Renunciation and Relinquishment of United States Citizenship: Discussion thread (Ask your questions) Part Two
Ask your questions about Renunciation and Relinquishment of United States Citizenship and Certificates of Loss of Nationality.
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NB: This discussion is a continuation of an older discussion that became too large for our software to handle well. See Renunciation and Relinquishment of United States Citizenship: Discussion thread (Ask your questions) Part One
I just found the content of a 2007 US house bill making voting in a foreign country an expatriating act. Voting as an expatriating act. They didn’t make it retroactive but I think it was passed? Is this useful???
H.R.4192 OVERDUE Immigration Reform Act of 2007 (Introduced in House – IH)
SEC. 204. MAKING VOTING IN FOREIGN ELECTION A BASIS FOR AUTOMATIC LOSS OF CITIZENSHIP.
(a) In General- Section 349(a) of the Immigration and Nationality Act (8 U.S.C. 1481(a)) is amended–
(1) by striking the period at the end of paragraph (7) and inserting `; or’; and
(2) by adding at the end the following new paragraph:
`(8) voting in an election in a foreign country.’.
(b) Effective Date- The amendments made by subsection (a) shall apply to voting that occurs after the date of the enactment of this Act.
@ Cheryl
HR 4192
I could be wrong, but can’t find anything stating this was passed…
In this link it looks like it did not have co-sponsors and was referred to a subcommittee
http://thomas.loc.gov/cgi-bin/bdquery/z?d110:h.r.04192:
After all these years, it is interesting that someone thinks Voting should once again constitute Expatriating Act like it was in the 1970’s.
I thought I would post this to give people something to think about…(I am not asking for answers…I know mine)
Ask yourselves why would “but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the acts or acts committed or performed were not done voluntarily”
be included IF such acts were not VOLUNTARY and with intent to lose citizenship?
Ask yourselves why would the word ACT be repeated as ACTS ? if there was only 1 Act of Expatriation that determined loss of citizenship?
Otherwise, how could there be more than one as indicated by ACTS or ACTS committed ?
I would argue that it was an escape clause for someone wanting to retain US Citizenship, such as “ I filed for a US passport after the fact because I thought I was still a US Citizen, I voted in the US because I thought I was still a US Citizen, I travelled using my US Passport, I filed US taxes…etc…”
Perspective…
I often walk the neighbours dog down to the bus-stop to meet my wife after work (exercise and outdoors and doing the elderly a favour)
As I sit waiting patiently at the T intersection slopping down towards a highway, I often see this perilous exercise daily…people trying to make a left on the light with oncoming traffic coming downhill…
Sure enough, some downhill cars slow down and stop on a yellow…some disregard it and don’t, and some accelerate downhill into it ignoring the obvious…(some even think they can take a right on the red without stopping for the turning intersection car)…
I guess everyone sees it from a different perspective…but I keep my Blackberry handy in case a 911 and photo are required…so far lucky…
What is the meaning of YELLOW?…. I remember the Italian comment from “Under the Tuscan Sun” :
Frances: Do traffic lights mean anythng around here?
Marcello: Sure. Green light – avanti, avanti. Yellow light – decoration.
Frances: What about red light?
Marcello: Just a suggestion.
What do you see?
http://www.futilitycloset.com/wp-content/uploads/2006/06/2006-06-24-kanizsa-triangle.jpg
Do not look at the hint in the next posting
XOUDNEthereXOUDNE
XOUDNEisXOUDNE
XOUDNEnoXOUDNE
XOUDNEtriangleXOUDNE
XOUDNEnotXOUDNE
XOUDNEblackXOUDNE
XOUDNEnorXOUDNE
XOUDNEwhiteXOUDNE
XOUDNEmaybeXOUDNE
XOUDNEpacmenXOUDNE
XOUDNEbutXOUDNE
XOUDNEyouXOUDNE
can’t ignore them now can you?
@ Benedict
I didn’t look at your hint and my immediate impression was three pacman’s eating Israel.
EM…
You need serious psychological help…. 🙂
Just kidding…that had me roaring in laughter…you made my day…
Thank You
and congrats to you and Mr Em by the way…
@ Benedict
RE: that help I need. I know it but I’m DIY in that department too.
