Please Note: The US State Department under John Kerry, who served in Viet Nam, is now charging $2350 to receive any CLN whether one has relinquished or renounced. So if you are coming to this only now, you are SOL when it comes to getting a free CLN.
See also Relinquishing your US citizenship in Germany
Those of us who have participated in the Expat Forum have seen that one of the first things that many many newbies say is, “I am going to renounce my US citizenship as soon as I have my Canadian citizenship.” Now, I want to suggest that one should never renounce their citizenship if they can relinquish it instead. Months ago I wrote a post on this subject, which I provide below.
But first, some explanations: Renouncing is one of seven ways to lose your citizenship. It requires swearing an oath in front of an official of the US government and it now has a $450 fee attached to it. Relinquishing does not require a US government official, for it is one of several acts that a US citizen can perform that can result in a loss of citizenship, provided the person intends to lose it. Then, the former citizen must only inform the State Department, not so as to validate the relinquishing act, but to make sure that the US government understands what your intent was when you performed it.
It has become clear that there are several advantages to relinquishing over renouncing:
(1) Relinquishment takes the act of losing your citizenship out of the hands of the US government. This has two benefits. (a) There should be no fee because it doesn’t require a US government official–it doesn’t take place in a US Consulate–you only go to the consulate to inform them of a fait accompli, and it only takes one visit, unlike renunciation which usually take two visits. (b) This saves you $450, or it should, because you are not requiring the services of the Consulate–you are there only to inform them of your intention when you committed a potentially expatriating act such as making a pledge to a foreign power.
(2) Relinquishment is usually a positive act which cannot be confused with an expatriation to avoid taxes. You do it so that you can take part in foreign government or to vote in the country you live in, not so that you can avoid US taxes.
(3) Relinquishment is not a renunciation of your citizenship, so much as a positive act vis-a-vis your new home and country. It is not a repudiation of your country but an acknowledgement that dual citizenship is an unworkable absurdity. Thus, relinquishment comes with less stigma, potentially.
Finally, a caveat is in order. Don’t do one thing and say another. That is don’t relinquish your citizenship then travel on US passport, pay tax in the US, register your children born abroad as US citizens, or take up a residence or a job in the USA, except as one holding a legitimate permit to reside or work in the US as an alien. If a person does any of these things, the State Department may not accept your relinquishment. Those who desire to lose their citizenship but who have done such things after the relinquishing act, may need to renounce their citizenship after all.
So without further ado, here is my original post, “Renunciation of US citizenship: On avoiding the new $450 renunciation fee (update 2), which explains in greater detail, what would constitute a relinquishing act:
Renunciation of US citizenship: On avoiding the new $450 renunciation fee (update 2)
I’ve been pretty upset that it would cost me $450 to renounce my citizenship now that the US consulate in Toronto has instituted a fee. But today I was looking at the various government websites: Consider this website from the US state department and its explanation of how to renounce US citizenship:
Section 349(a) of the Immigration and Nationality Act (8 U.S.C. 1481) governs how a U.S. citizen shall lose U.S. nationality. Section 349(a) states:
A person who is a national of the United States whether, by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality:(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State; or(6) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense.
Now perhaps it would interest readers to know that this government website is not telling the whole story: The U.S.C. 1481 lists several other ways that a natural born US citizen may lose their citizenship. Here is the full text (emphasis mine):
§ 1481. Loss of nationality by native-born or naturalized citizen; voluntary action; burden of proof; presumptions
(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality—
(1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; or(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years; or(3) entering, or serving in, the armed forces of a foreign state if
(A) such armed forces are engaged in hostilities against the United States, or(B) such persons serve as a commissioned or non-commissioned officer; or(4)
(A) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state; or(B) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years for which office, post, or employment an oath, affirmation, or declaration of allegiance is required; or(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State; or(6) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense; or(7) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.(b) Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after September 26, 1961 under, or by virtue of, the provisions of this chapter or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.
