Thank you, Keith Redmond, for sharing the trail of your correspondence with US DOS (Michele Thoren Bond, Assistant Secretary for Consular Affairs, American Citizen Services, US Department of State and Michelle and Michelle Bernier-Toth, whose DOS position is not stated, but it is implied she is an assistant to Jonathan Finer). We appreciate your asking to keep the conversation going to get through the obfuscation from DOS.
From Michelle Bernier-Toth:
Finally, with regard to your colleague’s question about “dominant and effective nationality,” this is a legal concept sometimes used by states and international dispute resolution forums to determine whether certain individuals or states are able to bring legal claims based on violations of international law. Dominant and effective nationality is an extremely fact-specific inquiry, and we do not employ a general definition of the concept in the international claims context in which it arises.
Keith Redmond’s response:
Good Morning –
Though I do not agree with the way in which the US government (and in this case the US State Department) is handling (i.e. not handling) the situation which is adversely affecting the live of citizens of other countries (e.g. French citizens) who have the undesirable US citizenship because of their parent’s unintentional error in having their child on US soil, I sincerely appreciate your responses and would like to keep the dialogue open as I am working with those living the “nightmare reality” on the ground at the hands of the US government. It is important to note that these individuals cannot live normal lives DIRECTLY as a result of the ACTIONS of the US government and in my opinion, as an American, it is shameful what our country is doing to this population and quite frankly does not care.
It is important to note that the trend is for other countries (e.g. France, Israel, Canada, The Netherlands, Italy, etc.) to realise what is being done and to push back on the US government through the appropriate channels (e.g. diplomatic). This problem is not going away and is getting worse until the US government acknowledges the serious hardships it has created globally.
As an American who is focused on these injustices, the fight shall continue for the civil rights of these populations.
(Thanks to JC and badger suggesting better visibility in its own post here at IsaacBrockSociety.ca).
This correspondence shows, yet again, that understanding for our cause and assistance for those affected,are not to be found in the halls of the US government. I have placed a link to this correspondence in a package of support material for our Human Rights Complaint to the United Nations to bolster our claim that we have exhausted all domestic avenues of redress.
Thank you, Keith, for your tireless efforts on behalf of us all.
I think Ms Bond is correct and the concept of dominant and effective nationality is a relic of postwar claims commissions. The Iranian Governnent tried to resuscitate it at the US-Iran Tribunal without I think any success. Traitor and terrorist, and once in a while a foreign diplomat whose posting in the USA is strongly desired by both countries have led to accelerated denaturalisation. The SCOTUS decisions in Afroyim and Terrazas and current notions of allegiance make its use today impossible. What is possible even after Marc Rich and Meier Kahane is for a foreign court to rule on a matter of US nationality in the case of a “denier” without reference to the USG, making that person a “limping citizen”: recognised as such in and by the USA but not in his country of residence. Cross-border rules of dual nationality might encourage such an event. Also foreign countries could (and should) retaliate with special reciprocal taxes overriding treaties (at least in dualist treaty countries that might work).
First, a housekeeping quibble for admins.
Keith Redmond exchanges emails with 2 DOS bots, one a Michele and the other a Michelle.
1. The first responses indeed are from Michele Thoren Bond, Assistant Secretary for Consular Affairs.
2. The dominant nationality exchange (blockquoted above) is actually between Redmond and Michelle Bernier-Toth, whose DOS position is not stated, but it is implied she is an assistant to Jonathan Finer.
Bernier-Toth also quotes this grim little gem floated by DOS to justify bumping the renunciation fee to $2,350: “In short, the comprehensive process of expatriation under U.S. law does not impinge [sic], but rather protects, the right of expatriation.”
Yes, and the added height of concrete and razor wire helped protect the right of East Germans to get over the Berlin Wall.
Thanks very much, Shovel. Hope I have fixed that in the post.
Shovel: “Yes, and the added height of concrete and razor wire helped protect the right of East Germans to get over the Berlin Wall.” Precisely! Well said!
Your words are going in my growing collection of “Arguments and Rebuttals”.
One point of application of the concept of Master Nationality (this is only one of our major arguments against unjust US extraterritorial law).
