This posting is dedicated to Meunier.
Caveat: only a lawyer can or should attempt to read written law. (You can pay lawyers, and pay them exorbitantly — with no guarantees that they can read the stuff either.)
Even so, an extraterritorial U.S. person who holds only a U.S. passport may want to take a glance at the recent passport-related legislation glommed into the FAST Act.
The Fixing America’s Surface Transportation Act can be found at
https://www.congress.gov/114/bills/hr22/BILLS-114hr22enr.pdf
On pages 418-422 is found
Title XXXII–OFFSETS
Subtitle A–Tax Provisions
which adds to Internal Revenue Code “the following new section:”
SEC. 7345. REVOCATION OR DENIAL OF PASSPORT IN CASE OF
CERTAIN TAX DELINQUENCIES.
The not-comforting language in these five pages includes this zinger:
The taxpayer may bring a civil action against the United States in a district court of the United States or the Tax Court to determine whether the certification was erroneous or whether the Commissioner has failed to reverse the certification.
This seems to translate as — “You think the U.S. has made a mistake? O.K. Up to you and your lawyer to sue the United States. And good luck to you.”
The tired cliché “Timing is everything” may liven up with entirely new meanings for a person who finds themselves assessed and then either has notice of lien filed against them with “administrative rights” OR faces levy “pursuant to section 6331.”
So what is that bit after the little word “or”? It seems to be this:
26 U.S. Code § 6331 – Levy and distraint
https://www.law.cornell.edu/uscode/text/26/6331
This section starts off with some viciously tight timelining:
If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary to collect such tax (and such further sum as shall be sufficient to cover the expenses of the levy) by levy upon all property and rights to property …
Apart from the clear presence of time windows whose business is inexorable closure (whatever the specified periods may amount to in the only-for-lawyers details), some more accessible news (p. 421-422) falls under the heading
WITHOUT SOCIAL SECURITY ACCOUNT NUMBER
and provides for the denial of passport to anyone (i) not providing a number, or (ii) providing “an incorrect or invalid social security number willfully, intentionally, negligently, or recklessly.”
That memorable string of adverbs should cover just about anything?
When all is said and done, though, only a lawyer can or should attempt to read written law.
But sometimes curiosity leads into doing scary things. Especially scary for the extraterritorial U.S. person without alternative passport.
Yours truly, a fearless explorer, a survivor of many shipwrecks — never through airlift because neither a bird (condor, ostrich, whatever) nor a U.S. person who can count on that famous benefit of worldwide extraction from dire situations.
Oops, forgot, ostriches can’t fly anyway. Still, they are feathered bipeds. Feathered without tar, by the way.
I don’t think I’ve ever read or here or anywhere else that an American could relinquish their US citizenship at the US border by using a non-US passport. I have however in the past suggested that the US might have recognized a relinquishment by agreeing not enforcing their law that requires US citizens to enter the US on non-US passport.
Unfortunately BB is right. There is no evidence that using a non US passport to enter the U.S. is a relinquishing act. I would be extremely happy to be proven wrong on this because it would help a great deal.
It looks like I misunderstood the situation.
Some searches now do not find any evidence that use of a non-US passport to enter or exit the US is a relinquishing act.
If I understand correctly now, use of a non-US passport to enter or exit the US is evidence that a person held intention to relinquish at the time that they performed a potentially relinquishing act. However, the potentially relinquishing act must be one of the listed acts, and the use of a non-US passport is not in that list, it is only evidence of intent.
So if I flew to the US and presented my Canadian passport, it would be evidence of having had intent to relinquish US citizenship at the time of taking Canadian citizenship. However, that evidence would be overcome by my renewals of US passport, so it wouldn’t have ended my US citizenship. Having made the mistake of retaining US citizenship at the time of taking Canadian citizenship, renunciation was the only way out later.
Has anyone, who is dual citizen, tried to enter or exit the U.S. using non-US passport? Did it work?
Octopus. It happens every day. For everyone who is given a hard time, there are hundreds who are told ‘ have a nice trip’ check the sidebar under Important information-your experiences-entering the US
@Octopus
Yes. Three months ago. No questions asked.
Octopus – Only use a US passport to enter the US, always use my EU passport to leave and all other travel.
@Octopus, I relinquished but never bothered to get a CLN and use my EU passport for ALL travel.
—-
You write and words are important, “Has anyone, who is dual citizen, tried to enter or exit the U.S. using non-US passport? Did it work?”
IF you consider yourself dual (which does not exist in US Law or international law) then you consider yourself a US Citizen and need to follow USA laws.