I swear or affirm that I will be faithful and bear true allegiance to her Majesty Queen of Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfill my duties a Canadian Citizen.
An individual who has performed any of the acts made potentially expatriating by statute who wishes to lose U.S. citizenship may do so by affirming in writing to a U.S. consular officer that the act was performed with an intent to relinquish U.S. citizenship. Of course, a person always has the option of seeking to formally renounce U.S. citizenship abroad in accordance with Section 349 (a) (5) INA.
Update 2: Today a consular officer called me from the US consulate in Toronto. She confirmed what I’ve said in this post, that relinquishing US citizenship and renouncing US citizenship are two different processes that are treated in a different manner by the consulate (including the fee structure).
Yes,
I don’t have the information in front of me,but I do recall that very early, soon after theTax Act of 1962 was signed by President Kennedy that the question of constituionaly of the US taxing the foreign income of its non-resident citiens came before the Supreme Court. The Court ruled that it was not uncnstitutional. So that is a dead end street.
Dear Mr. Conklin,
I meant from an international law perspective i.e. challenged in a court outside the US.
Expensive and discriminatory as it is, the US does allow its citizens to renounce their citizenzhip. Not al countries allow this.
Back in 1967 when I was Vice President of ITT’s telephone company in Peru, I traveled to Buenos aries with our Financal director for a South American ITT business plan presentation. Our fnancial director was a British subject, about 60 years old. When he handed his British passport to the immigration officer he asked “Sir, may I see your Argentine Passort please? “I don’t have one. I’m a British subject.” But his Brittish passport revealed he was born in Argentina where his family was living when he was born. They returned to Britain when he was a baby in arrms and had never been back.
The immigration officer advised him that under Argentine law having been born in Argentina meant he was a citizen of that country and could neither enter or leave with a passport of any other country. He was asked then if he had fulfilled his military obligation. He was taken away by two plain clothed officers. It was determined persons born the year he was born had no military obligantion, but having entered the country he was deported back to Lima on the first flight early the next morning. Back in Lima with his Argentine birth certificate he was issued an Argentine passport by the Argentine consulate and returned 3 days later to Buenos Aires to participate in the last 2 days of the meeting.
An Arentine lady in Miami that I know went back to Argentina with her 20 year old son, born in the US. Going through immmigration in Buenos Aires, she was asked of he was her son. She replied yes. He had a US passport. Born to abroad to an Argentine parent he was considered to be an Argentine citizen. He was almost immediately inducted into the Argentine Army and was unable to return to the US until he completed his term of service one year later. Argentina is one of everal countires that do not allow their citizens to renounce or otherwise lose their citizenship.
With an estimated 5-7 million Americans living abroad, there has got to a smart international human rights lawyer out there somewhere who would be interested to take this on, particularly if he/she is American and facing the same issues.
Boiled Frog. I am not aware of any insternational law challenge. But I do know that the US totally ignores decisions of international courts that are contrary to US laws. Congress take a very strong stand that no international body’s decisions can overrule US law. There was a recent case where a Mexican citzen was convicvted of murder in Texas and sentended to death. He was never informed that he had a right to contact a Mexican consular offifical. This was apppealed to an International Court which ruled that his conviction should be set aside because the US had failed to advise him that he had a right under internationa agreements to contact the consul of the foreign country of which he was a citizen.
But he was execuited anyway. Texas proceded with the execcution because there is no US law which obligates the states to respect the decisions of international courts on matters signed by the Federal Government. As I recall the Supreme Court upheld the decision of the Texas court. This brought strong criticism from ACA and others since it sets a very dangerous precedent for US citizens who are arrested in other countries. Last I heard there was a bill in Congress to impose this obligation on the individual states, but I don’t know if it has been enacted.
Argentina does not pay any attention to international court decisions that are contrary to Argentine law.