Thanks for the congrats. Today my husband is coping with the looming final filings by going boating. I’m just doing my usual Brocking.
For those who failed to understand the significance of that little experiment…
refer to Martin Seligman’s Learned Optimism
Learned helplessness occurs when an animal is repeatedly subjected to an aversive stimulus that it cannot escape. Eventually, the animal will stop trying to avoid the stimulus and behave as if it is utterly helpless to change the situation. Even when opportunities to escape are presented, this learned helplessness will prevent any action.
Could you avoid seeing the triangles?
@ Benedict
Well that’s a coinky-dink. Yesterday I was trying to think up a word search to find that experiment which I’d read about just recently somewhere on the internets but couldn’t remember where. Seligman is the key word. Thanks. Anyway it was interesting and yet disturbing to read about the poor dogs they used in the experiment. There are two key elements of torture:
#1 the inability to escape the punishment
#2 the unpredictability of when the punishment will be applied
Now I wonder what US agency, other than the CIA, those things could be associated with?
(BTW, I thought my impression was quite optimistic.)
1) I thought I saw on the Isaac Brock Society website somewhere a HISTORY of US passport application form changes. It detailed something like in 2004 the changes to the form were, in 2006 the changes to the form were, in 2010 the changes to the form were…. Does anyone remember where that information is available? Can you post the link? The question is whether the form included a clear affirmation of intent to retain US citizenship.
2) One view is that RENEWING a US passport is automatic rejection of an application for prior relinquishment of US citizenship. Another view is that there can be the intent that the US passport is merely a travel document for entry into the US. People with US birthplaces on their non-US passports were often advised by US Customs to use their US passports to enter the US. Border control advice may have gotten more sophisticated now, but we’re looking at post 9/11/2001 to 2009. My question is: is use of US passport for sole purpose to enter the US and renewal of US passport (for same purpose) automatic rejection of an application for prior relinquishment? If there are some sources you could highlight here (links), that would be great. Some people who were only following US Customs instructions to use the US passport to enter the US, didn’t imbue it with any more meaning than as a travel document, and the preponderance of evidence of their living a normal life in their new non-US home country for many years is that they are not US citizens in any meaningful sense. Renewing a passport is like .00001% of your busy modern life compared to the 99.99999% of your life that has been for many years just like a citizen of your new home country.
Thanks.
@ PH27,
I don’t recall seeing a post/comment giving the history of US passport application form changes. I’d be very interested to see it, too, and/or anything anyone has to say about passport renewal applications prior to 2010.
I can only think of one comment on this, which BC Doc made on May 16th about renewing a passport in 2010.
http://isaacbrocksociety.ca/consulate2/comment-page-23/#comment-1769004
The current passport renewal form, dated 2013, sounds pretty similar to what BC Doc described. I don’t know what it said prior to BC Doc’s report about 2010, though.
Page 4 of the passport renewal application mentions the potentially relinquishing acts which are listed in s. 349(a) of the Immigration and Nationalities Act, and tells the person to attach a supplementary explanatory statement if they have performed any of them.
http://www.state.gov/documents/organization/212241.pdf
@ PH27,
Re your second question, it’s not an automatic disqualifier, but there doesn’t appear to be a cut-and-dried answer. Depends on the circumstances and loss of citizenship determinations are to be made on the balance of probabilties (7 FAM 1211(d)). But although that’s a relatively low burden of proof for the person, it still gives DoS room in their evaluation. Some people who have used a US passport and/or applied for a US passport after their relinquishing act, for reasons such as bullying or misinformation/misunderstanding, have received CLNs based on their relinquishing act, but some haven’t.
Here are links to passport-use-after-relinquishing-act reports.
Halifax
Baird: 2012/10/28
Baird: 2012/12/17
Relinquishment-based CLN received
Vancouver
David: 2012/12/20
Relinquishment-based CLN received
Ghost66 2014/04/20
Told could only renounce
BC Doc: 2014.05.16
Told could only renounce
Toronto
Muy Linda: 2014.04.01
Told could only renounce
Canada
2013. Person reported receiving positive recommendation but has not yet received CLN. (CLNs to Canada tend to take a long time.)
