right to tax citizens regardless of where they reside and does NOT have the right to force (or coerce via finacial restrictions) people who have the ability to choose otherwise to be US citizens.
Being born in another country to a US citizen does NOT make you a US citizen regardless of what the US government says. Certainly, the ability to BECOME a US citizen may be granted in such circumstances but it should be a personal choice, not an automatic bestowal.
“Being born in another country to a US citizen does NOT make you a US citizen regardless of what the US government says. Certainly, the ability to BECOME a US citizen may be granted in such circumstances but it should be a personal choice, not an automatic bestowal.”
As far as I can tell, that’s exactly what it is. The problem arises when the person’s parents register the person’s birth at a US consulate before the person turns 18. Then at age 18 the person has 6 months to figure out whether to renounce or whether to move to the US (since the former option of remaining a non-resident US citizen is now unendurable).
After age 18 the person can decide for themselves. If the parents didn’t register the person, the person can decide when they know if they want to register their own birth at a US consulate and become a US citizen.
@Norman Diamond
What if for some reason someone like this over the age of 18 1/2 needs to go to the US consulate to get proof that s/he’s NOT a US citizen? I’ve heard of some banks (not in Canada) asking whether either or both of their customer’s parents were US citizens.
Norman Diamond and Rise and Fall,
I have to weigh in again. I know I am annoying and no one has to feel like I do about the advice I have been given vs the advice on the subject here at Brock.
I agree with you that the ability to become a US citizen SHOULD BE a personal choice, not an automatic bestowal. I agree 100%. No one should be entrapped into a US citizenship without their consent or, possibly, the consent of their parents, guardians, trustees in some circumstances — though I don’t really think it is up to them unless there are special circumstances either. I maintain that it should be that if there are facts for accepting a US citizenship but it is not CLAIMED by a person when he or she becomes an adult AND with requisite mental capacity, US citizenship, AGAIN, SHOULD BE null and void. With the consequences of US citizenship-based taxation, that should only ever be choice, never an automatic acquisition of US citizenship. What were they smoking when they made such unjust law?
However, until someone tells me absolutely that is so and that when I am gone the US will not be able to somehow go after the inheritance left to my children, one of whom has not renounced and cannot renounce, because of lack of requisite mental capacity, his said *acquired* US citizenship — I have to take into consideration what I have been told by more than one *authority* — that my children WERE US citizens from their first breath, born to two US citizens in Canada.
I don’t know who I will actually trust to give me that information — my trust in so many has vanished. Perhaps it will only be through litigation — for my family’s purposes and that of many others it would be litigation won against CBT in the US. Is that possible in my remaining years?
I don’t think I can throw any of this out of the window to accept other advice — I have been trying for many years now to get someone to STATE that my son has a CLAIM to US citizenship. No one will give me those simple words I want — why is that? Again, I agree with you and what you say is the stance that I take, but it is not solid enough for my purposes, bank purposes should I be challenged or estate purposes that will involve a trust company and discretionary trust to move seamlessly from the provincial funding my son has today to the funding that I will provide (as he will no longer be eligible for provincial funding) once my assets pass to my children.
“What if for some reason someone like this over the age of 18 1/2 needs to go to the US consulate to get proof that s/he’s NOT a US citizen?”
That’s relatively easy to obtain for citizens of most of the world’s countries: just get a stamp in their non-US passport saying something like “Application filed” without a corresponding visa from the US ^_^
Even if for some reason the US consulate grants the tourist visa, that will also be proof.
“I’ve heard of some banks (not in Canada) asking whether either or both of their customer’s parents were US citizens.”
Yes, and some also deny accounts to Canadians because they can’t tell the difference between the US and Canada. Luckily that didn’t happen to me … yet……
@Norman Diamond
There’s a strong likelihood that if someone who’s entitled to US citizenship applies for a visa to enter the US, they’ll be given a US passport instead. There have been accounts of this happening.
“I know I am annoying”
Oh, have I been unwittingly giving you lessons? You owe me tuition fees ^_^
“I don’t know who I will actually trust to give me that information”
You’re right. I only pointed you to web pages of a US embassy and US State Department. Now without a bit of irony, after George pointed out in another thread that I unwisely relied on web pages of the IRS when we should have known how reliable that entity is, we know now that I have an unfortunate tendency to refer to unreliable information. You’re right, there is absolutely no way to know.
