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
@PatriciaSpink, your husband may decide to seek further legal advice. Brockers and I believe rightly say learn everything you can first.
But if he wants more information…..
Do NOT go to an accountant on either side of the border. There are limits with client confidentiality.
Do NOT go to a lawyer south of the border. There is client confidentiality but it will be US Centric.
A lawyer MUST be a specialist in this area.
John Richardson would be a good pick and could issue your husband a legal opinion as to his status.
But THE most important thing is that your husband must never ever admit anything to do with the United States!! Literally even if he is asked for place of birth, he should never answer that and strictly insist he is a Canadian Citizen and that such questioning is racist. This is also the truth because he insists he relinquished and has no trappings of USness.
Hi Guys,
I went to Westpac bank today to apply for a credit card (New Zealand). You wouldn’t believe the first question they asked me. “Are you a US Citizen?”. Felt good to say “no”. Amazing that the first question a baks asks in New Zealand is “Are you a US citizen”. Expats are officially toxic.
The question is when are they going to start asking people to prove they are not a U.S. citizen. I could see them having to go that way.
Note: For a reason I cannot fathom, the following inquiry was posted earlier on another thread of this blog. It should have been posted here in the first place. My apologies.
My inquiry:
After reading and re-reading numerous comments on this blog, plus the sources listed ib the right hand column of the blog, I still don’t have a clear picture concerning the following situation.
(1) Assume a US-born person who has been living in Canada since 1969, married a Canadian spouse, worked and had a home in Canada since 1969, and finally acquired Canadian citizenship in 1993 with the intention to relinquish US citizenship.
(2) This “US Person” assumed that by so doing, the US citizenship is relinquished automatically, and that no other formalities were required.
(3) Consequently, this “US Person” didn’t use a US passport or file tax returns after swearing allegiance to Her Majesty. All traveling was done with a Canadian passport.
(4) A few years ago, when panic spread in the press and among expats about the hunt for “US Persons”, the person in question began filing tax returns with the intention of answering the five-year filing requirement needed for a formal relinquishing and obtaining the coveted CLN.
(5) Now assume that this “US Person” files for an appointment with a US embassy/consulate in order to obtain this CLN. On the basis of the foregoing info, can the US authorities refuse to issue a CLN? If they do refuse, can the said “US Person” ask to renounce and pay the $2000+ ransom? On the other hand, if they are willing to grant a CLN, do they do so on the spot or is there a long, convoluted process with a long lag time as reported in this blog and a possibility that a refusal will be made at the last minute?
Can anyone please enlighten me on these points?
Thank you.
@Atticus
How do you prove a negative?
@Patricia Spink, should your husband choose to go to a consulate to inform them of his relinquishment and get a backdated CLN, please note he can do so at any US consulate in the world. He is not required to do so in his country of residence. There was someone recently that called consulates in several countries for much quicker appointments to beat the fee increase to renounce. Perhaps it could be a holiday.
dt804a. Unfortunately there isn’t a certain answer. It is indeed regrettable that this person filed tax returns. There was no need to.
The US vice consuls are supposed to consider whether or not someone relinquished long ago on the ‘balance of probabilities’. As to what that actually means, your guess is as good as mine. Everything in your friends story says ‘yes he relinquished’ except that he began filing tax returns. Doubly unfortunate.
If the vice consul were to turn him down, he could insist that his application for a CLN be sent to Washington anyway. The process appears to be taking over a year. Or he could renounce, pay the fee, and then choose whether or not to file final tax returns and 8854. He/she always has the right to renounce.
P.S. There was and is no requirement to file 5 years of tax returns before renouncing. For those who relinquished before 2004 there was and is no requirement to file before or after obtaining a CLN.
@ Duke
Thank you so much. I appreciate the info you provided.
@ dt804a,
I agree with Duke that it’s uncertain when one has an indicator of US citizenship on the 4079. A single indicator can be fatal; however, the balance of probabilities is a relatively low burden of proof, so it’s not necessarily so, and the file is supposed to be evaluated in its entirety.