Jerusalem
2013. BenPloni in Consulate Report Directory, page 136
After lengthy exchanges between BenPloni, the consulate and DC, was told could only renounce.
Consulate in Western Hemisphere, but not in Canada.
2013. Person did not post publicly. They had been given a very hard time entering the US on non-US passport, so got a US passport.
Relinquishment-based CLN received.
Some people who were told that passport use/renewal disqualified them having relinquished chose to renounce, some chose to do nothing.
Facts: Born in US of Canadian Parents (father getting his PhD) in 59 and returned to Canada in 61 and regsitered is a birth abroad. Have never held a US passport, lived in the Us or have assets in the US. I do work for a US firm in a global role, but nonetheless go to the US for head office meetings, conferences and sometimes on vacation.
I never renounced my Amercian citizenship as conflicting information in the past made me believe that I wasn’t an American citizen even though my Canadian passport clearly shows I was born in the US.
Recently told by my bank that they will need to release my name to the IRS under the recent rules (July 1st) and now worried about being fined by IRS for non-filing of income tax in the US. I was told that I could probably retroactively file, but would need to keep on filing for rest of life, pay $10 – $15,000 for filing and also have serious questions about the tax status of the Registered Savings Plan which I have contributed into.
I’m not sure if i’m technically American or not, and if so what can I do to get away from the long reach of the IRS. I could renounce American citizenship but the non-filing would still have to be resolved.
Signed confused and probably a little angry
Bill, you are rightly confused but wrongly a little angry. IMHO, I would hope you would be a lot angry. You had no choice who you were born to or where you were born that you must automatically be declared an “Accidental US Citizen”. You are among the persons we speak for in our Charter Challenge — as US law now takes precedence over Canadian law for *so-called* US Persons in Canada. Starting July 1, 2014, Canada Day, we become second-class Canadians.
As I communicated to my personal contacts yesterday:
@Bill,
How does your bank know you are a ‘US person’? Is there any possibility you might consider switching banks now before July 1 to minimize risk of being reported to the IRS? Even a transfer to a new financial institution post July 1 might be a good idea. You don’t have to tell the new FFI anything. Even better, seek out a small credit union (under 175 mill assets) to switch to as they are supposedly ‘deemed compliant’ regarding FATCA.
If you are going to stick with your current bank, and they report you, try not to panic because Finance Canada (Jim Flaherty) said CRA will not collect on behalf of the IRS for taxes or penalties incurred by Canadians while they were Canadians. So, worst case, you will get a penalty notice.
However, who knows what evil will transpire down the road, so if I was in your shoes (knowing what little I know from what you wrote), I would be getting out of the bank that knows I am a ‘US person’ pronto.
@Bill,
Just to clarify, I am not recommending what to do regarding your ‘non-compliant US person’ status, but am thinking that if you move your assets to a ‘safe’ (relatively speaking) place for now, it will give you some time to figure out how you want to deal with the problem.
The amnesty programs continue to evolve (note that changes to the streamlined program were just announced), so there is no set deadline or timeline to ‘come out’, but ideally, IF you are going to be discovered by the IRS, it should be on YOUR initiative rather than your bank’s.
@Bill,
I’d like to expand on the questions that WhiteKat asked.
How does your bank know you are a ‘US person’?
What bank is this?
Is it a regular bank like RBC, TD, or an “investment” arm such as RBC Direct, or TD-Waterhouse?
Could you tell if your local branch contacted you, or was it the national head office?
Do you have more than $50,000 total in that bank, NOT including registered accounts (RRSP, etc)?
Do you have more than $1 million there (only if you care to answer)?
It sounds like you have dual a dual-citizen since birth, even though dual-citizenship didn’t officially exist until the 70’s and 80’s. The only success such people have had in claiming a past relinquishment which gets you out of filing any taxes is if you worked for some level of government, municipal, provincial or federal. Did you?
If you file, you do _not_ have to file to the US forever. Once you have 5 years filed you can renounce.