“I have been trying for many years now to get someone to STATE that my son has a CLAIM to US citizenship.”
If you’re only trying to get someone to state it, someone (or two) stated it in two US government web pages that I pointed you to. But you actually want it from a reliable source, maybe there is no way.
Maybe you could point Howard Kavaler to those two US government web pages, one being his own agency and the other the embassy, and ask for confirmation of whether Section 301(c) of the Immigration and Nationality Act is actually enforced against a person who was never registered. See if he wants to get his own agency and the US embassy to change their practices. Practices aren’t the same as laws, but at least we might find out how sure Mr. Kavaler is about his own statement.
“There’s a strong likelihood that if someone who’s entitled to US citizenship applies for a visa to enter the US, they’ll be given a US passport instead. There have been accounts of this happening.”
I’ve seen accounts of people being tricked into exercising their claims to US citizenship and then getting a US passport, but I haven’t seen accounts of someone getting US citizenship forced upon them when they and their parents didn’t file consular reports of birth. Can you point me to some?
An officer should determine whether a person acquired citizenship at birth by referring to the applicable statutory provisions and conditions that existed at the time of the person’s birth. These provisions have been modified extensively over the years. [5] The following sections provide the current law.
B. Child Born in Wedlock [6]
1. Child of Two U.S. Citizen Parents [7]
A child born outside of the United States and its outlying possessions acquires citizenship at birth if at the time of birth:
•Both of the child’s parents are U.S. citizens; and
•At least one parent had resided in the United States or one of its outlying possessions.
CHECK, CHECK, CHECK — US says US citizenship WAS ACQUIRED at birth with these facts. My son’s long-form Canadian birth certificate would show the birthplace of his parents. (Accounts for my son are identified in my FBARs.)
The following says if documentation of that status acquired at birth is required, a application for Certificate of Citizenship must be submitted. Whether documentation of the fact or not, it appears my son (as well as my daughter who has renounced) was a US citizen by birth in Canada to two US citizens, both of whom met the time in the US requirements. I doubt my son would be required to take an Oath of Citizenship even if documentation was applied for.
D. Application for Certificate of Citizenship (Form N-600)
A person born abroad who acquires U.S. citizenship at birth is not required to file an Application for Certificate of Citizenship (Form N-600). A person who seeks documentation of such status, however, must submit an application to obtain a Certificate of Citizenship from USCIS. A person may also apply for a U.S. Passport with the Department of State to serve as evidence of his or her U.S. citizenship. [14]
A person who is at least 18 years of age may submit the Application for Certificate of Citizenship on his or her own behalf. If the application is for a child who has not reached 18 years of age, the child’s U.S. citizen parent or legal guardian must submit the application. [15]
USCIS will issue a proof of U.S. citizenship in the form of a Certificate of Citizenship if the Application for Certificate of Citizenship is approved and the person takes the Oath of Allegiance, if required to do so. [16]
The above is essentially what I’ve been told by the US Consulate in Calgary, by a US tax lawyer in Calgary, by an immigration / nationality lawyer at a Calgary law firm, by an immigration / nationality lawyer in Washington, DC, and by Department of State Legal, Howard Kavaler.
It has also been suggested by Conservative MPs in a heckling in Canadian Parliament that my son *should just renounce*. https://www.youtube.com/watch?v=ANqVaEpRi_4
Where is the exit to the maze? I don’t see one. Neither I nor my son will travel to the US. The question remains — what can happen (OR NOT) when I die and a discretionary trust for my son takes effect?
“An officer should determine whether a person acquired citizenship at birth”
I guess that should mean a consular officer, and might include an immigration officer at a border or airport because of the wording here, but instructions that I found only indicate consular officers.
The instructions here don’t when, under what conditions, an officer should perform the determination. There are about seven billion persons who haven’t had such determinations made. Your son is still one of those seven billion.
“A person born abroad who acquires U.S. citizenship at birth is NOT REQUIRED to file an Application for Certificate of Citizenship” but IS ALLOWED to apply.
