Media and Blog Articles Open for Comments – Part 5 of 11 (Year 2018)

1,714 thoughts on “Media and Blog Articles Open for Comments – Part 5 of 11 (Year 2018)”

1. @plaxy

   re: “It follows (I assume) that the USG also cannot impose US citizenship on an individual born outside the US without the individual’s consent.”

   Not so: international law restrains countries from imposing their nationality upon a person other than at birth, adoption, or (formerly) marriage and changes of territory, without the consent of that person or his or her guardian. Compare Rev. Rul. 02-109 with 75-357 relating to the status of expatriated women whose nationality was restored by the Cable Act in 1924 https://groups.google.com/forum/#!topic/alt.lawyers/4jWlJxqSz7Y
   I doubt that the IRS sought to enforce its own interpretation against women who had married aliens and were living abroad. And note that the treaties with Spain and Denmark over territorial concessions provided for the right of option for at least European citizens, and the Rio Grande Treaty (1970) https://www.state.gov/documents/organization/125390.pdf goes a bit further: “The relocation of the international boundary and the transfer of portions of territory or any other provision of this Treaty shall not affect in any way: The legal status with respect to citizenship laws, of those persons who are present or former residents of the portions of territory transferred;”

   As a practical matter, since CRBAs cannot be issued for persons over age 18 (and are not required to be issued as a precondition for issuance of a passport to a child by the embassy
   https://ch.usembassy.gov/u-s-citizen-services/citizenship-services/birth/crba/ )
   there must be many persons born abroad, living abroad who, while they have a “claim to U.S. citizenship” it cannot be enforced against them. In many cases qualifying parental residence or presence is not obvious.

   There are other issues too: the matter of medically-assisted reproduction was the subject of a retroactive change in regulation (the FAM) in 2015
   https://fam.state.gov/fam/07fam/07fam1100apD.html and
   https://www.state.gov/documents/organization/244504.pdf (page 18)
   “Retroactive Application: The new policy will be retroactive. There will be cases in which children born abroad to a gestational and legal mother were previously denied a citizenship or immigration benefit under the prior interpretation. In such cases, parent(s) must submit a new application for their child, if they wish to apply for a passport, Consular Report of Birth Abroad (CRBA), or other document. The application must include sufficient evidence demonstrating that they meet all relevant statutory and regulatory requirements as well all appropriate fees.”

   The fact that a person, a subset of “accidental American” but born abroad, is in law a U.S. citizen does not mean that he or she will be treated as such and there is no penalty for failure to register the birth of a child as such. The “contracting out” by the USG of enforcing CBT through FATCA and IGAs is not foolproof. Even a suspicious DHS border guard can be countered with a denial or a suggestion of IVF or some nonsense although a bank clerk may still refuse to open an account for a minor child tainted by American parentage if the status of the parent is known.

   In any case the Bern embassy link goes on to say, “Remember, the burden of proof is on you. You must be able demonstrate to the consular officer’s satisfaction that you meet the physical presence [requirement].” (The last line on that page also has an unprofessional typo, but that’s another story.
   https://ch.usembassy.gov/u-s-citizen-services/citizenship-services/birth/physical-presence/ )

2. “Not so: international law restrains countries from imposing their nationality upon a person other than at birth, ”

   Yes since I wrote the comment you responded to, I realised that having a claim to US citizenship is not all that different from having US citizenship since either condition can result in the unlucky owner being a risky proposition as bank client or taxpayer.

   “there must be many persons born abroad, living abroad who, while they have a “claim to U.S. citizenship” it cannot be enforced against them.”

   No. Not exactly. But it seems to me that it does mean that technically they can’t not be a US citizen without first becoming one in order to be allowed to buy a CLN. Never mind, can’t be helped I guess.

3. the Bern embassy link goes on to say, “Remember, the burden of proof is on you. You must be able demonstrate to the consular officer’s satisfaction that you meet the physical presence [requirement]

   That’s not much help to those who need to prove that they’re not a US citizen. All they would have is a failed passport application – failed for lack of proof, not failed because the US says the person is not a citizen. The US refuses to say that except by CLN. Which not everyone can get.

4. @plaxy

   The USG cannot assert its nationality against a person based upon suspicion. And as a matter of practice it doesn’t look to do so. Generally the child of an Accidental American, unless that parent is married to another American citizen, is unlikely to satisfy the parental residence or presence rules such as they are.

   It’s hard to feel sorry for those suckered in by compliance condors who didn’t seek advice from an immigration and nationality lawyer first.

5. “The USG cannot assert its nationality against a person based upon suspicion. And as a matter of practice it doesn’t look to do so. ”

   I really don’t know how you can say that. The USG has made the entire world terrified lest their fellow shareholder, or their employee, or their accountholder, might secretly be contaminated with US citizenship.

6. “It’s hard to feel sorry for those suckered in by compliance condors who didn’t seek advice from an immigration and nationality lawyer first.”

   That is a strange thing to say. I don’t see how it relates to anything I’ve said.

