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.
Participants will need to provide their e-mail address (real or fake) and an alias. The only written rule is that participants must use a same alias each time they post (and not “anonymous” or derivatives thereof).
Bear in mind that any responses that you get from participants is peer-to-peer help, and it is not intended as a replacement for professional advice. Also, the Isaac Brock Society provides this disclaimer: neither the Society nor any of its members are professionals. We offer our advice here only in friendship and we recommend that our readers seek professional advice if they need it.
If you wish to receive an e-mail notification of comments, check the box to that effect when making your first comment.
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
@ Steve
It looks like your oath, government job and green passport have made you good to go for a relinquishment (no fee, no tax filing issues) which should produce a back-dated CLN. They are getting stinkier about these lately but your case is pretty strong. Trouble is, it will be quite a long wait for that CLN to arrive and it will not only be border guards but bank employees asking you tough questions from here on. Whatever you decide to do make sure you have your documentation all gathered up (copies made) and feel secure in your explanation as to why you are NOT a U.S. citizen. I’d suggest carefully choosing your border crossing sites (smaller is generally better) even if it means going out of your way a bit. I’m sorry the road ahead will be even tougher for your brother though. Keep reading and Brockers who are better at this than I will try to help, although our disclaimer still stands. We are not lawyers.
Steve. Look this up
http://www.law.cornell.edu/uscode/text/8/1481
(a)4A fits you to a T . an oath is not required but will help
Also
There is a report to a congressional committee which I can’t find but which states that the preponderance of evidence is demonstrated by actions such as not having a US passport, not voting there, not having property there and so on.
That’s why form 4079 asks questions to establish whether or not you have US ties.
btw, 4079 is confusing because it was originally used for people trying to regain their US citizenship which they might have lost by performing a relinquishing act. Now it is used for precisely the opposite reason.
Bottom line. You are no longer a US citizen. You would (should) be denied a passport if you were to apply for one. Don’t apply for one. That would negate any claim you make.
Now you need to decide whether or not to make an appointment to inform them that you relinquished years ago. Then there is a wait of 6 months or so for a CLN.
think of the pluses. Documentation of relinquishment is free and you have NO tax filing obligations.
Cheers, good luck and consider a donation to ADCS.
@ Devon and others in response to Steve:
I still don’t get one point. If relinquishment is accepted at the interview with the US official, does that mean that Form 8854 need not be filed?
Does it also mean that FBAR need not be filed?
If the answer is “yes”, and these forms need not be filed, does this apply to the period between the interview and receipt of the CLN?
I would truly appreciate a definitive reply.
dt804a Like so many questions , the answer depends .
There is general agreement that if the relinquishing act took place before June 3 2004 there is no need for a 8854 or fbars.
isaacbrocksociety.ca/2012/06/19/if-your-expatriation-date-is-before-2004-the-rules-are-different/
If the relinquishing act was after that then your guess is as good as ours.
For true minnows with no ties to the US there is precious little they can do. The NY Times is reporting today “The Internal Revenue Service, another conservative bête noire, would take one of the harshest cuts, $345.6 million, weakening auditing and taxation. ”
They have very few resources to pursue small actors who live outside the homeland.
Duke: Here is the problem. The link you gave refers to “expatriation date”, while your text refers to the date of the “relinquishing act”. Assume that in 1996 one “commits” a relinquishing act, such as swearing allegiance to our dear queen “with intent”. Now assume that the process is formalized in an interview with a US official in 2014, then the expatriation date is in 2014 while the relinquishing act falls in 1996. So does such a person have to file an 8854 form and FBARs until the CLN is received? What is your view?
The good news is in the latter part of your post. Let’s all hope the IRS has priorities other than hounding Canadians who didn’t even suspect that they are “US Persons”.
@Steve, If you apply for a US Passport you are screwed every which way.
When you cross the border you need to explain that you relinquished your US Citizenship in 19__ when you became an employee of the Canadian Government and received a security clearance.
You should have in your possession proof of that employment and 8 US Code.
A CLN is NOT required to document loss of US Citizenship under US Code.
If the guard acts ultra vires they may require you to return to Canada.
dt804a if you swore allegiance to QE2 in 1996 you can forget all the other b.s. That is when you ceased to be an American. There was, then, no requirement to inform the DoS or get a CLN. All that came later. The 2014 date is merely when you got around to informing them . Forget 8854 forget fbars You are a free man. Cheers.
Can anyone tell me where exactly it says you do NOT need to have a “notice event” ie. a trip an embassy for a CLN in order for loss of citizenship? I’m being quoted the bit about loss occurring when you let them know (from 2004?). Having some seriously unhappy times with my FI. So far self certification is not working, only thing they will accept is a CLN but I’m trying to argue my case and I feel like I’m better informed that even the lawyer they hired! Thanks Isaac Brock!