“In general, an applicant must appear in person for an interview before a USCIS officer after filing an Application for Certificate of Citizenship. This includes the U.S. citizen parent or legal guardian if the application is filed on behalf of a child under 18 years of age. USCIS, however, may waive the interview requirement if all the required documentation necessary to establish the applicant’s eligibility is already included in USCIS administrative records, or if the application is accompanied by one of the following: […]”
Great! Your son is over 18 so you can’t file for him. Let him file for himself. Make sure he doesn’t include any of the required documentation.
“If an officer denies the Certificate of Citizenship application, the officer must notify the applicant in writing of the reasons for denial and include information on the right to appeal in the notice. An applicant may file an appeal within 30 calendar days after service of the decision (33 days if the decision was mailed).”
Great! I don’t know if your son can read or not, but he doesn’t have to read. Make sure he doesn’t appeal. Wait 33 days.
Obviously he will still have a claim on US citizenship if he gets tricked into exercising it some day in the future, but until then he has a certificate of freedom.
“Citizenship is not determined by birth in the United States alone. It is possible for U.S. citizen parents to transmit citizenship to their children depending on when the child was born and when the parents lived in the United States. Occasionally, during the visa process, officers may discover that an applicant qualifies to be an U.S. citizen.”
Calgary411
I have told you in the past to apply to CRA to rule your son is not a USA citizen
Do you believe your son acquired US citizenship at birth?
This should be not based on US law only your belief and a reasonable explanation I assume he has never voted in US election or traveled on US passport.
No Canadian government will destroy the economy because some USA citizens who do not want to renounce may receive some nasty letters that will not be enforced unless they are not Canadian citizen and they made the money in USA. This is because the Liberal party in 1995 over ruled the revenue rule.
Unambiguous U.S. place of birth Unambiguous U.S. place of birth
8.27 When the indicium found is an unambiguous indication of a U.S. place of birth, the account must be reported unless the financial institution obtains or currently maintains a record of all of the following:
a self-certification showing that the account holder is neither a U.S. resident nor a U.S. citizen;
evidence of the account holder’s citizenship in a country other than the U.S. (for example, a passport or other government-issued identification); and
a copy of the account holder’s Certificate of Loss of Nationality of the United States (a “CLN”) or a reasonable explanation of why:
the account holder does not have such a certificate despite having relinquished U.S. citizenship; or
the account holder did not obtain U.S. citizenship at birth.
.
.
Financial institutions should not accept as reasonable any explanation which is unlikely or ambiguous in light of an account holder’s actions. For example, if a financial institution knows that the individual voted in an U.S. election or travelled from Canada to a country (other than the U.S.) under a U.S. passport after the date the account holder claims to have relinquished U.S. citizenship, the financial institution does not have to accept the explanation.
.
Financial institutions may accept as reasonable an explanation as to why an account holder did not obtain U.S. citizenship at birth if the individual can explain why, despite being born in the U.S., they were not subject to U.S. jurisdiction. This would include individuals born in the U.S. while one or both of their parents were in the U.S. as the head or member of a diplomatic mission.” http://www.cra-arc.gc.ca/tx/nnrsdnts/nhncdrprtng/gdnc-eng.html
Thanks, again, Goerge III.
Perhaps I should decide to send CRA a note to ask if they would have the authority to rule on whether my son or anyone like my son would or would not be a US citizen — before I give them further information and get myself into even deeper trouble.
I still maintain that this is not about my son — it is about all such sons and daughters or any other US tainted persons without *requisite mental capacity*. This needs to be addressed in adequate and just law (what and where that would be I’m not clear on), not on an individual basis for families who would pursue that. Where does that put the others and their families? At any rate, that is why I will, if accepted and if this is useful, be a witness for the Canadian litigation.
“Occasionally, during the visa process, officers may discover that an applicant qualifies to be an U.S. citizen.”
Sure, but “qualifies to be” is very clearly different from “is”. No matter what Bill Clinton’s meaning of “is” is, “qualifies to be” isn’t.
If the qualifying person doesn’t make a consular report of their birth, they still qualify without being one (until they relinquish by using their non-US passport to enter the US, etc.). They can still wait for their non-US passport to get either a visa or an “application received” stamp.
