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
Speaking of Xpresspost, I was required to give a self-address one to the consulate for my relinquishment meeting months ago. Does anybody know if it will be delivered to my community “super box” down the street, or will they knock on my door to deliver it and get a signature?
I ask because if it isn’t going to be delivered to the mailbox down the road, I can stop getting a little bit excited every single day when I go to the box to get the day’s mail. I can save my increased heart rate for when there are knocks on the door and other appropriate times.
Mine arrived in my mailbox.
I can’t believe, after paying $2,350 US, that they ask for a friggin’ envelope. It’s insulting.
Mine arrived in my mail box. I had been told I would get a notification from them when it was on its way. I did not and it’s a good thing I was home because it was windy and raining hard the day mine arrived. The paper it is printed on is thin regular printer paper and the envelope of course is regular paper brown envelope. Be sure to watch for yours deligently else it might just end up blowing down the street if you don’t have a super box and your mail box is still the kind attached to your home. I didn’t need to sign for it at the door either.
When you open it up there is a cover letter saying you should notify the consulate by email with an attached copy of your CLN to verify you have received it safely and the sooner the better or words to that effect. I scanned my document, contacted the email address with the attached form and let them know I had it in my possession. They replied “thank you” and that was it.
Are all the CLNs for Canadians being sent directly from the US and not from the consulate? Is there as difference if there was a US passport surrendered?
When I went through the relinquishment process at the consulate in Osaka, at which I surrendered my US passport, they said that when the CLN was ready they would contact me and I could either come in to pick it up or they would mail it to me, together with the cancelled passport. I assumed that they are keeping the passport at the consulate for eventual cancellation rather than sending it to DC together with the papework.
As far as I know they come from the embassy/consulate, at least here in Switzerland they do. The paperwork goes off to Washington for final approval, but when that’s given the CLN comes back to the embassy/consulate and they’re sent on from there or you can go and pick them up. Don’t know if the passport went with all the other paperwork. Mine has the cancellation stamp in it with the date of my renunciation and it’s signed by the consul, but that doesn’t really prove they kept it or it went to Washington first.
I suspect that the CLNs, after being approved in Washington, are printed and mailed locally. I’m looking at my mother’s CLN. The envelope was mailed in Calgary, the return address sticker is the consulate’s downtown Calgary location, the embossed seal on the CLN itself says Calgary Consulate of the USA, and it’s signed by the Calgary consul. From conversations that another had with the consul staff, I think they are notified electronically (or check a database) of the CLN approval.
Only guessing now, but I wouldn’t be surprised if all the paperwork is scanned and sent to DC electronically, and that the physical passport never leaves the local consulate. I don’t know that this particular detail matters to anyone though.
Can someone clarify for me – I was hoping to relinquish. I was employed by a division of a provincial government in 2005-2007 so I thought I could try to relinquish under 8 USC 1481 a(4)(a). Is there any benefit from doing this besides not having to pay the fee? (Since it is not before 2004 and the Job Creation Act so I will still have to do 5 years of taxes for the IRS?). Thanks.
Phoenix22,
Lawyer, Phil Hodgen, weighed in on that today in his weekly expatriation email, lengthy and not on his blog yet, but important so I’m putting it here:
What a strange and bizarre post by Mr Hodgen. I don’t understand why he presents that section of the INA as being complex and difficult and “exceedingly murky”. It seems dead simple to me. It’s absolutely clear.
Prior to 1986, if you took a non-policy job with a foreign government they stripped you of your US citizenship, against your will, no questions asked. The Supreme Court put an end to that as being unconstitutional, and the law was changed by simply adding that losing US citizenship applied only if it was your intention to relinquish.
They now assume your intention was to retain USC. If so, you don’t even need to tell them of your government employment. If not, you simply present to them that you did intend to relinquish and did it voluntarily. The burden of proof (on you, the relinquisher) of this intention is “a preponderance of the evidence”, which the FAM says is legally defined as “more likely than not”. That’s simple too: you demonstrate that you did nothing to act as a USC since. The 4079 even includes 9 questions to determine if you have retained ties to the US after your relinquishing act. I’d love to see a version of the 4079 from back in the early 70’s. I bet it’s little changed other than the paragraph at the top that matches the 1986 INA 349 changes in describing that you cannot lose your USC unless the act was voluntary and with the intention of relinquishing.
What’s the big deal? This reads like a lot of FUD. Am I missing something?
FUD — so go in telling them, not asking them. Many here don’t make that the distinction but need to be completely prepared to report their relinquishment that took place in the past.
The 1986 INA 349 law changes are applied retroactively are they not? Employment prior to 1986 still requires that you show your act was voluntary and with the intention of relinquishing even though the existing law did not read that way. Just to clarify to those that may be reading this.
@Calgary,
I agree: you are there to tell them, not grovel and ask permission. I have seen that stated here in the past but not recently. Good reminder for new people.
But in this case the FUD seems to be from Mr Hodgen, not the US government. I’m willing to learn and change my understanding if that’s the case, but I don’t see it and I haven’t heard it in people who have gone this route and received their CLNs from claiming government employment. The difficult claims of intention as I recall have been only when the claimant continued to act as a USC (applied for or renewed a US passport, etc). There’s nothing murky about that.
@Phoenix22
I’ve seen many posts agreeing that for recent relinquishments, the only benefit over renouncing is the saving of US$2350. A benefit of renouncing is that arguably, you might get your CLN a few months faster than claiming a past relinquishment, and there is virtually no chance that the renunciation will be denied.