7. (slapping forehead)

   “seek advice from an immigration and nationality lawyer first.”

   Would you happen to be an immigration and nationality lawyer?

8. I have never practised law for money. I was an academic. Long retired. It’s true I was cruel to those targeted by evil CPAs and tax lawyers. But those guys make big bucks and I live on a pension and the memory of my PhD studies,

9. “I have never practised law for money.”

   Just as well.

10. @plaxy

    You needn’t be insulting. This forum has highlighted a couple of my published articles.

    But I am gone for now. I don’t need insults when I work for free.

11. Minor note, but over at the Tax Connections blog there was a piece by Anthony Parent (IRS Medic) called something like “What happens if you don’t file US taxes?” or similar. To which the answer is “not much”. Anyway, a handful of folks including myself made comments to that effect and, lo, the article has now vanished.

12. “You needn’t be insulting.”

    And neither need you. US citizens who were suddenly hit by FATCA and the news that the US was calling on the world to treat them as tax cheats, are not suckers for having tried to find advice. It’s not amusing to talk about being cruel to them.

    You don’t seem to have much understanding of what it’s like for USCs living under FATCA.

    “But I am gone for now.”

    So long.

13. IMHO ,The point of seeing a citzenship lawyer before seeing a tax lawyer is a very valid and interesting route to consider especially if one has an unexercised claim to US citzenship. Firstly,establishing where the IRS can and can not claim someone having US citzenships should be considered by some.There is a line in the sand surely.

14. For some accidentals, denying US citizenship is the first and best line of defence. If you can persuade banks that you are not a US citizen (as in “yes I was born there but my father was a diplomat so I’m not entitled to citizenship” etc.) then you’ve won the battle, if not the war, and need not worry about FATCA reporting or banking restrictions, let alone compliance.

    For anyone in doubt who can’t figure it out from the published rules, a consultation to determine possible US citizenship should absolutely precede any consideration of tax issues. And a lawyer’s letter stating that “to the best of my knowledge my client is not a US citizen” might be enough to convince FIs, which ultimately is all that matters.

15. “Firstly,establishing where the IRS can and can not claim someone having US citzenships should be considered by some.There is a line in the sand surely.”

    They don’t do the claiming themselves. They just make banks and businesses afraid they might miss one (USC).

16. The factors determining citizenship seem to be pretty clearly defined; there’s even a chart on the UCSIS pages.

    But there seems to be no way to prove you’re not one, except by renouncing.

17. Found it:

    https://www.uscis.gov/policymanual/HTML/PolicyManual-Appendix-Nationality3.html

    I agree that for most people born outside the US to US parent(s), US citizenship probably isn’t usually a problem. But there are situations in which it can be either a fairly trivial problem (such as the child of US parents who wants to travel to the US on a non-US passport, and runs into ESTA questions about parents’ citizenship) and some very serious.

18. ” The factors determining citizenship seem to be pretty clearly defined; there’s even a chart on the UCSIS pages.

    But there seems to be no way to prove you’re not one, except by renouncing.”

    Thank for the info. I guess that JR can now retire as a citzenship lawyer since all I have to do is read a table.

    Unfortunately ,life is never as simple as you think ,if born abroad. As per the 1994 INTCA,there may be chidren of american mothers, who may assume that they are american but may not be terchnically ,depending on whether the mother exercised the claim or even knew about such claim.
    For such reasons amongs others , I think that the IRS treads slowly,although the foreign banks do not.

19. I don’t think that the only way to prove that you are not an american is by renouncing. There are citzenship laws and citzenship lawyers just as there tax laws and lawyers.

20. “life is never as simple as you think ”

    Certainly isn’t.

    “there may be chidren of american mothers, who may assume that they are american but may not be terchnically ,depending on whether the mother exercised the claim or even knew about such claim.”

    It’s the possibility of entitlement to US citizenship (with no way to disprove entitlement) that causes the problem in some cases.

    “ I guess that JR can now retire as a citzenship lawyer since all I have to do is read a table.”

    Sorry, I don’t know what that means.

21. “I don’t think that the only way to prove that you are not an american is by renouncing. “

    True. I should have said renouncing or relinquishing (though I guess renouncing is actually just one of several ways of relinquishing).

    I will be glad if it turns out there’s a way to prove that an individual has no claim to US citizenship. So far, it seems not.

22. @plaxy
    “ I guess that JR can now retire as a citzenship lawyer since all I have to do is read a table.”
    “Sorry, I don’t know what that means.”

    JR is probably citizenship lawyer John Richardson. I trust you know of him.

23. Shovel: I don’t see what point Robert Ross intended. Does it matter?

24. The official (i.e. State Department declared) way to get a determination of entitlement to U.S. citizenship is to apply for a passport and have it accepted or denied.