The US considers children born abroad to a US citizen parent to be US citizens as well. So does Cuba. Children born in the US to Cuban exile parents after 1970 to be Cuban citizens, so if they go to Cuba to visit their relatives they must enter Cuba with a Cuban passport. They obtain their passports from the Cuban Interests Section of the Swiss Embassy in Washington. I am not sure where the cutoff date came from, but that it what it is.
I traveled to Cuba 5 years ago with a mission group from our church under a license issued by the Treasury Department. One of the members of that group was a Cuban national in accordane with Cuban law, even though born in the US. I don’t think that any international court has ever ruled against this priactice. But I am sure if they had it would not change the way Cuba treats its nationals born outside of Cuba.
By the way the same is true of US citizens born abroad to a US citizen parent. You can slip through US immigration with a foreign passport if it is not discovered that you are a born-abroad US citizen. While we were in Cuba we were reasonably free to fulfill the purpose of our trip, but this person was questioned extensively at the hotel where we were staying concerning the true purpose of his visit. His answers were satisfactory so he was not detained.
As I posted in another thread, I asked Canadian passport official if I could have a Cdn passport which does not identify place of birth. She told me they could do that, but 16 countries will not admit anyone traveling on a passport without place of birth. US is one of those countries.
I am now terrified to travel to visit my 89 year old mother who is in failing health and unable to visit me. Yet, I have been a Canadian for almost 40 years (1973) and have not considered myself an American since then. Nor have my employers, friends or family.
The only ones who seem to consider me American are IRS. Gee, wonder why! There were 250,000 young Americans who came to Canada in late 1960s and early 1970s. Most remained. It is very interesting all this is happening as we are now all very close to retirement age and have the most assets we will ever have, as we will soon be drawing on them in our retirement years. Coincidence? I think not.
wow.. this citizenship thing is a real mess. Thankfully, I think most countries have “relaxed” their conscription rules somewhat. At least in Brazil, they don’t like to pay for the military, the only people I know who are military are people who joined, like in the US.
The son of one of my recently-deceased counsins was one of the Americans who fled to Canada to escape the draft. He was pardoned by President Carter with the others who did this. He married a Canadian and has done very well. He never became a Canadian citizen, but traveled back and forth to visit he dad with documentation indicating his US citizenship. You can no longer do that.
At his father’s funeral we talked briefly. He had never filed a US tax return after fleeing to Canada, but at that time he said he was contemplating it.
I have lost contact with him and have no idea what he did. I have is address but have deliberately not contacted him so as to not risk creating any problems for him.
I crossed the US border with my Canadian passport (with a Canadian birthplace) 3 years ago, as i had done many times But.when I mentioned that I was going to visit my mother, everything changed. i was subjected to a barrage of abrupt questioning-had i ever lived in the US? (yes, from age 10-22) under what status? where was my US passport? He looked at my 19 year old daughter who was travelling with me and said in a rather threatening voice, “and you might be a US citizen too” We were sent to another room to be further examined. Fortunately, the next guy was more reasonable, asked about whether i had ever worked in the US and kindly suggested that I get a US passport or renounce my citizenship.
He let me continue my trip with no further problems, although my daughter has been determined to renounce her citizenship ever since that event.
Now, reading of the events in Argentina, I realize how fortunate I was, maybe it was just the particular officer that let me in, or maybe it is US policy.. Although if I had been with my son and there had been a draft going on, who knows how it might have ended.
Geeeze,
We lived in Brazil 7 years during a military dictatorship. We never had any problems and were treated wonderfully there.
The current president of Brazil was arrested and imprisioned as a terrorit during those days, so her memories of the military dictatorship are much different than mine. Brazil is now conducting serious investigations of abuses committed by the military during those years, having repealed the amnisty that was enacted when the military stepped down. Some heads are likely to roll. Argentina did the same thing a few years back. The abuses in Argentina were much worse than anything that happened in Brazil. General Videla, who was president of Argentina during part of those days is now languishing in prision where likely he will spend the rest of his days.
This is one reason the military lacks popularity in Brazil today. Brazil has 2,000 troops in Haiti as peacekeepers.