As mentioned, the Streamlined procedure will allow you to file without penalty, just taxes and interest. Note that some very knowledgeable people don’t trust the IRS and their programs. My guess is that the program is safe if you owe no taxes. It’s certainly scarier if you do.
There are horrible US tax consequences if you have mutual funds outside of registered plans, trusts, and if you’ve sold you principal residence and your share of the capital gain was over $250,000.
Another major issue is if your net worth is over $2 million. That includes house value and even the fair market value (a complicated actuarial calculation based on your age, etc) of any company pensions you might have (not including CPP, OAS) or if you pay more than about $155,000 in taxes each year. If so, you’d be a “covered expat”. You do NOT want to be a covered expat. If you are, I don’t know what to tell you except some accountants have said they can re-arrange your finances (legally, of course) to get you under the threshold. It will only cost you $30,000 and up for their services.
Something I’ve been wondering about. In both the US and Canada, I believe you cannot do a “voluntary” come clean filing without penalty if the CRA or IRS has already initiated an investigation into your non-filing. So, what does this mean with the IRS and FATCA? If the IRS is notified about you through FATCA, is there some point at which you can no longer enter the Streamlined Filing Procedure???
It seems clear to me that you haven’t done much reading here. Several people have posted what I’ve just written many times. I suggest you go back in this thread at least 6 months, if not a year, and read it all. Also, look at the sidebar on the right for threads to read.
I’ll follow this with another post about banks and money.
@ Bill
I am also in your situation. Read, read, read. Lots of information here. Curious about your bank as well. None of us know just how the banks will be reacting with the new FATCA being implemented.
@WhatAmI
Are dual born citizens subject to covered expat status? Am I getting confused with exit tax on renouncing?
I am sure that I read that you cannot use streamlined if you have penalties assessed but that may have been on the questionaire that has been recently scrapped.
@WhatAmI & Bill, no he wouldn’t be a covered expat. Providing he does the necessary filing to be able to file the 8854 form, he meets the exception requirements for dual citizens.
“Exception for dual-citizens and certain minors.
Dual-citizens and certain minors (defined next) will not be treated as covered expatriates (and therefore will not be subject to the expatriation tax) solely because one or both of the statements in paragraph (1) or (2) above (under Who Must File) applies. However, these individuals will still be treated as covered expatriates unless they file Form 8854 and certify that they have complied with all federal tax obligations for the 5 tax years preceding the date of expatriation as required in paragraph (3) above (under Who Must File).
Certain dual-citizens.
You may qualify for the exception described above if you meet both of the following requirements.
• You became at birth a U.S. citizen and a citizen of another country and you continue to be a citizen of, and are taxed as a resident of, that other country.
• You were a resident of the United States for not more than 10 years during the 15-tax-year period ending with the tax year during which the expatriation occurred. For the purpose of determining U.S. residency, use the substantial presence test described in chapter 1 of Pub. 519.”
http://www.irs.gov/instructions/i8854/ar01.html#d0e535
Bill, you can investigate entering the Streamlined program if that would apply to you. Although it needs 3 years of tax returns and 6 years of FBAR’s, there’s no reason why you can’t add the additional 2 years of returns to meet the 8854 filing requirements. You can do the tax side before you renounce or after, it doesn’t matter and won’t affect your renunciation if you do that first. Your main problem could be if you don’t have a US Social Security Number (SSN) for filing US taxes. It seems to be very complicated to get one if you don’t have it.
Go to the IRS website http://www.irs.gov and search for Americans Abroad and start your research on what exactly you need to do. Don’t rush into anything. It’s a knee jerk reaction to want to get this all over and done with, but making sure you have the right plan to suit your particular situation is vital so NO RUSHING!
Can someone please try and sort out this problem of not seeing posts on the blogs? It’s driving me crazy.
Geeze Louise, my bad, of course Bill would not have to worry about the 2 tests for net worth and tax bills since he is dual since birth. The same as I am. Sorry, no idea where my head was at this morning!
I contacted 8 credit unions who only allow Canadian residents as clients to ask if they are deemed-compliant non-reporting Canadian Financial Institutions under FATCA. Such FFIs are not limited to $175 million is size (I did not try to find any small credit unions). I haven’t heard back from all of them yet.
