I was born in the US to Canadian parents in 1954. We moved back to Canada in 1966 when I was 12. I have a Canadian certificate of “Canadian Citizen Born Abroad”. I’m now 58. I’ve never worked in the US, never filed any US tax form, never had a US passport. My Canadian passport of course says I was born in the US. As a kid, I remember my mother saying I was a dual citizen up to a certain age. I remember going to the US consulate here in Calgary in the early 70′s. I was somewhere between 18 and 22 or so. I went to ask if I was a dual citizen and what advantage there was to it. As I recall, I was told dual citizenship didn’t really exist and that I wasn’t an American citizen.
I have no idea where I fit into all this IRS/FATCA/FUBAR business. Of course, I want no part of it.
Should I go to the US consul in Calgary and ask questions? I like the idea of some certificate declaring that I’m not a US citizen and have no obligations to any US department. Does the process of relinquishing apply to me?
I’ve spent my whole adult life believing I’m only a Canadian!
The State Department can’t arbitrarily strip a person of citizenship who has committed a potentially expatriating act. But what if the State Department told someone that they were not a citizen back in the day before the Supreme Court changed the law? Does that person then become a citizen even if they don’t want to be one?
Also, I wonder if anyone can come up with further documentation proving that a Canadian like this is not a US citizen. Such written documentation would be useful for quite a number of people if we could.
*I am afraid you were not told the truth by this US consular official.
It is really sad when false and deceptive information is given to persons in the situation you are in.
Sir “Whatami”,
It is up to you. Given your circumstances, my opinion is that you are not American, deal being that at the time the US did not tolerate multiple nationalities. If you want to be a US Person you can be if you want to. But if you do not want to be, all you have to do to avoid IRS furry is to put your position in writing. Write up a one-pager and sign it before a notary public or a Canadian Judge, aforesaid one-pager should cite the historical circumstances. Keep copies, of course. Keep one with your passport. “Relinquishment.”= back dated.
I am not a lawyer, and what I wrote above is not legal advice. Please talk to your local lawyers and authorities in Canada. From what you wrote, I would think that you are Canadian, point barre. Your post is evidence of such.
Thank you, Sir, for coming to IBS. Please stick around. We need friends.
Regards,
Jeff
I heard Simon Black mention in a speech once that the US never really accepted (or at least took seriously) dual nationality until Jimmy Carter’s term in office (1976). If that’s true, then the Calgary consulate official’s statements would be in line with this.
@Roger, the State Department regularly denies passports to those who have dubious claims to obtain one. If ever a person has been denied a passport, as many Canadians in WhatamI’s situation would have been, this would be proof positive that the IRS can’t claim the person as a taxpayer.
On the day I was in a the Consulate, the Canadian-born son of an American citizen was in the Consulate with his mother, a native of Boston. The Consulate had denied him a passport, and he was exceptionally angry because they also refused to refund his $80 passport application fee. Now, if denied a US passport, do you think that the IRS can now ask him to start filing taxes and FBARs? He has the perfect reason to suggest that he is not a US citizen–now that State has utterly rejected his claim to citizenship.
*I believe that the US Passport states something like this: “Although the US does not recognize dual citizenships, you are permitted to have a passport from another country.” If this is still true, then isn’t that a state department rule? Could someone please check for me. Thanks.
WhatamI is, on the facts, a US citizen as far as the US is concerned, and the consular official was wrong. That is clear.
What is much more ambiguous is what that means, and what to do about it. Personally, if I’d never appeared on the US tax/citizenship radar at all, is just ignore the whole issue. There may not be many real down sides to this, depending on WhatamI’s level of interest in crossing the border.
Another option is to file an ATIP request in Canada for your own passport files, then request (from the Americans) a CLN dating from your first Canadian passport application as an adult.
But on balance I’d stay off the radar, unless you have a real interest in going to the US.
@Whatami
Your tattoo is clear. Keep your pants on.
http://isaacbrocksociety.ca/2012/06/30/the-property-of-the-usa-tattoo/
Hi, I’m the original poster. With regards to comments suggesting to do nothing and stay off the radar:
What about FATCA? Aren’t the Canadian financial institutions going to ask me if I was born in the US and forward that info to the US? That puts me on the radar.
Also, I read a horror story (I think on this website) about a person who was detained at the border for being US-born and entering the US with a Canadian passport. I’ve done that at least 25 times.
@WhatAmI: for FATCA, let me quote the draft regulations. For “withholding agent”, read “your bank”:
If your bank starts hassling you about FATCA, at first I’d say just write them back a letter telling them the same thing you told us. If the bank still gives you a hard time, then you may have to look into getting in touch with a U.S. consulate and try what Broken Man suggested. But unless that becomes absolutely necessary, “don’t wake the sleeping bear”.