Date of expatriating act (government employment) was1999. Born in US to canadian parents in late 60s. Returned to Canada aged, 15 months! No passport or SS#
@ Silverbirch check out the sidebar on this page, under “Lists of Links by Subject” re: Important Relinquishing acts prior to 2004. I think this will have the information you are looking for
@ Silverbirch
This is where my opinion differs from Duke’s and George’s and several others, so I’ll throw out my opinion for balance. Their statements are how the world should be, and how I too wish it were. Oh, how I wish it worked like that. As far as I can recall, there have been no reports of success or failure doing what they recommend. Actually, you might be the first to report a failure, along with Steve who reported yesterday that there is now a note on file to refuse him entry if he tries to enter the US again without a US passport (or presumably a registered loss of UCS).
I’m in the exact same boat. Born in the US to Canadian parents. Zero ties to the US since I returned as a child. Government employment 40 years ago. Nothing yet to show for it.
My take: The attitude of the DoS and IRS is that once you are an American (place of birth, for example), you are a USC until they tell you that you aren’t. At least one Broker (maybe Calgary411?) was told that to her face when crossing the border.
Nobody can take away your USC against your will (not counting treason, etc). If it’s your intent, then AS FAR AS THE US IS CONCERNED, only the DoS can revoke your USC. You cannot, the bank cannot, the Canadian goverment cannot, a border guard cannot. “You are an American until we tell you that you aren’t”.
I don’t care what you’ve done or when you’ve done it, until the DoS is informed they obviously don’t know. You cannot self-document your loss TO THE US AUTHORITIES as far as the US is concerned. They have to APPROVE and document it, even if you renounce. Back in the day, there was no need to inform the US or get a CLN of an expatriating act. Nobody knew or cared. Now they do. NOW they do. Fortunately, they will back-date the loss when appropriate. A by-product of this is a CLN that you can show to FIs.
George suggests carrying proof of Canadian government employment and quotes of US citizenshhip law when entering the US. Say what?. If that works, let us know where you crossed the border and who was on shift that day. Not even the senior consul in a US consulate can approve loss of citizenship. They’re just clerks in this regard and have to send it off to the DoS in DC for approval (good thing, actually). Does a border guard have more authority or even know that part of citizenship law? A guard is not acting ultra vires if you have a US birthplace and nothing turns up in their computer records of your relinquishment. HIS LAW says you are a USC unless documented otherwise, and he is applying the law by insisting that you have a US passport. I’m assuming that every loss of citizenship is available immediately on their computer system and that carrying a CLN is not necessary, but when I get mine I’ll carry a notorized copy just in case.
If you were born in the US and you haven’t “registered” your relinquishment, then you should never cross the border again. Your remaining problem is with FATCA and your banks. It’s certainly worthwhile trying to convince your FI that you lost your USC years ago. If it works, please let us know the name and branch of the FI. In fact, it would be nice to know now what FI is not buying your self-sertification so we can avoid it. I HAVE NO DOUBT that SOME FIs can be convinced, but there’s no way to know until you try, and every employee (and lawyer) in every branch of every FI potentially will have a different idea of the rules for some time to come.
@Silver birch “Can anyone tell me where exactly it says you do NOT need to have a ‘notice event’….”
What you are asking about is stated in the 2003 Joint Committee on Taxation Report (Joint Committee Print JCS-2-03 – Review of the Present-Law Tax and Immigration Treatment of Relinquishment of Citizenship and Termination of Long-Term Residency).
It is a lengthy report, and the umbrella link to all of the 2003 JCT report is here:
http://www.gpo.gov/fdsys/pkg/GPO-CPRT-JCS-2-03
The specific quote you want is in Chapter V, Section B
V. REQUIREMENTS FOR U.S. CITIZENSHIP, IMMIGRATION, AND VISAS
B. Acquisition and Loss of U.S. Citizenship
A separate pdf of that section of the report is here:
http://www.gpo.gov/fdsys/pkg/GPO-CPRT-JCS-2-03/pdf/GPO-CPRT-JCS-2-03-7-2.pdf
On the 2nd page of this pdf (the page numbered 51), under the heading “Certificates of loss of nationality”, the second sentence reads, “There is no obligation for an individual to obtain a CLN or otherwise notify the Department of State of relinquishing one’s citizenship.”
I must emphasize that the JCT was documenting the situation as things stood in 2003. This report led to legislative changes in 2004, when the need for a “notice event” was instituted.
Here is a good summary of the 2004 JCT and 2008 HEROES changes. I’m sure it’s been quoted here before.
http://alexatamanenko.ndp.ca/sites/default/files/multisite/2064/field_content_files/immigration_package_-_attorney_greg_boos_-_cascadia_cross-border_law_.pdf
Silver Birch Shovel found it.