“Perhaps I should decide to send CRA a note to ask if they would have the authority to rule on whether my son or anyone like my son would or would not be a US citizen”
That’s pretty hard to imagine. CRA doesn’t even get to decide who’s a Canadian citizen, so how could they administer another country’s laws about their citizenships?
Despite the unreliability of information published by US government agencies, if you don’t have anything better then maybe you can still act on what they say. Until your son makes a consular report of his birth, he qualifies but has not obtained US citizenship.
“Perhaps I should decide to send CRA a note to ask if they would have the authority to rule on whether my son or anyone like my son would or would not be a US citizen”
That’s pretty hard to imagine.
Of course it is, Norman Diamond — that is what I thought as well. I can and will do nothing but what I’m already not doing.
This response confirms that the Liberals have NO understanding of FATCA, CBT or any of these kinds of things. The most that one can infer is that the writer understands that FATCA is a negative thing for a certain group of Canadians.
Since they are the party in power we need to “educate them fast”.
We’ll see what happens now that the shoe’s on the other foot.
Globally, liberals tend to favor FATCA over human rights.
The Conservative political double talk we’ve faced in Canada and the Liberals buy into it?
Do they need copies of my US tax returns on which I paid the US IRS US$3,661 for the bonds and grants the Canadian government (read: Canadian taxpayer) contributed to the RDSP (Registered Education Savings Plan) for which I am the HOLDER on behalf of my son (who is the beneficiary in payments starting when he is 62). Is that not theft from Canada and its taxpayers? The RDSP is a Canadian registered savings plan (*foreign trust to the US) and *as exempted as* the RESP and the TFSA. When will any Canadian government work to obtain my refund from the IRS?
I grudgingly forgive the substantial money I had to pay US tax lawyers, US tax accountants and US immigration/nationality lawyers regarding my renunciation and wind-up of US tax compliance and filing of my Form 8854 to certify that I am in compliance for the requisite number of years (as that was my own decision as I had to do so to be able to get through the complexity of it all – unable to do that myself). But I will never forgive the US for stealing from my son’s RDSP and from Canadian taxpayers.
I agree, The Animal, they need some education pronto. I expect Prime Minister Justin Trudeau to have moved on, better educated, since January 2014: http://isaacbrocksociety.ca/2014/01/23/mps-ted-hsu-and-scott-brison-with-q121-and-q127-understand-fatca-but-does-the-leader-of-the-liberal-party-justin-trudeau/.
“Liberals believe Foreign Affairs Minister John Baird should have asked the U.S. for amnesty against penalties as the IRS’s Foreign Bank Account Reporting requirements were not adequately communicated to dual-citizens living in Canada.”
Clearly, the Liberals have not understood FATCA. If they had, they would have understood that the word “amnesty” in IRS-speak means getting it up the back end.
I disagree with their premise that “tax information” is what is being handed over. How much I have in my bank account is not tax information.
‘I disagree with their premise that “tax information” is what is being handed over. How much I have in my bank account is not tax information.’
Yes that is exactly true. US Tax Court stated exactly that distinction when refusing to take jurisdiction over FBAR penalties.
I disagree with their premise that “tax information” is what is being handed over. How much I have in my bank account is not tax information.
Unfortunately, it could be viewed as relevant for US estate tax. Also exit tax, I suppose.
“While the US has the right to target tax evaders using offshore accounts”
The key problem is the determination of “tax evaders”. The US does NOT have a right to tax citizens regardless of where they reside and does NOT have the right to force (or coerce via finacial restrictions) people who have the ability to choose otherwise to be US citizens.
Being born in another country to a US citizen does NOT make you a US citizen regardless of what the US government says. Certainly, the ability to BECOME a US citizen may be granted in such circumstances but it should be a personal choice, not an automatic bestowal.
“Being born in another country to a US citizen does NOT make you a US citizen regardless of what the US government says. Certainly, the ability to BECOME a US citizen may be granted in such circumstances but it should be a personal choice, not an automatic bestowal.”
As far as I can tell, that’s exactly what it is. The problem arises when the person’s parents register the person’s birth at a US consulate before the person turns 18. Then at age 18 the person has 6 months to figure out whether to renounce or whether to move to the US (since the former option of remaining a non-resident US citizen is now unendurable).