George The US certainly recognizes dual citizenship. So do most other countries. I understand Octopus is asking about using another country’s passport showing a U.S. birthplace. He does not need to use a U.S. passport if he chooses not to.
In 2011, after my renunciation but before receiving CLN, I used my Canadian passport to enter and exit the US. The immigration inspector in the airport stamped my passport with permission to enter, no expiry date, and class NC.
In 2013, after receiving my CLN, the immigration inspector in the airport stamped my passport with permission to enter, expiry date 6 months later, and class B2.
So I think in 2011 I was still a dual citizen but the inspector’s computer knew about my renunciation. I had no problem.
To the best of my understanding, the US government’s recognition of dual citizenship is a matter of practices based on practicality, not statutes. When I sent my US passport to the US embassy in Tokyo for cancellation, the embassy phoned, wanted to return my passport, and emphasized that the US allows dual citizenship between the US and Canada.
@Duke, as Norman stated “dual citizenship” is not something that is in law.
EXCEPT, the UK in law defines and permits in law Commonwealth Citizenship and along with all other members of the EU, Citizenship of the European Union.
The Republic of Ireland is also another excellent example in law as you are either a Citizen of the Republic or an Alien (but also in law a British Citizen is not an Alien in the Republic).
My problem in using a term like “Dual” is that when you use it enough times it takes on a magical and deemed legal meaning!
The Hague Convention (master nationality rule) attempted to resolve this but the exceptional states of america did not sign it and other countries give it lip service.
Despite the written gems from State it is impossible to simultaneously provide dual allegience at the same time….impossible.
@Duke, “He does not need to use a U.S. passport if he chooses not to.”
Under US Code, a USC is required to enter the USA and if requested to show a document on exiting then also to show a US Passport. Whilst “dual” is not stated anywhere in the US Code, there is a legal requirement on passport use.
The moment a person states “I am dual” they are recognizing and claiming USC and with that comes a lot of baggage.
A USC must follow US Law and calling oneself dual recognizes that.
Ginny and Gwenn do not recognize themselves as USC despite that one or more foreign governments may have bestowed something on them. Ergo, they have no personal problem entering and leaving the USA on a Canadian Passport.
I see nothing wrong with a Canadian Citizen born in the USA entering the USA on a Canadian Passport if they do not consider themselves “dual” or anything else, despite not having a CLN or any other foreign paper.
If Octopus enters the USA on an Irish Passport w/Boston, Mass birthplace (added for clarity, not true) if he is asked why is he not using a US Passport he will have to state why. Because he considers himself dual he has not relinquished and is therefor violating US Law and at risk of prosecution.
Thanks guys, I did not expect so many great answers. My case is even more complicated, both of my parents are US citizens but I was born overseas, thats why I have dual citizenship. So my US passport actually shows non-US birthplace so does my EU passport.
Thinking about it now, I would bet they will try to flag you somewhere in the CBP database for “illegal entry” if one tries to exit the US using non-US passport with no arrival record on.
@George “despite not having a CLN” and “I relinquished but never bothered to get a CLN and use my EU passport for ALL travel”
I understand your analysis on why calling yourself a “dual” would trigger the taint of american citizenship.
But please explain further on how relinquishing without having a CLN works. I know there have been numerous discussions on this website over the years on how theoretically legally speaking you shouldn’t need a CLN, but does that really work for you? Have you ever gone back to the US using a foreign passport without a CLN?
Re: dual nationality
There are some situations and treaties where dual nationality and the right to its recognition have been explicitly acknowledged. Article 1(vi) of the addendum on civil rights to The Good Friday Agreement is one:
“(vi) recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland.”
The Micheletti judgment of the CJEU determines how EU countries will treat dual nationals. (I argue that it also must affect how EU countries, and perhaps EEA/Switzerland too, treat conflicting and anomalous tax and tax-treaty situations involving the USA. But in fact (based on my past research on the proprietary database RIA, the IRS seems to observe a “don’t ask don’t tell” policy. Just as it does with trust-like arrangements that are not really trusts at all (“trusts for sale”, “land trusts” that are really joint tenancy or tenancy in common) — but not so much entities (Anstalten, Stiftungen) for which careless (or no) handling on form 3520 can be severely sanctioned.
I would dearly like to know just how many of those alleged 8 million American citizens abroad (a number I think questionable) have American passports. Unlike Switzerland, Netherlands, etc. which have a consular registration requirement, it seems to me that only a small minority of “citizens” abroad are actually known to the USG. Any many others, born abroad, simply deny the connection.