For gun laws (example), a US person in Australia is not subject to the gun laws of the US but the laws of Australia. This also applies (example) for celebrities bringing in pets to Australia without following procedure (Johnny Depp). Others have pointed out that these US persons even have to drive on the left side of the road and not the right as in the US.
For taxation there is another level of qualification beside which country one is in. For instance if a US person visits Australia, as a visitor they are not subject to Australian Tax on their global income. US tax laws still apply. Thus only when one becomes tax resident should Master Nationality apply. The Australian rules are six months. No doubt there may be some differences between US laws on residence and other nations (snowbird rules for example) – what tax treaties might cover.
I used the gun law example – I think an excellent one – in my letter in reply to Australian Treasurer Scott Morrison who said the issues of US tax in Australia were all a matter for the US in the first instance:
Strengthening this whole argument is important in the battle.
“This correspondence shows, yet again, that understanding for our cause and assistance for those affected,are not to be found in the halls of the US government.”
It shows that understanding IS there, and assistance is INTENTIONALLY not there. (As if that hadn’t already been shown.)
“For gun laws (example), a US person in Australia is not subject to the gun laws of the US but the laws of Australia.”
But surely, like in Japan, if the US person has some connection to a military base then the person isn’t subject to gun laws, murder laws, rape laws, or robbery laws of any country at all?
Same if the person is a diplomat or a CIA agent.
The Redmond-DOS correspondence trail linked at the start of the post is actively growing.
Earlier today it was 14 pages; now it’s 15.
To borrow a definition from the US IGAs, a lawful resident of (country X) is a (country X) person.
Thus, if Roger Federer were to become a lawful resident of the US, he would be a US resident US person, subject to the (tax) laws of the US. If Jack Townsend were to become a lawful resident of Switzerland (!), he would be a Swiss resident Swiss person, subject to the (tax) laws of Switzerland. Even in the US itself, if Bernie Sanders were to become a lawful resident of Alabama, he would be an Alabama resident Alabama person!
This is the substance of Blaze’s and Ann Frank’s amendment to the Canadian legislation, tabled if I remember, but not adopted.
It should be easy. No need for discussion of another state, country, passport, nationality or citizenship. Manageable exceptions can be made for cross border residents and workers (ex: Annemasse, France and Geneva, Switzerland; Hudson, Wisconsin and St Paul, Minnesota; and many others), but the principle is solid. Even the US agrees with at least their half of it!
@Shovel: Michelle Bernier-Toth is currently the Managing Director, Overseas Citizens Services, Bureau of Consular Affairs, Department of State, according to an internet search.
Bernier-Toth has been on the wrong side of an issue in the past, defending that which could not be defended. As is generally known and accepted, governmental officials can confiscate passports but private individuals and companies cannot. In 2006, she defended the common company practice in Saudi Arabia of seizing passports of foreign employees as quoted by a blogger: “Michelle Bernier-Toth, Office of American Citizens Service and Crisis Management, stated in a letter dated March 20, 2006, “Under Saudi law, employers typically hold foreign employees’ passports, and such employees may not depart the country without the employer’s permission.” ”
The blogger then wrote: “But while “typical,” the practice is not enshrined in Saudi Labor Law. Neither the Department of State nor the Embassy in Riyadh has been able to produce the relevant language from Saudi code legitimizing passport confiscation by private industry. This is not surprising, because the language does not exist.”
Michelle Bernier-Toth is listed as the Managing Director of the CA/ Overseas Citizens Services (CA/OCS). The head of CA/OCS is Karen L. Christensen, Deputy Assistant Secretary for Overseas Citizens Services. The head of Consular Affairs (CA) is Michele T. Bond, Assistant Secretary, according to the State Department telephone directory. Michele T. Bond’s supervisor is somewhere higher up in the hierarchy.
In general I think that this discussion may reinforce the U.S. claim to the legitimacy of citizenship-based and taxation and NOT detract from it.
Here is why:
1. The Master Nationality Rule comes from Article 4 of the “Convention on Certain Questions Relating to the Conflict of Nationality Law” See here: http://www.refworld.org/docid/3ae6b3b00.html
2. Some commentary (whether correct of incorrect) is here:
For the sake of discussion let’s agree that the effect of it is that a country can treat one of it’s citizens who is also a citizen of another country as solely a citizen of the first country while in the borders of the first country.