My son just got back this morning from a 1 week business trip to Brazil where he spent his formative years in the 1970s. He flew both ways via Toronto because the direct US flights were all oversold.
yup, pretty much. Either that or pay a lot of money in “compliance costs” and many hours of your time to fill out really complicated paperwork every year.
Even excluding the FACTA and FBAR, I’ve read stories of people renouncing because the paperwork is a pain-in-the-butt to do every year. I agree with them. Meanwhile, the American government just feels like this is your “duty” even though you owe nothing.
It seems like the people from the Association of American Residents Overseas (which I only heard of as of now) are working pretty hard on the issues. Their 2011 position paper (link below) is excellent and sums up the things that many of us have been discussing.
http://aaro.org/position-papers-2011?start=1
Now let us see if they are able to get anywhere with it.
CanucDoc,
You are so correct in all your statements. Although there currently is no military service draft in the US, male US citizens are required to register between the age of 18 and 25. Here is a link that provides the pertinent information. http://www.militarydraftregistration.com/?gclid=CNLmiNKx0K0CFY1Y7AodW0H1nQ.
The second immigration officer was much more reasonable in is attitude than he was supposed to be. He would have been within his rights and performing his responsibilities under the law to have refused entry and could have well questioned you further on your compliance with US tax laws which could have resuted in your being turned over to the IRS for prosecution for failure to file US tax returns and FBAR reports. Consider yourself very fortunate indeed. And let others who might be “accidental” US citizens to beware.of what can happen if they attempt to enter the US using a Canadian passport.
Ah.. not much ever happens here. It’s not like the US where people actually go to jail. Politicians and rich people have special jails where they can stay and have barbecues on weekends and invite people over. On top of that, they still don’t like people in jail because they have to pay a pension to families of the imprisoned. So people are usually let out after short periods of time.
Speaking of the dictatorship….
You know that there are open sources of info that point to the US as being the reason why Goulart was deposed and the military dictatorship took over. I don’t think the US will ever play right with the rest of the world.
As far as trade with Brazil, nowadays the Brazilian governments expects everything to be made in Brazil. Be it military aircraft, cell phones, computers, etc.. Almost everything “electronic” is made in Manaus in the Amazon. Even though the companies have this huge tax advantage to produce in the Amazon, the consumer still ends up paying about double for everything that an American pays. Sometimes it’s tax-related due to the high taxes, and sometimes it’s price gouging.
The government inpects almost all incoming packages, so if you order something that costs more than $50 USD + shipping, you will most likely receive a “boleto” (bill) that has to be paid which effectively doubles the price of the item. If you don’t pay it, then your TAX ID gets locked up, and you can’t do anything until you pay it, so it’s just easier to pay it. There’s also a lot of other taxes here which seem to not exist in other countries. This place is a *tax hell*, not a tax haven.
So what’s got me all mad about the US taxation of citizens abroad, is that I pay at least triple or more in percentage terms than the average American pays, yet I get no credit for this, just the hassle of filing. I’ve already made up my mind to renounce. Hopefully I’ll be able to do it within the next few months.
You can still enter the US on “enhanced” Ontario drivers license through land border crossing(I believe other provinces have similar licenses). Check with the Ministry of Transportion in your province.
This is the sort of thing that just baffles me. They threaten you that you are still a citizen, but deport productive working mexicans with US citizen children. It makes no sense to me.
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DS-4079 is the Dept. of State (DOS) form that allows a citizen to implement Sec. 349(a)(1)of INA which is more current than the USC 1481. A Consul at an U.S. Embassy or Consulate needs to sign the bottom of Part I to signify your action was intentional and volutary. Part II needs to be signed by both you and the Consul. This is a one sentence statement that you voluntarily and intentionally acquired a second citizenship with the intention of relinquishing your U.S. citizenship. DOS may not charge you for relinquishment if they read the legislation correctly because it only refers to reununciation. This is probably because relinquishment has only been a option (again) since August 6, 2008 when the DS-4079 was approved as an alternative to renunciation – which is covered under Sec. 349(a)(5).