Of course some with a tenuous U.S. connection have called on the USG during and after wartime: Kawakita and many other American-Japanese sought repatriation. And a number of postwar claimants — notably Nottebohm, but unsuccessfully in his case — sought to use one rather than another possessed nationality as a jurisdictional basis. (The Iran-US Claims Commission was more generous than the ICJ was with Nottebohm, but (unfortunately for many Brockers) the very idea of “dominant” or “functional” nationality is scarcely respected anymore.
I think the most likely source of a good outcome would be a human rights tribunal (read: the ECtHR in Strasbourg) addressing what protection a signatory State should give a dual national against whom disproportionate tax, interest and penalty claims have been made. On the other hand I suspect that Washington is well aware of that conundrum and will avoid a situation in which that could happen.
Much depends on how future tax treaty mutual tax collection provisions are drafted, and how exceptions for local nationals (hence the EU/EEA/Swiss case) are drafted. Would an Irish citizen in Britain (not an alien, per the Aliens Act 1949) be exempt? Would any other EU citizen?
In the context of “dual nationality” these things are relevant. And potentially scary.
@Socrates, I relinquished a decade ago having performed a relinquishing act as identified in 8 US Code. The US Govt formally recognized in writing that I relinquished and for certain reasons legal counsel was necessary that was extremely expensive. But I did not get a CLN at that time.
A CLN is not required to lose ones nationality and that right is guaranteed by the Expatriation Act of 1868 which State acknowledges in its 7 FAM series.
I suspect that there was no fee for a relinquishing CLN because someone at State considered a fee to be a violation of the Expatriation Act. That person was probably replaced by someone who determined a fee can be charged because you do not need a CLN to lose ones nationality by performing a relinquishing act. The only way they can justify charging a relinquishing CLN fee is if it is not required to expatriate.
In retrospect, if I had known then what I know now, I would have obtained a CLN. But today I am simply done…finished….want nothing to do with my former home. My legal counsel was excellent for my situation but in regards to CLNs and alike……not their forte, besides my legal fees were running like a broken plumbing fixture and I did not want another set of specialist lawyers.
I have no intention of getting a CLN today. My lawyer at that time prepared several letters for me that explained my situation in case I needed to which I will pass out if needed along with relevent USG letters.
The country I live in is like Canada in that it is possible to function financially without a CLN, unlike Switzerland where a CLN is a must. When I am asked citizenship I state the truth and that I am not a USC.
I have gone back to the US with no difficulty on my sole non-US passport and few questions.
@George thank you for that answer. I know the statute does not require a CLN to relinquish but it’s really fascinating to communicate with someone who’s walked that walk. The fact that you have something in writing from the USG acknowledging relinquishment but it’s not a CLN, now it makes more sense. That “acknowledgement” must have cost a bucket in legal fees, and I have to assume your “relinquishing act” was not a simple naturalization in a foreign country (like most Brockers) but some other act.
Most important–when you arrive in the US from overseas and present your foreign passport–does the immigration officer say you have a US birthplace so where is your CLN? How does that work?
On reflection, there is more to be said. Here’s a paragraph from my PhD dissertation of a couple decades ago:
“Justice Joseph Story was to declare in Shanks v. Dupont, ‘The general doctrine is, that no person can, by any act of their own, without the consent of the government, put off their allegiance and become aliens.’ This contradiction gave rise to the Bancroft agreements concluded between the United States and several European countries between 1868 and 1923 guaranteeing the right of naturalised Americans to be received as such in their countries of origin . In Britain, the Royal Commission of 1868 on the laws of naturalisation and allegiance recommended the abolition of the feudal concept of perpetual allegiance in Great Britain. Its report led to the enactment of the Naturalization Act, 1870 in connection with the naturalisation convention of the same year between the United Kingdom and the United States. After the Second World War, similar problems between the United States and countries of origin of recent immigrants gave rise to the same solution: conventions were negotiated between the United States and Eastern European states from which displaced persons and other migrants had come. Only sovereigns, not courts bound by municipal law, could resolve such conflicts.” [Footnotes omitted]
In addition, problems of dual nationality were addressed in a number of agreements relating to problems of dual nationality that were undertaken among Eastern European states and the Soviet Union in the post-World War II era. Thus: Treaty regulating the nationality of persons having dual nationality, USSR and GDR, Berlin, 11 Apr. 1969, 777 UNTS 143, No. 11073 (1971); Convention regulating the nationality of persons having dual nationality, Hungary and Bulgaria, 27 June 1958, 477 UNTS 321, No. 6927 (1963).