After age 18 the person can decide for themselves. If the parents didn’t register the person, the person can decide when they know if they want to register their own birth at a US consulate and become a US citizen.
@Norman Diamond
What if for some reason someone like this over the age of 18 1/2 needs to go to the US consulate to get proof that s/he’s NOT a US citizen? I’ve heard of some banks (not in Canada) asking whether either or both of their customer’s parents were US citizens.
Norman Diamond and Rise and Fall,
I have to weigh in again. I know I am annoying and no one has to feel like I do about the advice I have been given vs the advice on the subject here at Brock.
I agree with you that the ability to become a US citizen SHOULD BE a personal choice, not an automatic bestowal. I agree 100%. No one should be entrapped into a US citizenship without their consent or, possibly, the consent of their parents, guardians, trustees in some circumstances — though I don’t really think it is up to them unless there are special circumstances either. I maintain that it should be that if there are facts for accepting a US citizenship but it is not CLAIMED by a person when he or she becomes an adult AND with requisite mental capacity, US citizenship, AGAIN, SHOULD BE null and void. With the consequences of US citizenship-based taxation, that should only ever be choice, never an automatic acquisition of US citizenship. What were they smoking when they made such unjust law?
However, until someone tells me absolutely that is so and that when I am gone the US will not be able to somehow go after the inheritance left to my children, one of whom has not renounced and cannot renounce, because of lack of requisite mental capacity, his said *acquired* US citizenship — I have to take into consideration what I have been told by more than one *authority* — that my children WERE US citizens from their first breath, born to two US citizens in Canada.
I don’t know who I will actually trust to give me that information — my trust in so many has vanished. Perhaps it will only be through litigation — for my family’s purposes and that of many others it would be litigation won against CBT in the US. Is that possible in my remaining years?
Here is advice from two of those, both paid for and not paid for. http://isaacbrocksociety.ca/2014/10/23/its-time/comment-page-8/#comment-1933330.
I don’t think I can throw any of this out of the window to accept other advice — I have been trying for many years now to get someone to STATE that my son has a CLAIM to US citizenship. No one will give me those simple words I want — why is that? Again, I agree with you and what you say is the stance that I take, but it is not solid enough for my purposes, bank purposes should I be challenged or estate purposes that will involve a trust company and discretionary trust to move seamlessly from the provincial funding my son has today to the funding that I will provide (as he will no longer be eligible for provincial funding) once my assets pass to my children.
“What if for some reason someone like this over the age of 18 1/2 needs to go to the US consulate to get proof that s/he’s NOT a US citizen?”
That’s relatively easy to obtain for citizens of most of the world’s countries: just get a stamp in their non-US passport saying something like “Application filed” without a corresponding visa from the US ^_^
Even if for some reason the US consulate grants the tourist visa, that will also be proof.
“I’ve heard of some banks (not in Canada) asking whether either or both of their customer’s parents were US citizens.”
Yes, and some also deny accounts to Canadians because they can’t tell the difference between the US and Canada. Luckily that didn’t happen to me … yet……
@Norman Diamond
There’s a strong likelihood that if someone who’s entitled to US citizenship applies for a visa to enter the US, they’ll be given a US passport instead. There have been accounts of this happening.
“I know I am annoying”
Oh, have I been unwittingly giving you lessons? You owe me tuition fees ^_^
“I don’t know who I will actually trust to give me that information”
You’re right. I only pointed you to web pages of a US embassy and US State Department. Now without a bit of irony, after George pointed out in another thread that I unwisely relied on web pages of the IRS when we should have known how reliable that entity is, we know now that I have an unfortunate tendency to refer to unreliable information. You’re right, there is absolutely no way to know.
“I have been trying for many years now to get someone to STATE that my son has a CLAIM to US citizenship.”
If you’re only trying to get someone to state it, someone (or two) stated it in two US government web pages that I pointed you to. But you actually want it from a reliable source, maybe there is no way.
Maybe you could point Howard Kavaler to those two US government web pages, one being his own agency and the other the embassy, and ask for confirmation of whether Section 301(c) of the Immigration and Nationality Act is actually enforced against a person who was never registered. See if he wants to get his own agency and the US embassy to change their practices. Practices aren’t the same as laws, but at least we might find out how sure Mr. Kavaler is about his own statement.