I have little understanding of the difference in tax issues. Mr Hodgen’s letter above mentions taxes for past relinquishments. He said you might end up a covered expat if you do that. My understanding actually differs. For his example of a 2011 expatriation, the IRS says you are a US taxable person until you notify the Sate Department of your relinquishment. Since that will be at your upcoming consulate appointment, you are NOT late with your 8854 as Mr Hodgen says. What is the correct interpretation of his example?
@heartsick
Yes, indeed. Good catch and thanks for the clarification.
@WhatAmI
I certainly believe that your interpretation of the tax issue is correct. For a relinquishing act performed at June 3, 2004, the pertinent date for taxes is the date the consulate is informed, not the date of the relinquishing act. My relinquishing act (naturalization to Japan) was performed in March 2013, but I did not inform the consulate until September 2014, and I definitely do not believe that I am late in filing 8854 when I do so in 2015.
@TokyoRose
Yes, it’s confusing if one only looks at Form 8854 without reading the separate Instructions document. It’s clear in #2 here which is on the first page of the instructions:
Can a person interpret #2 as saying you should wait for the CLN to be issued before filing an 8854? This question is often asked. Waiting can make you late filing the 8854! Most answers here suggest to file even if still waiting for the CLN. That’s easy for a renunciation, but a difficult decision for a relinquishment that could be denied.
Equally important, the following is also on the first page. It’s never caught my eye before, and I’m not sure if it’s been highlighted in a post here:
Form 8854 asks both the date of your expatriation and the date of notification of expatriating act. This could lead one to think that the question asking the expiration date is in fact the actual date of the act, but it says to See Instructions and the instructions are the above. Clearly, you use the same date for both questions and this date is the date of your consulate appointment to notify them of your relinquishment.
All of the above pertains to relinquishing acts performed after June 4 2004, as described in the sidebar links here.
@ WhatAmI
I’m very clear on my own dates, and I have noticed the discussion of what to do it you CLN has not arrived (a problem that is likely to face more and more expattirants, especially Canadians). I’m in the camp that believes you should file 8854 even if your CLN has not arrived.
One thing I have never seen discussed, and have not specifically asked because it does not pertain to me, is what to file is your expatriation date is between June 17, 2008 and December 31, 1012. The form says*
June 17, 2008 – December 31, 2012. Complete Part III if:
• You made an election to defer the payment of tax on a prior year Form 8854,
• You have an item of eligible deferred compensation, or
• You have an interest in a nongrantor trust.
Otherwise, you do not need to file Form 8854.
So it would seem that most people with an expatriation date between those dates do not have to file 8854 at all?
@TokyoRose,
No, I don’t think it means that at all. Looking at Part III itself, and the 8854 Instructions, I think it (8854 Part I question 4) should say “Otherwise, you do not need to complete Part III”. This list of 3 points regarding deferrals is repeated in the Instructions on Page 4 in a chart showing which _parts_ to complete (repeated again at the end of the same page), not whether or not you should file the form in the first place.
Unbelievable that this “error” has been there forever. I suppose the fact that Question 4 says “see instructions” gives them an “out” if somebody challenged the form.
@ WhatAmI
I agree that your interpretation makes a lot more sense, but it clearly states “Otherwise, you do not need to file Form 8854”, and the instructions do not specifically address this.
You must be right about the error, but it is such a big error. It is such a clear and simple statement, but it seemed so strange that it made me happy that my relinquishing act was not a few months earlier.
That’s not the explanation. If someone expatriated between 2008 and 2012 the IRS foolishly PRESUMES that said person would have filed a 8854 at the earliest opportunity. If said person had some deferred amounts, they would then have to file part III each year.
Phil Hodgen “expatriation email” today discusses what it means between the time of renunciation and receipt of your Certificate of Loss of Nationality (CLN). For future reference:
http://hodgen.com/renunciation-report-from-halifax-ns-one-appointment-only/#comment-37046
FWIW, Phil Hodgen reports on a renunciation in Halifax and advises:
‘Small is Better’
“…A clue for those of you who want to renounce U.S. citizenship before the end of the year: small countries and out-of-the-way Consulates are your best bet for getting an appointment before December 31….”
I am told that Luxembourg is a good choice, fast, friendly and free parking outside.
The process has begun. How are duals at birth answering question 18b and 19 on form 4079 when renouncing?
Yes to both. The key to renouncing or relinquishing is intent . You have to intend to renounce and you have to know what it means.
@Canadian Eh,
Firstly, I just had my appointment in Aug requesting a CLN For a previous relinquishment. I found the DS4079 difficult to fill in and didn’t have enough room for my explanations so I added a separate sheet with additional comments to all the questions. I haven’t heard yet wether my application was successful. I found out later that the form is really intended for those who want to get their US citizenship back which explains why it doesn’t fit well with what we are trying to do.
For question 18b you need to answer yes and I explained how it was that I knew that my actions were expatriating. In my case Canadian immigration officials warned me that it was.
For question 19 you also need to say yes. I had a long explanation including what US law was in effect at the time and the Supreme Court decisions which described that the intent of the citizen was what was most important and that proof beyond a shadow of a doubt was not required. I then listed all my actions that proved I wanted to be a Canadian citizen only, like never renewing my US passport, only working in Canada, voting in Canada etc.
I can’t tell you yet if it was the best way but that’s what I did. Good Luck!!