    But in law that is not definitive because you might have concealed facts. Or there might be an error on the part of the consular officer (the Hizam case). American citizenship is not infrequently cancelled on grounds of mistake or fraud, even decades after it was attributed — more often in naturalisation cases than birth citizenship, but Hizam was a case of the latter, and tragic too since he could have naturalised as of right until age 18, and he lived in The Bronx. (The State Dept. volunteered to the judge to seek a private Act of Congress for him. I found nothing online that suggested this happened, but Hizam still is in the Bronx managing his shop.)

    Since it is part of American law that birth abroad creates a rebuttable presumption of alieange, the fact that one might in fact be entitled to citizenship is usually beside the point. The IRS has no status to declare a person a citizen who, born abroad, has never availed him/herself of an attribute of citizenship. If an allegation (a whistleblower anticipating s reward) turns you in to the IRS the first point that will be looked at is: does this person born abroad and alleged to have American parentage have any assets subject to levy or lien? The various embassy sites on registering births abroad make clear that the burden of proof is on the claimant of citizenship. The older that claimant is, the less likely the claim will be accepted, the more so because many of the rights to claim expire at age 18.

    “Citizenship Solutions” and a very few other affordable law firms with integrity can put doubtful cases into perspective (while preserving professional privilege (secrecy)). Because what matters is not only whether one has the “right” to citizenship but whether policy and practice, and regulations (secondary law) of the United States put the person at any risk. I recall leaving a lecture with a wealthy age 75+ dual UK/US national who had gone to the lecture for that purpose but had been so frightened by a prior conversation with one of the Big 4 accounting firms that despite her age, despite the facts all her assets were in England and her heirs not U.S. Persons, she wanted to “do what was right”. As a noncompliant volunteer into the system I told her it would cost her dearly: OVDP can be hugely expensive and have unexpected consequences — unexpected even to the accountants and lawyers advising, as Dewees found out. But I have no malpractice insurance and I charge nothing, so my comments have no value. I try to substantiate what I say with citations or links, but it matters not. I don’t often post here and will not see any replies, but I think restating what I have said above, and have said before, is important. Lives have been ruined by attempts at compliance. If you look at the recent bibliography of FBAR cases you will see several suicides, These were of wealthy homelander tax evaders: one wonders why they didn’t abscond (that tolls the statute of limitations, but so what: a new nationality and passport can always be bought somewhere). But people fear expatriating and delay renunciation. And Harmon Wilfred and the late Garry Davis found that statelessness isn’t necessarily such a bad thing. In the end every case depends on its own facts. But one does not have to volunteer information against interest in relation to citizenship: only in matters of accounting for tax is there punishment if you are found out. Were you born to married parents? Were you the product of assisted reproduction? Did your parents live in the USA at the pertinent ages? Fraudulent procurement of citizenship is a crime. Refusal to admit facts — much less to research what those facts are — that would lead to making you a U.S. Person is something else again.

    Most posters here and elsewhere have an agenda. I really don’t. The points I make are few: (1) don’t assume you are an Amcit just because you think you are; (2) don’t go into any voluntary disclosure without the greatest care and preparation, and for good reason besides; (3) in renunciation cases think about the consequences of “covered expatriate” status and how (and if) that can be avoided; (4) don’t forget that bankruptcy (foreign or American) can help in certain cases — the IRS will almost certainly not appear or claim in a foreign bankruptcy and even if your discharge is only valid abroad that may be enough (some penalties cannot be discharged in a domestic bankruptcy); (5) think of the children: I have known of a couple of strategic divorces during pregnancy; I know of numerous infants born abroad whose birth was never registered with a U.S. consular office (see above on that).

    The USG has no morality on this subject. Ask the Tohono O’odham native Americans; ask a person born in an impoverished border shantytown in Texas with only a midwife present. In both cases the State Department and DHS first response is to deny U.S. citizenship.

    I am a retired lawyer with 22 years spent at universities, half of that spent on this subject, and publications in peer-reviewed law journals. I find it funny when regulars on forums such as this get angry or take issue or don’t agree. In a professional venue, disagreement would be supported with citations but not on these lay forums. Funny, but sad in the sense that readers are likely to get confused. And the repetition does get tiresome, which is why I rarely look at these forums but follow ABA listserv professional forums instead. And won’t see any replies.

25. “I find it funny when regulars on forums such as this get angry or take issue or don’t agree. In a professional venue, disagreement would be supported with citations but not on these lay forums. ”

    The remark of mine that annoyed you wasn’t a disagreement over substance, it was my response to your description of USCs as “suckers” for being badly advised. (http://isaacbrocksociety.ca/media-and-blog-articles-open-for-comment-part-5-of-5/comment-page-35/#comment-8253430)

    I don’t think that’s helpful. It’s the compliance condors who helped the US to do these things to innocent USCs, many of whom had no idea that US tax law required them to file US tax returns even though not living in the US. How were they supposed to understand that compliance wasn’t necessary and the compliance condors were just taking them for a ride while laughing at them as they went out the door? Mocking them as “suckers” seems to me to show a deplorable lack of empathy.

    Which is fortunately not the case on this “lay forum,” where people with FATCA/CBT problems are generally met with sympathy and understanding.

Comments are closed.