“There’s a strong likelihood that if someone who’s entitled to US citizenship applies for a visa to enter the US, they’ll be given a US passport instead. There have been accounts of this happening.”
I’ve seen accounts of people being tricked into exercising their claims to US citizenship and then getting a US passport, but I haven’t seen accounts of someone getting US citizenship forced upon them when they and their parents didn’t file consular reports of birth. Can you point me to some?
From: http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartH-Chapter3.html
An officer should determine whether a person acquired citizenship at birth by referring to the applicable statutory provisions and conditions that existed at the time of the person’s birth. These provisions have been modified extensively over the years. [5] The following sections provide the current law.
B. Child Born in Wedlock [6]
1. Child of Two U.S. Citizen Parents [7]
A child born outside of the United States and its outlying possessions acquires citizenship at birth if at the time of birth:
•Both of the child’s parents are U.S. citizens; and
•At least one parent had resided in the United States or one of its outlying possessions.
CHECK, CHECK, CHECK — US says US citizenship WAS ACQUIRED at birth with these facts. My son’s long-form Canadian birth certificate would show the birthplace of his parents. (Accounts for my son are identified in my FBARs.)
The following says if documentation of that status acquired at birth is required, a application for Certificate of Citizenship must be submitted. Whether documentation of the fact or not, it appears my son (as well as my daughter who has renounced) was a US citizen by birth in Canada to two US citizens, both of whom met the time in the US requirements. I doubt my son would be required to take an Oath of Citizenship even if documentation was applied for.
D. Application for Certificate of Citizenship (Form N-600)
A person born abroad who acquires U.S. citizenship at birth is not required to file an Application for Certificate of Citizenship (Form N-600). A person who seeks documentation of such status, however, must submit an application to obtain a Certificate of Citizenship from USCIS. A person may also apply for a U.S. Passport with the Department of State to serve as evidence of his or her U.S. citizenship. [14]
A person who is at least 18 years of age may submit the Application for Certificate of Citizenship on his or her own behalf. If the application is for a child who has not reached 18 years of age, the child’s U.S. citizen parent or legal guardian must submit the application. [15]
USCIS will issue a proof of U.S. citizenship in the form of a Certificate of Citizenship if the Application for Certificate of Citizenship is approved and the person takes the Oath of Allegiance, if required to do so. [16]
The above is essentially what I’ve been told by the US Consulate in Calgary, by a US tax lawyer in Calgary, by an immigration / nationality lawyer at a Calgary law firm, by an immigration / nationality lawyer in Washington, DC, and by Department of State Legal, Howard Kavaler.
It has also been suggested by Conservative MPs in a heckling in Canadian Parliament that my son *should just renounce*. https://www.youtube.com/watch?v=ANqVaEpRi_4
Where is the exit to the maze? I don’t see one. Neither I nor my son will travel to the US. The question remains — what can happen (OR NOT) when I die and a discretionary trust for my son takes effect?
“An officer should determine whether a person acquired citizenship at birth”
I guess that should mean a consular officer, and might include an immigration officer at a border or airport because of the wording here, but instructions that I found only indicate consular officers.
The instructions here don’t when, under what conditions, an officer should perform the determination. There are about seven billion persons who haven’t had such determinations made. Your son is still one of those seven billion.
“A person born abroad who acquires U.S. citizenship at birth is NOT REQUIRED to file an Application for Certificate of Citizenship” but IS ALLOWED to apply.
“In general, an applicant must appear in person for an interview before a USCIS officer after filing an Application for Certificate of Citizenship. This includes the U.S. citizen parent or legal guardian if the application is filed on behalf of a child under 18 years of age. USCIS, however, may waive the interview requirement if all the required documentation necessary to establish the applicant’s eligibility is already included in USCIS administrative records, or if the application is accompanied by one of the following: […]”
Great! Your son is over 18 so you can’t file for him. Let him file for himself. Make sure he doesn’t include any of the required documentation.
“If an officer denies the Certificate of Citizenship application, the officer must notify the applicant in writing of the reasons for denial and include information on the right to appeal in the notice. An applicant may file an appeal within 30 calendar days after service of the decision (33 days if the decision was mailed).”