@everyone: One mildly interesting thing would be to get the 1970 version of the Foreign Affairs Manual and read what 7 FAM 1200 said back then, since that would at least tell you how the consulate was supposed to process Whatami’s case. Not to mention, exactly what the Immigration and Nationality Act said back then.
Hi, I’m the original poster. I’m relying on my memory of a short conversation with the consulate about 40 years ago. I remember though these statements quite clearly:
“There is ?really?technically?officially? no such thing as dual-citizenship…”
“…but you can always move back to the US since you were born there”.
I can’t swear he actually said the words “You Are Not An American Citizen”. He may have, but surely that is implied by saying dual-citizenship doesn’t exist?
What about FATCA? Aren’t the Canadian financial institutions going to
ask me if I was born in the US and forward that info to the US? That
puts me on the radar.
It’s illegal for them to treat you differently from their other customers because of your birthplace. The conflict-of-laws problems with FATCA are one of the things that are giving the Canadian banks headaches at the moment.
If you’ve crossed the border dozens of times with your Canadian passport showing a US birthplace without comment or question, that says to me that it’s not a priority for them at the moment. Other people have been *told* at the border that they needed a US passport, but I haven’t heard of anything more serious.
Hi, I’m the original poster. It’s hard to know what is important, but here are two other indications in my life that reenforced that I wasn’t a US citizen.
I mentioned I’ve made many business trips to the US (between 1980 and 2009). In the late 80’s, I was nearly denied entry to the US at the US Customs located at the Calgary airport for a routine business trip to Houston. I really got the 3rd degree asking why they didn’t have me in their system, and if I was going “to work” there. I kept saying, “It’s just for project review and planning meetings”. He eventually let me in. Then I asked, “What’s the problem, a month ago you passed me straight through without question”. I remember the agent specifically, because he looked _exactly_ like Spencer Tracy, the actor. He replied: Things (the economy and employment) have changed: we can’t have Canadians coming in and taking jobs away from Americans”.
In the 90’s, working for a similar company with a head office in Houston, I got stock options for a few years. In order to get all my proceeds without a 30% (or so?) withholding tax, I was required to fill out the W8-BEN form because I was Canadian.
@Eric – http://en.wikipedia.org/wiki/United_States_v._Wong_Kim_Ark
Back in the day WhatAmI would also have been a US citizen. The main real difference is that s/he would have been in danger of losing citizenship unintentionally through an expatriating act, something that’s no longer true.
*@Fibonacci65 , Here is the actual wording in my US passport which was issued in 2007. It is item No. 14 printed under the heading of “Important Information” in the introductory pages in the front of the passport:
“14. DUAL CITIZENS: A person who has the citizenship of more than one country at the same time is considered a dual citizen. A dual citizen may be subject to the laws of the other country that considers that person a citizen while in the other country’s , including conscription for military service. Dual nationality may hamper efforts of the US to provide US consular protection if the dual citizen is in the foreign country of their other nationality. Dual citizens who encounter problems abroad should contact the nearest US Embassy or Consulate.”
My expired US passport which was issued in 1966 contains the following statement in the “Important Information pages” in the back of the passport
“WARNING TO DUAL NATIONALS”
A person is considered a dual national when he owes allegiance to more than one country at the same time. The claim to allegiance may be based on facts of birth, parentage or naturalization. A dual national, while in the jurisdiction of the other country which considers him its national, subject to all of laws, incouding military service. If difficulties occur, consult the nearest American consular office.”
My earlier passport issued at a date which is illegible because the word CANCELED was stamped over it, inadvertently oblitering the year of issue, when the 1966 passport above was issued, makes no mention of dual nationality. It does, however, contain a statement on LOSS OF NATIONALIITY, which reads as follows:
“LOSS OF NATIONALITY: You may lose your United States nationality by being naturalized in, or by voting in a foreign election of, a foreign state; by taking an oath or making a declaration of allegiance to a foreign state; or by serving in the armed forces or accepting employment under the government of a foreign state. For detailed information consult the nearest American diplomatic or consular office.”
It would appear from the statements in my current and 1966 US passports that the US clearly has recognized dual citzenship since 1966. The language in the earlier passport, the date on which is obliterated, uses the permissive “may” rather than “will” or “shall” with respect to losing US citizenship by doing certain things, would appear to indicate that you did not automatically lose you US citizenship back in those days.
Clearly today anyone born in the US today (and under most conditions born abroad to a US parent who has lived in the US a certain minimum number of years) acquires US citizenship automatically at birth, unless the parent is an officially acreditied diplomatic representive of a foreign government at the time the person was born in the US. If that is the case the person born in the US would likelely have to be able to substiantiate his non US-citizenship because of the foreign diplomatic status of the parent, which denied that person US citizenship even though the person has a birth certificate confirming that he was in fact born in the US.