Two responded that they are exempt: Implicity Financial and Maxa Financial.
I did not ask any of them if they will be using the $50,000 exemption threshold for FATCA reporting, but Hubert Financial came back with this interesting information:
Our reporting requirements are:
•May 1, 2015: First reporting – for year-end 2014 balances (only for accounts > $1 Million at June 30, 2014 and new accounts opened July to December 2014)
•May 1, 2016: Second reporting – for year-end 2015 balances (all accounts > $50 thousand USD at June 30, 2015; for entity accounts, such as businesses, corporations and trusts this threshold is $250,000 USD)
The above suggests that they are using the $50K threshold for reporting.
Bill. Slow down. You have been Canadian from birth. You were born in the US but you can honestly tell your bank you are not American. At that time (’61) dual citizenship was distinctly frowned upon by the state dept. . If you had applied for a US passport at that time, you would have been denied on the grounds that you had relinquished by behaving as a Canadian rather than as an American. Of course the rules changed but you didn’t know that.
According to the IGA we signed, if your bank finds a US place of birth in their electronic search, (how on earth did they find it?- i’m surprised they are going over existing accounts) they don’t have to treat the account as reportable if you self certify on a W8 Ben that you are not American, you show a non US government ID and you have a reasonable explanation why you don’t have a CLN. —CLNs were almost unheard of at that time. Loss of citizenship was automatic. Registered accounts and those under 50k are not reportable.
If this isn’t good enough for your bank, you need a new bank. Banks are not supposed toast place pf birth and a driver’s licence is good enough for ID.
@pacifica777
Thank you for your comments!
This time, tried a web search on form DS-82, and can still find some older dated versions online. Here they are:
03-2002
http://famguardian.org/TaxFreedom/Forms/Emancipation/DS-082-Modified.pdf
05-2006
http://www.hudsoncountyclerk.org/pdfforms/ds-0082.pdf
02-2008
http://www.masstpc.org/pubs/gendermarker/DS82.pdf
08-2013
http://www.state.gov/documents/organization/212241.pdf
These forms raise some questions.
It seems DS-82s have this statement about “ACTS AND CONDITIONS”: “I have not, since acquiring United States citizenship, been naturalized as a citizen of a foreign state; taken an oath or made an affirmation or other formal declaration of allegiance to a foreign state;”. Those who didn’t read the document carefully and do have a non-US citizenship but didn’t notice this text and therefore didn’t mention their oath of allegiance to their new country would have falsely obtained renewal of their US Passport. Now, what does that mean/imply?
One view could be that it means the passport renewal was obtained under false pretences and is invalid (and a US crime has been committed this way by a passport renewal application that is false in not mentioning the Act of having taken non-US nationality, though inadvertently false). Could perhaps also be interpreted that people see this just as a travel document, and therefore don’t read it carefully?
Believe it or not, the DS-82 OMB No. 1405-0020 dated “Expires: 03/31/2005” at the point of signature does not contain an affirmation of US citizenship. It only says “I have not, since acquiring U.S.A. National Citizenship, performed any of the acts….”
However, DS-82 05-2006 and onward states “I declare under penalty of perjury that I am a United States citizen (or non-citizen national) and have not, since acquiring United State citizenship (or U.S. nationality), performed any of the acts”. This is a clear written affirmation of citizenship, but is the affirmation nullified by the false statement of having not performed the act of obtaining non-US citizenship? Also, this person would have never declared or addressed ‘dual citizen’ status.
The DS-82s say “All statements and documents submitted are subject to verification.” Obviously the non-mention of the oath of allegiance elsewhere would be hard to verify, but still it wasn’t verified by them. As the renewal is done by mail or online, the US does not interview or question the applicant, thereby clearly alerting the applicant to the issue.
A harsh interpretation of the 2006 and onward DS-82 is that it is clearly signing a statement of US citizenship, even if you claim it is just a travel document and even if another part of the declaration is false (the part about not performed an act of obtaining non-US citizenship). Continuing the harsh interpretation, it could be alleged that you hid your non-US citizenship in order to more easily renew your passport and retain your US citizenship.