You must obtain approval from Washington D.C. on the DS-4083 – Certificate of Loss of Nationality (CLN) that will show the date you reported you reliquishing act and the relevant code. Without the CLN, you are still a citizen and can not travel back into the U.S. or even travel through a U.S. airport. You file the IRS Form 8854 with your taxes for the last year as a new non-resident. Until you file the Form 8854, the IRS does not consider you to be free of U.S. obligations.
At the U.S. Embassy or Consul, you need to file:
DS-4079 – Relinquishment Questionaire
DS-4081 – Statement of Understanding of Consquenc.
DS-4083 – Consul needs to send this CLN to Washington for Approval. Without this form, you are just leaving yourself in limbo and open to all kinds of interpretations by the IRS. If the Consul charges $450, you might appeal it, but I would wait until the CLN is approved, because you must have this document to prove you are no longer a citizenl
DS-4080 is for renouncing and requires the same two subsequent forms. Get you CLN and file Form 8854 with your taxes and you will be free.
@Jack: Welcome. Thanks for your comment. I have some responses:
Jack wrote:
Ok, Jack, are you a lawyer? The State Department website clearly appears to equate 349(a) with 1481.
Jack wrote:
That is not the reason. The Consulate provides a consular officer to hear your renunciation, so therefore it is providing a “service” and as result of an internal policy, not legislation, they decided to charge the $450 to those who renounce. In the case of relinquishment, there is no service provided because the one who has relinquished has already lost their citizenship; the act of relinquishing has already taken place as a fait accompli and therefore it would be an absurdity for the Consulate to charge you for it, because they are providing no service whatsoever. YOU are informing them of your PRIOR relinquishing act.
Jack wrote:
This is not “approval”; I know they say it is an approval, but by law a person has the right to relinquish or renounce, and if it is a right, it can’t be “approved” by anyone. The correct term is “recognize”, I don’t care what they call it, that is what they are doing. The CLN therefore is not the sine qua non of loss of citizenship, as though the United States bestows it upon a person. No, it is merely a Certificate that recognizes a fait accompli. Thus, a person who has relinquished is NOT a citizen, even without the CLN.
Therefore, you may indeed travel to the United States. Where are you getting your information? Some of it is clearly problematic.
@Petros
Thank you, Petros for your concise and to the point post. Jack’s post had me quite alarmed – yet again – heart palpitations the whole thing – am I, am I not, a citizen. I most definitely relinquished back in 1972 and I need people like you to put things back in perspective after reading posts like Jack’s. So thanks again.
@ tiger Pacifica has told us that her CLN will have a 1979 date on it. She has not been a citizen since 1979. Her CLN will be hopefully be issued this year, unless another State Department official dies at his desk and nobody notices.
Hi Tiger,
That’s right. The consul was very clear about that, that my US citizenship ended in 1979. In fact, I didn’t even ask her. She just said it matter-of-factly as she explained the CLN procedure to me.
@pacifica777 and @Petros
Thank you both. I really need to stop getting myself in another ‘panic’ every time I read a post that is contrary to what I want to believe.
Pacifica, were filing tax forms mentioned to you? Do you know if you will be obligated to file 5 or 6 years of tax returns, FBARs etc. Having ‘relinquished’ citizenship in 1979 and having had the consul tell you that your US citizenship ended in 1979, I see no logical reason that they would expect tax returns. I so want this to be over. Have not yet got the courage to book an appointment with the Vancouver consulate. Soon perhaps.
There would be no filing requirements for someone who relinquished before 1995. See: http://isaacbrocksociety.com/2011/12/16/did-you-relinquish-before-february-6-1995-then-you-did-not-have-to-inform-the-state-department/
That means no FBARs: because FBARs have six year statute of limitations. And no tax forms, because they are just not going to go after you for something that happened so long ago.