At any rate, in particular regarding taxes, I’m aware of four people who filed taxes when news of this first came out, years after they believed they’d relinquished their citizenship, because they were confused or panicked or believed they were required to, and they did receive CLNs based on the date of the relinquishing act in spite of having filed taxes. So, so far it doesn’t seem to necessarily negate a relinquishment.
Two of the people who filed taxes commented on Brock. I put some excerpts here, but also the links to their full comments — if the links go to the wrong place (they sometimes do), you can scroll to date and time.
@Pacifica
I’m grateful to you for taking out time to respond. I’m just sorry that the situation is a crapshoot.
To the question of “Do you file US income tax returns?” on form 4979, it might be useful to answer “Yes, because I mistakenly believed that I was required to do so, even though I had fully intended to relinquish my US citizenship at the time of my naturalisation to Canada and believed in full faith that I was no longer a US citizen.” Or something similar.
Filing US taxes out of fear of repercussion, reliance on false information, or otherwise under duresss does not negate the intention to relinquish that a person had at the time of naturalisation. The naturalization was performed with purpose and intent to relinquish; the taxes were mistakenly filed under duress due to false information.
@ToykoRose, I agree, but that could also prompt the question “If you believed you were no longer American why suddenly start filing more than 10 years after you gained Canadian citizenship? If you were no longer American you have nothing to fear over FATCA.”
@dt804a, if the embassy staff refuse your relinquishment you have two choices. You can either a) say you will renounce and pay the fee or b) insist that they send your file on to Washington instead in hopes that the State Dept will be more sympathetic. As others have said the decision should be based on a balance, but consul staff have their off days like everyone else so they could decide just on the one thing that condemns you. Note that if you do renounce, rather that get a relinquishment, you should do the necessary backfiling and 8854 form in due course to clear your US tax obligations and avoid becoming an covered expatriate.
CLN’s are never issued on the spot, the documents always have to go to the State Dept for final approval so there will probably be a many month delay before you get an answer. And yes, even if the embassy decide in your favour the State Dept has the final say and could refuse it. Unlikely, but not impossible.
And for your information, there is no need to file US tax returns to get a CLN. Yes, it may be that some have tax obligations they need to fulfill if they are still citizens at the time (which you weren’t from the sounds of it), but that is totally separate from the relinquishment/renunciation side and shouldn’t delay the processing of the CLN.
@ Tokyo – Sound advice. Thanks.
As to the Q “If you believed you were no longer American why suddenly start filing more than 10 years after you gained Canadian citizenship?” The answer is v simple: There was panic all around and, like many other former US citizens, this “US person” felt dangling between Scylla and Charybdis, and opted for what seemed the safest route. This is the simple truth.
@ Medea – You say, “Note that if you do renounce, rather that get a relinquishment, you should do the necessary backfiling and 8854 form in due course”. Does that mean that if relinquishment is granted, the dreaded 8854 need not be filled out?
Thanks.
@dt804a, yes if you get a relinquishment backdated to 1993 you do not need to fill in an 8854 form. Read this:
http://isaacbrocksociety.ca/2011/12/16/did-you-relinquish-before-february-6-1995-then-you-did-not-have-to-inform-the-state-department/
@ Stewart
I do not tweet, nor a twitterer am I, but amongst us IBSers I know there are great tweeters (twitterers???) around. Will ye who tweet & twitter on the subjects covered by IBS please step forward and satisfy Stewart’s curiosity and craving for some tweet and twitter connection. 🙂
@ dt804a
As Medea has pointed out, a relinquishment backdated to 1993, means you’re home-free; no 8854 or any other tax filing required. That is why it is so important to stress that you only filed under duress out of fear based on the false information that you were somehow required to file despite having naturalised to Canada with intent to relinquish your US citizenship.