It is also here in a slightly different form
http://www.gpo.gov/fdsys/pkg/CRPT-104hrpt496/pdf/CRPT-104hrpt496-pt1.pdf
page 156 from 1996
,blockquote>During the course of the 1995 Joint Committee on Taxation staff
study on expatriation (see Joint Committee on Taxation, Issues Presented
by proposals to Modify the Tax Treatment of Expatriation
(JCS–17–95), June 1, 1995), a specific issue was identified regarding
the difficulty in determining when a U.S. citizen has committed
an expatriating act with the requisite intent, and thus no longer
has the obligation to continue to pay U.S. taxes on his or her
worldwide income due to the fact that the individual is no longer
a U.S. citizen. Neither the Immigration and Nationality Act nor
any other Federal law requires an individual to request a CLN
within a specified amount of time after an expatriating act has
been committed, even though the expatriating act terminates the
status of the individual as a U.S. citizen for all purposes, including
the status of being subject to U.S. tax on worldwide income. Accordingly,
it is anticipated that the Treasury report, in evaluating
whether improved coordination between executive branch agencies
could improve compliance with the requirements of the Internal
Revenue Code, will review the process through which the State Department
determines when citizenship has been lost, and make recommendations
regarding changes to such process to recognize the
importance of such date for tax purposes. In particular, it is anticipated
that the Treasury Department will explore ways of working
with the State Department to insure that the State Department
will not issue a CLN confirming the commission of an expatriating
act with the requisite intent necessary to terminate citizenship in
the absence of adequate evidence of both the occurrence of the expatriating
act (e.g., the joining of a foreign army) and the existence
of the requisite intent.
P.S. I obviously disagree with What AM I
@WhatAmI
The “Malevolent Time Machine” paper by Miller and Brody was going to be my follow-up post.
A cleaner version for printing and that will allow cut and paste is here:
http://www.robertsandholland.com/siteFiles/News/03-05-13_Expats%20Live%20in%20Fear_MJM.pdf
[ Not calgary411 — here was the reference to that horrible border crossing (even worse than the one where I was intimidated to get my first and only US passport that now has holes punched through it!): http://isaacbrocksociety.ca/2012/05/02/she-didnt-know-the-united-states-still-thought-she-was-an-american/comment-page-4/#comment-16420. ]
Good luck, Silver birch. Stand up to the bas****s.
WhatAmI, Shovel, and Duke of Devon, thank you for giving those links to the “Malevolent Time Machine” paper. As one to whom it applies, my mind has been eased since I read that paper some time ago. Still, there’s this in the conclusion:
“More than a few expats find themselves in the same position as John Doe from the example above. They’re understandably terrified that the IRS will pull the lever on a time machine, altering the past so that their relinquishment of U.S. citizenship never happened, with grossly inequitable and devastating consequences. The authors can only hope that the IRS will relieve their suffering by issuing favorable written guidance as soon as possible. ”
I’ve given up hope that the IRS will issue favorable written guidance. I’ve come to believe that certain government bureaucracies — the IRS, Homeland Security, and (as the recent report reveals) the CIA, among others — employ a considerable number of sadists.
@Duke,
I fully agree that prior to 2004 there was no need to notify the DoS or obtain a CLN. So, we’re on solid ground if anybody tries to say that we screwed up back in the day by not making notification. But since 2004, things are different. Now it’s required. The issue is, does that mean it’s required of people who relinquished prior to 2004? Of course not. I don’t think so, and you don’t think so. We agree that it doesn’t and shouldn’t, but a lot of good that does us. The US now requires it. The DoS, the IRS and border guards. You’re an American until they say you’re not. It’s their country, their laws, their citizens, and they can do whatever they want. So, who you gonna call? All we have to do is never set foot there again, right? Oh, well, that was until the US used extortion tactics to force FATCA IGA agreements, making their requirements Canadian law. There’s just no end to what a horrible thing FATCA is. Yes, the IGA mentions a “reasonable explanation as to why you don’t have a CLN”. The laws that we’ve quoted are the reasonable explanation. Game over, done deal, right?
Well, Silver Birch is paving the way. I hope he succeeds. One could say a task at hand is to somehow educate all Canadian FIs about this. There are probably more FI employees than US former dual-citizens in Canada, and I have to assume bank lawyers across the country are going to push for covering their asses, which translates to demanding a CLN, as Silver Birch is finding out from his particular FI. It’s been talked about before: how can every FI in the country possibly have expertise in US citizenship law going back 60 years or more? Not even all the US consuls know the laws that we talk about every day. I wouldn’t expect border guards to know it either.