Okay, but that doesn’t mean that the second country can’t treat the person as a citizen of the second country …
3. But none of this matters anyway because (if I am not mistaken) the U.S. never signed the “Convention on Certain Questions Relating to the Conflict of Nationality Law”
4. This does NOT preclude the USA from recognizing a “master nationality PRINCIPLE” in certain circumstances (which it apparently does)
5. It does NOT follow from the fact that the USA recognizes a “master nationality PRINCIPLE” in certain circumstances that it must recognize the principle in ALL circumstances.
It seems to me that the most the Master Nationality Rule would do (even if applicable) would be to allow Canada to argue that U.S. citizens in Canada are Canadian citizens only and that therefore none of them could be “rounded up” under the FATCA. (But, we know that Canada believes that Canadian citizens who are also U.S. citizens are primarily U.S. citizens even though they are Canadian citizens resident in Canada.)
The best arguments against CBT are that, through the use of CBT (you are harboring one of of our tax evading citizens in your country), enforced by FATCA the United States (as represented by the Obama Democrats) is engaging in the raping and pillaging the economies of other nations. (The Democrats are the party of FATCA, CFC rules, PFIC enforcement, OVDI, the Clinton S. 877A Exit Tax, etc.)
Just out of curiosity what is Trump’s stance on all of this? I feel like the guy operates on a common sense mindset, so if someone wished to leave the US then who is the US to stop them or hassle them. At worst maybe he would say ‘good riddance’, which is fine by me.
Keith Redmond–Uncle Sam is a bully and always will be.
Why not aim your fire at the cheese-eating surrender monkeys who bow to the bully?
Also aim at governments of the world who think it, for their citizens resident in their countries, all a matter for the US government in the first instance. Or is this who you mean by “cheese-eating surrender monkeys” ?
Shovel: Thanks for pointing out that the correspondence available at the link in this post has been added to. As you said, “Go Keith!”
Presenting the U.S. position as “We have principles… when it’s convenient to us” sounds about right.
Re: “The best arguments against CBT are that, through the use of CBT (you are harboring one of our tax evading citizens in your country), enforced by FATCA the United States (as represented by the Obama Democrats) is engaging in the raping and pillaging the economies of other nations.”
That the U.S. “is engaging in the raping and pillaging the economies of other nations” doesn’t detract from CBT at all. From the U.S. point of view, which is where it counts, that’s a clinching argument in favour of CBT.
@JC– 80,000 French women were happy to give birth to German kids during the war, and now they are in bed with Uncle Sam. That’s really La Gloire de la France
Instead of/or in addition to
I favour this point:
Haven’t we heard this all before in regards to repeated US claims over the years against Russia (and others) about interfering into the internal affairs of other nations, such as Ukraine. Use of one’s word as part of a counter argument may add to the impression.
Le’t take it down to the policy level. Australia (for example) has a mandatory retirement scheme called superannuation – a tax reduced (not deferred) vehicle to save for retirement. Currently 9.5% of earnings are required to be put in by employers. In Australia, all financial planners say put more money in to super, another level is a Self Managed Super Fund (aka PFIC). However, the intervention by the US is such, with nonqualified pension fund designation, that I have advice to put as little money in as possible and to take it out as soon as possible (and miss the 0% tax pension phase).
The intent of Superannuation by the government is to help people save for retirement so that they would be less of / not be a burden on the government in their later years. But, Noooooooooo. The US comes in and interferes with that policy and incentives – thus intervention into the internal affairs of Australia.
So many other examples. FBAR impact on employment and partnership opportunities is another.
All sounds good. Yet I need to get the Australian Government off of the broken record of “it is all a matter for the US in the first instance.” They have not stated the expanded version of this: for Australian citizens resident in Australia it is all a matter for the US in the first instance. Wrong! Its intervention into internal affairs of Australia.
I have tried to Twitter the Australian Treasurer of his being blinded by US Exceptionalism, and that he respects US tax law more than he respects Australian sovereignty and citizenship. I even suggested that with such position that he should remove the Australian flag from his lapel.
JC – I think Self Managed Super Funds (SMSFs) are MUCH worse than PFICs – they are foreign grantor trusts that probably own PFICs! And moving anything out of an employer-based fund (to create an SMSF or to combine accounts) will almost certainly be a US taxable event.