Great! I don’t know if your son can read or not, but he doesn’t have to read. Make sure he doesn’t appeal. Wait 33 days.
Obviously he will still have a claim on US citizenship if he gets tricked into exercising it some day in the future, but until then he has a certificate of freedom.
“Citizenship is not determined by birth in the United States alone. It is possible for U.S. citizen parents to transmit citizenship to their children depending on when the child was born and when the parents lived in the United States. Occasionally, during the visa process, officers may discover that an applicant qualifies to be an U.S. citizen.”
http://montreal.usconsulate.gov/service/qualifying-for-u.s.-citizenship
Calgary411
I have told you in the past to apply to CRA to rule your son is not a USA citizen
Do you believe your son acquired US citizenship at birth?
This should be not based on US law only your belief and a reasonable explanation I assume he has never voted in US election or traveled on US passport.
No Canadian government will destroy the economy because some USA citizens who do not want to renounce may receive some nasty letters that will not be enforced unless they are not Canadian citizen and they made the money in USA. This is because the Liberal party in 1995 over ruled the revenue rule.
Unambiguous U.S. place of birth Unambiguous U.S. place of birth
8.27 When the indicium found is an unambiguous indication of a U.S. place of birth, the account must be reported unless the financial institution obtains or currently maintains a record of all of the following:
a self-certification showing that the account holder is neither a U.S. resident nor a U.S. citizen;
evidence of the account holder’s citizenship in a country other than the U.S. (for example, a passport or other government-issued identification); and
a copy of the account holder’s Certificate of Loss of Nationality of the United States (a “CLN”) or a reasonable explanation of why:
the account holder does not have such a certificate despite having relinquished U.S. citizenship; or
the account holder did not obtain U.S. citizenship at birth.
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Financial institutions should not accept as reasonable any explanation which is unlikely or ambiguous in light of an account holder’s actions. For example, if a financial institution knows that the individual voted in an U.S. election or travelled from Canada to a country (other than the U.S.) under a U.S. passport after the date the account holder claims to have relinquished U.S. citizenship, the financial institution does not have to accept the explanation.
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Financial institutions may accept as reasonable an explanation as to why an account holder did not obtain U.S. citizenship at birth if the individual can explain why, despite being born in the U.S., they were not subject to U.S. jurisdiction. This would include individuals born in the U.S. while one or both of their parents were in the U.S. as the head or member of a diplomatic mission.”
http://www.cra-arc.gc.ca/tx/nnrsdnts/nhncdrprtng/gdnc-eng.html
Thanks, again, Goerge III.
Perhaps I should decide to send CRA a note to ask if they would have the authority to rule on whether my son or anyone like my son would or would not be a US citizen — before I give them further information and get myself into even deeper trouble.
I still maintain that this is not about my son — it is about all such sons and daughters or any other US tainted persons without *requisite mental capacity*. This needs to be addressed in adequate and just law (what and where that would be I’m not clear on), not on an individual basis for families who would pursue that. Where does that put the others and their families? At any rate, that is why I will, if accepted and if this is useful, be a witness for the Canadian litigation.
“Occasionally, during the visa process, officers may discover that an applicant qualifies to be an U.S. citizen.”
Sure, but “qualifies to be” is very clearly different from “is”. No matter what Bill Clinton’s meaning of “is” is, “qualifies to be” isn’t.
If the qualifying person doesn’t make a consular report of their birth, they still qualify without being one (until they relinquish by using their non-US passport to enter the US, etc.). They can still wait for their non-US passport to get either a visa or an “application received” stamp.
“Perhaps I should decide to send CRA a note to ask if they would have the authority to rule on whether my son or anyone like my son would or would not be a US citizen”
That’s pretty hard to imagine. CRA doesn’t even get to decide who’s a Canadian citizen, so how could they administer another country’s laws about their citizenships?
Despite the unreliability of information published by US government agencies, if you don’t have anything better then maybe you can still act on what they say. Until your son makes a consular report of his birth, he qualifies but has not obtained US citizenship.
Of course it is, Norman Diamond — that is what I thought as well. I can and will do nothing but what I’m already not doing.