Today, after a series of (in view of the tax consequences) unfortunate SCOTUS and lower and appellate decisions made on the assumption that possession of US nationality (and thus obligations of “allegiance”) is always good, coupled with gender equality (Candice Bredbenner’s dissertation, “A Nationality of Her Own”: http://publishing.cdlib.org/ucpressebooks/view?docId=ft0g500376&brand=ucpress ) multiplied cases of dual nationality and made more difficult its resolution.
Ironically Filipinos were denied US citizenship (they did get protégé status and those who were physically resident in the USA at May 1, 1934 when immigration controls came into effect for them, got Green Card status). They were left with citizenship-based taxation, enacted in 1913 under US tutelage and abrogated only in 1999.
@George wrote: “The country I live in is like Canada in that it is possible to function financially without a CLN, unlike Switzerland where a CLN is a must.”
I haven’t encountered a US nationality presumption or query for accounts either in Canada or in Switzerland. Or any other country where we do business and have accounts. (It may be that we owe these banks money and they could hardly close our accounts in any case.) One bank (Crédit Suisse) asked for a W-9, but then a co-signer on the account (related to a mortgage on Swiss property) lives in California. In Canada (Montréal) the issue never arose, and it was only later after I read the IGA materials that I realised giving a (business) telephone number with a US area code is, by itself, grounds for presumption of US Person status. But I was speaking French and why should the bank manager have raised the issue?
I remember lecturing once at the Université de Montréal on nationality issues and afterwards a couple of (French-speaking) students came up to me and admitted they were “closet Americans” of a dual sort.
As for Switzerland, presenting a Swiss ID card or passport is nice since it specifies place of origin, not place of birth. Which leads me to wonder: could the quotation in the 1987 GAO report on (not) showing place of birth in passports be accurate (page 14: http://www.gao.gov/products/GAO/NSIAD-87-201 )
As I have said before: Never volunteer any information. If the question isn’t asked, don’t address it. And UK passports, from what I know, will show whatever “place of birth” the holder has stated (i.e., the name of a city which could be anywhere). Not every country has the restrictions that the USG imposes, listing possible country names, etc. http://www.state.gov/documents/organization/94675.pdf
And there’s this: http://www.supremecourt.gov/opinions/14pdf/13-628_l5gm.pdf (“Jerusalem” and not “Israel” to be specified in relevant passports.
Octopus. You are indeed fortunate. Think of it as an early Christmas present. You were not born in the US! There is absolutely no reason for you to jump in to the net if you don’t want to get tangled up.
If we’ve saved you Aton of time,trouble and money, consider a donation to ADCS. Happy Holidays.
Investor’s Business Daily: “After Tearing Up First Amendment, IRS Can Tear Up Passports”
@Octopus wrote: “Thinking about it now, I would bet they will try to flag you somewhere in the CBP database for ‘illegal entry’ if one tries to exit the US using non-US passport with no arrival record on.”
In principle, departing the USA with a non-US, non-Canadian passport (after having arrived with a US passport or passport card or enhanced driving licence) means that a departure record should be created. http://www.cbp.gov/travel/international-visitors/i-94-instructions These can be checked online.
Errors are common, and the advice given on the CBP Web site is to keep proof of departure in the event that the airline record does not show up. Or if the traveler has departed by land, the Canadian border officer is supposed to transfer the record; and at the Mexican border the traveller should report to CBP.
A US citizen can not be guilty of “illegal entry” so long as s/he enters by an allowed entry point. There used to be unmanned points where a person crossing could telephone in and be authorised to cross, but I doubt these exist anymore in the post 9/11 era. Perhaps the only place where you can enter and leave without reporting is inside the Haskell Free Library and Opera House, which straddles the frontier at Derby Line VT/Stanstead QC
I am a U.S.citizen living in Laos.
I owe taxes in excess of $50K and haven’t been in the US for eight years.
If I don’t expect to travel, and have nine+ years left until my passport expiry.
I have no idea if a lien has been filed, and how the revocation enforcement action
would (or could) effect me.
If I want to extend an existing overseas Visa, is there a danger in doing that, and when does any
knowledgeable person expect that action attempt to be instituted, please?
“If I want to extend an existing overseas Visa, is there a danger in doing that”
Yes there is.
The US revoked the passport of its chess hero Bobby Fischer because he played chess in the wrong country. The US didn’t notify him although they had his address. The US notified Japan. When Bobby Fischer thought he was going to board a flight for a short vacation, he presented his passport in outbound immigration inspection in Japan, and was arrested for using an invalid passport. He was jailed until Iceland gave him citizenship.
If the US notifies Laos that your passport is revoked, and if Laos checks your passport when you apply to extend your visa, you should expect trouble.