Not only does US taxation of super (in any form) interfere with Australian policy – it increases the future burden on the AUSTRALIAN government because Age Pension is means tested (and if you pay more tax to the IRS now, you will have fewer assets after retirement)! The IRS collects now, causing Centrelink to pay more in the future!
The U.S. will never deal with this issue, unless there is some financial loss incurred for them. The U.S. Government has absolutely marginal to no interest in the well-being of its citizens, no matter where in the world they may be. It is an oligarchy and as such, its primary focus and time is spent on serving corporations and those that support and finance political campaigns and give financial support to programs. Individual citizens are of no importance and serve as cash cows, paying taxes, being obedient and in the case of expats or accidental U.S. persons, just additional sources of revenue to be fleeced and extorted and if they are disobedient or recalcitrant, then excessively fined, finances confiscated and punished as a deterrent to others who might dare do the same.
When will Americans get it through their heads, that you are no longer dealing with a system ‘Of the People, By the People and For the People’? That is why this FATCA nightmare has gone on, actually got worse and nothing will be done about it. After all the news and all the reports, even from within the government, about the harm that this is causing, still nothing is done, not even a promise to come up with some solutions, absolutely nothing. Nothing, simply because the individual in the U.S. system no longer is of any significance. Sadly, the typical U.S. person will go on naively believing that he comes from a democracy, one of the greatest in all history. If that were the case, do you honestly think that such an obvious, acknowledged harmful situation would be able to go on without any respite for over five years and actually have efforts made to make it even worse? I’ve come to the conclusion that U.S. persons actually deserve all of this, as they didn’t pull the alarm before it ever reached such a point. Now, I fear, it is too late, as the individual has been completely written out of the equation in U.S. policy and politics. Does anybody agree with that here?
“Sadly, the typical U.S. person will go on naively believing that he comes from a democracy”
He does. The typical U.S. person is old enough to have been born in a moderately democratic country, and that history is what he comes from.
“one of the greatest in all history.”
Moderately. It would have been nice if the national government had copied the idea of referendum from Switzerland, or from the practices of individual US states, or even the limited amount that Quebec and the UK and Northern Ireland had. But that’s all water under the bridge. Like Muhammad Ali, the greatest now is all history.
This is unacceptable. This all sounds like acquiescence to US citizenship being the master citizenship no matter which country one resides and no matter the citizenships one may have.
While the US may make its claims, other countries may make their claims (especially for those resident in their countries). Just because the US makes its claim it does not invalidate claims of other countries or position claims of other nations beneath US claims.
Re: the US did not sign: Convention on Certain Questions Relating to the Conflict of Nationality Law. Other nations did. If a person is a citizen of another nation living in that nation, then the US should not claim invalidation of the law of that country. To do so shows US disrespect for the sovereignty and laws of that nation and is nothing less than US intervention into the internal affairs of other countries!
@All I have been approached on Twitter:
When will Americans get it through their heads, that you are no longer dealing with a system ‘Of the People, By the People and For the People’? That is why this FATCA nightmare has gone on, actually got worse and nothing will be done about it.
I generally agree with @Marco above, that is why I believe supporting the lawsuits is important. There is the Canadian FATCA IGA Lawsuit and citizenshiptaxation has planted the seeds of a lawsuit against CBT in the US. Republicans Overseas have a lawsuit against FATCA/FBAR (we are waiting for their appeal).
To build up a support base for the lawsuits it is important to help grow the community and spread awareness of the injustices. Encourage others to visit the message boards of the Isaac Brock Society and to join Facebook Citizenship Taxation and American Expatriates Groups.
Commenting on articles and tweeting/liking on twitter are other ways. I believe that by engaging and commenting that I have become more effective at doing so. We never will convince a majority of US persons to support remedy of the injustices. We don’t have to. We just need a big enough community to make an impact and support legal action.
If you don’t want to use your existing online identity, then implement an identity of protest to do so.
This is a letter of mine directed at the Australian government in terms of the injustices. I think US persons in other countries may adapt and deploy in their own countries.
This started from a US person visiting their local MP (far easier than trying to meet with a US representative).
US persons in other countries may use the country specific posts section here at Brock.