Merely filing taxes is not evidence of an intent to retain US citizenship, it is only evidence of an attempt to obey the law. This of course presumes that you have done nothing else that would indicate an intent to retain US citizenship, nothing at all since 1993, such as applying for a US passport, voting in a US election, or registering the birth of a child at the US consulate, all of which are damning evidence of an intention to retain US citizenship.
Note however, that if you’ve been filing the past few years and do not file next year, you might get a letter from the IRS reminding you to file, to which you can reply with the explanation that you actually relinquished in 1993 and that you mistakenly filed those few years even though you were not required to.
@ Tokyo
Thanks for emphasizing this point.
I know a young man in his early twenties who is from a French Canadian military family. He was born on a Military base in the US while his father was stationed there. His father believes that FATCA would not apply to him and that he is not a US citizen because of the military birth circumstances. But I don’t think that there would be any exemption for foreign military stationed in the US. This young man also joined the Canadian Military so should be able to claim a relinquishment except of course that he does not see any need to do so. With the requirement now for the right process & paperwork to notify the US & the IRS of relinquishment, the clock continues to run for filing taxes even though he is no longer a US citizen.
If asked by a bank, he would be able to truthfully say that he is Canadian only. I do wonder what would happen though if he were required to go to the US.
Any thoughts on this?
@ North of 49,
I don’t think there’s an exemption for children of military personnel either. There may be someone who knows more about this who will be posting a reply, which would be good.
I did take a look at the Foreign Affairs Manual which deals with Acquisition of US Citizenship by Birth in the United States. The only mention of military is in the case of hostile occupation.
There might be an exception to the jus solis rule for children of foreign diplomats, but it doesn’t mention anything about foreign military personnel.
That’s my take, but as I said, maybe someone else will be able to shed more light on this.
I agree with you, too, that he should be in the clear with his banks here per Immigration and Nationality Act, s. 349(a)(3)(B), commissioned or non-commissioned officer in the military, and the IGA.Annex 1, s. (B)(4)(a)(3).
northof49. I say let sleeping dogs lie.
@Atticus and @Bubble, regarding proving that you are NOT a USA citizen…
“In so far as a scientific statement speaks about reality, it must be falsifiable; and in so far as it is not falsifiable, it does not speak about reality.”
The proper way to do science is to have a falsifiable hypothesis. In other words do an experiment to prove that what you believe is not true. See this website its is fun to read, Karl Popper has built a cult around his way of proving reality
http://www.brainyquote.com/quotes/authors/k/karl_popper.html#vL67zE7vA5sXfBCv.99
Is USA citizenship falsifiable?
I’d like someone to falsify this:
Citizenship based taxation is a bad way for a nation to tax it’s citizens.
This would’ve been an interesting approach for Mr Kirsch and Mr Schneider to have taken during the RBT vs CBT debate last May, wouldn’t it?
http://isaacbrocksociety.ca/2014/05/03/toronto-friday-may-2nd-forum-debate-on-cbt-citizenship-based-taxation-vs-rbt-residence-based-taxation/
Well, it has finally happened. Nearly three years ago I found out about the impact FATCA would have on my family. I went through a long, long process to get right with Uncle Sam, become Canadian and relinquish my U.S. citizenship. The last time I wrote them they said they would be contacting me to alert me that my CLN was on the way. No one contacted me and I was out all day. It rained here all morning so I am lucky that the sun was shining this afternoon and the mail arrived late. My CLN has indeed arrived. Approved relinquishment back dates to January 2012. Thank god, this chapter is over. It has been hellishly Orwellian. I started out with many of you before Brock at the old expat forum. That seems a hundred years ago. I’ve spent more than my share of time losing it and going looney and made a lot of mistakes.
Pacifica, thank you for keeping all the records you do. I appeared to relinquish my U.S. citizenship on Sept. 26th, 2013 and received my CLN today Oct. 07, 2014.
My heartfelt congratulations, Atticus. I know how hard this wait has been for you. So happy you can move on now.