I read the laws the same as you, and I have the same “they can shove it” attitude. It’s no surprise that everyone is demanding CLNs since nobody else has the authority to make a decision on US citizenship law. The US should really lighten up and approve anything that remotely resembles a past expatriating act. The US should really lighten up and repeal citizenship-based taxation and if they must, only have FATCA report on US residents who hold accounts in foreign countries (as I believe was the original spirit of the law).
Thanks for the support all! I did provide them with the malevolent time machine synopsis but it didn’t have the exact wording I knew I had heard somewhere here. What shovel said was it. I will pass that along as well, though they are not happy to keep consulting their lawyer, though they keep saying I should spend my money on a second opinion!
Maybe I should recomend a different lawyer for them!
As I see it, FWIW, if you performed a potentially relinquishing act, no matter what year, voluntarily, with the intent of relinquishing your US citizenship, as per s. 349(a) Immigration and Nationality Act, you terminated your US citizenship – whether or not you have a CLN.
But a CLN is clear proof that you did (eg that the other party agrees that you terminated your contract with them) and having a CLN can make your life a lot smoother. Much like, to use another contract anology, if you make a verbal contract with someone, the contract exists, but unless it’s written down and signed you may have a very hard time proving it.
That’s one reason why I got my CLN, for convenient proof.
The other reason is that my CLN is a record of my life (I would have got one in 1979 (I like to tie up loose ends) but I’d never heard of one then, and officials of both governments said the citizenship loss was automatic upon naturalisation. When Canada Immigration told me that they routinely notified the US govt of naturalisations, I assumed all loose ends were tied up.
The third reason was purely personal satisfaction. Whereas in 1979, I would have considered a CLN a routine document (as far as saw it, I exchanged citizenships in 1979, two good countries, I liked one better), in 2011 the Americans tried reclaim me (to raise money for their now-financially-failing country). I knew on 26 January 1979 that I was giving my citizenship back to the US and could never again exercise the rights and privileges of membership. I knew, in 2011, that I had kept my word since 26 January 1979 and, to me, getting my CLN was the satisfaction of making the US keep its.
@Silver birch
If you recommend a different lawyer for them, make sure it’s not Roy Berg.
Of course! Refer them to John Richardson.
@WhatAmI, Again there is no requirement in 8 US Code to obtain a CLN in order to have relinquished USC. Renouncing, yes.
The US Exaptriation Act which is referenced in the State Department manuals makes clear that a CLN is not a requirement to lose USC.
I agree completely that not having a CLN may make it impossible to visit the US.
I also agree that a CLN could make life a lot easier with some FIs.
Having said that, if you are a former USC when a FI asks Are you a US Citizen, then you can truthfully answer no.
In the Netherlands, a “countrywide standard” is now in place on what constitutes a reasonable explanation for not having a CLN having relinquished.
http://isaacbrocksociety.ca/wp-content/uploads/2014/11/ENG_FATCA-Guidance-Dutch-self-certification-form-natural-persons.pdf
I have found amongst many former pats, that one can still have a financial life as a former USC without a CLN.
@ WhatAmI
While I, too, empathize with Silver Birch’s situation, I totally agree with your analysis. We can’t expect border guards to be scholars of citizenship law; if they were, they would not be border guards at border kiosks. Senior FATCA officials in FFIs WILL need education (and hopefully they will take this education back to others of their ilk at head-offices so that others do not have to go through the same s**t – – indeed, we all here at IBS should know about these “educational events” and what institution “attended the class” so that we, in another town or province, can stand up to the institution’s rep to tell them that this has already been brought to their FFI’s attention and we, the effected, do not appreciate having to go over this turf again and again (go ahead – – give them a failing mark in this post-FATCA learning course).
Anyway, WhatAmI, thank you for being so clear and realistic. Bit by bit we, the educated ones, will prevail. And bit by bit, please donate to ADCS so we can prevail in the courts as well.
@ Shovel,
I reiterate – do we really expect kiosk border guards to be DOJ/citizenship law scholars?
Also, as someone who did clinical psychological testing for 30 years (intellectual, vocational, neuropsychological, etc), I’d like to add to this conversation:
We all need to keep in mind that while maybe 30% of the population is of AVERAGE intelligence, and 35% of the population may be ABOVE AVERAGE in intelligence, 35% of the population is BELOW AVERAGE in intelligence – – and none of us have any idea where the border guard you are facing stands along this continuum……… Pick your battles accordingly!!!
@ Silver Birch
“Maybe I should recomend a different lawyer for them”
I bet lots of Brockers could provide the names of lawyers that these FFIs should consult (and soon), including Mr. Arvey and Mr. Richardson!!!!!!!!!!