This is the only situation of which I am aware in which a person born to a foreign parent in the US does not acquire US citizenship at birth. If anybody has any evidence to the contrary, please share it with us.
*@Petros, I am very curious as to the reason the young man born in Canada to a US citizen mother born in Boston was denied a US passport. It is not a matter of the consul flipping a coin “heads you are, tails you aren’t.” There had to be a reason. The law is very clear that such a person is a US citizen when born abroad to a US mother, unless she failed to meet the critieria of having lived in the US for the required number of years to be able to pass citizenship to a child born abroad. This seems to me not to be a matter of judgment but has to be based on the US nationality law that was in effect on the date the person was born, including clarifications with respect to persons born prior to that date.
*All We have personal experience with dealing with consuls in the 70s. The party line then was ‘ we are doing you a big favor by allowing you to have a US passport in spite of the fact that you are also Canadian’ ‘ However, if you exercise your rights as a Canadian, you will lose your US passport. For example, do not vote in Canada and always cross into the US on your US passport’
Now I know times have changed. The fact remains WhatAmI was told he was not American and has always behaved accordingly. His FFI will not ask his place of birth. If they do, he should tell them to bugger off. If on the 1/100 chance he is stopped at the border, he would simply tell them the same thing he told us.
@What Am I Don’t do anything. You don’t need to.
@Whatami
Here is what I think is the answer to your question:
1. You became a US citizen by birth in the US – 14th amendment
2. Therefore, you would have lost your US citizenship only by performing one of the expatriating acts listed in s. 349(a) if the INA (Immigration and Nationality Act). The expatriating act would have to been performed voluntarily and with the intention of relinquishing US citizenship. (The problem you have is that you always believed that you were NOT a US citizen. Therefore, assuming an expatriating act was done, it was not done with the intention of relinquishing US citizenship.)
3. Therefore, if “push comes to shove” you are, I believe a US citizen.
Possible relevance of the discussion at the Calgary Consulate in the early 70s:
It was not until the late 60s that the US Supreme Court ruled that citizenship was protected by the 14th amendment. Therefore, it is likely that the Calgary consulate was being very honest in its view that you were not a US citizen. But, they (in my opinion were wrong). But, you did go to the Calgary Consulate, and asked about your citizenship and they told you (incorrectly) that you were NOT a US citizen. This is good news! I would think and hope that this would support a strong “reasonable cause” argument against any penalties. But, it won’t affect the question of any taxes plus interest (not penalties) owed to the US government. In other words, it is possible (I obviously don’t know your situation) that you could owe taxes to the US government. But of course you have never filed, and as you point out, everybody thinks that you are Canadian only. As Steven Mopsick has said: why you would want to start throwing tax returns at the IRS at this point … So, you need to make a decision whether you want to do anything at all. Certainly you have lived the first 58 years of your life by being a happy Canadian and always traveling to the US as though you were Canadian only.
If you want to do something, what should it be?
File five years of back taxes and renounce (consider the exit tax) plain and simple. If you really want to ensure that any link to the US is broken (and I understand that is what you want). But, the way you should go about that is described in this post:
http://isaacbrocksociety.ca/2012/09/01/new-filing-compliance-procedures-for-non-resident-u-s-taxpayers-effective-september-1-2012-a-preliminary-analysis/
If this is you really want to do.
If you are a “man of means”, you might want a professional consultation with somebody …
@renounceuscitizenship
On balance given the facts I’d vote for watchful ignoring of the problem, but alternatively WhatAmI may be able to get a CLN dated in the distant past, removing the need for the five years of taxes.
I think it’s time for the Monty Python video, courtesy of Joe Smith:
Broken Man mentioned “staying off the radar, unless you have a real interest in going to the US”.
What does “going to the US” mean? All of these or just some of the following?
I’ve done 1 to 4 many times. I can probably do without 3 and 4 in the future, but I can’t continue to go sailing in the BVIs without 2. I don’t intend number 6. Seems spiteful that because I was born in the US, I have less rights than a Canadian-born and can’t do the snowbird thing?
@What am I: The DNC has answered your question. In response to Clint Eastwood’s claim that “this country belongs to us” they replied:
“The Government’s the only thing that we all belong to.”
That’s right, you’re a slave. Perhaps a fugative slave, but a slave none the less.
If you were born in the US then there is only one way to prove without a doubt that you are no longer a slave and that is your CLN.
@WhatAmI, please note that it is not advisable to depend on traveling to or through the US, if on a Canadian passport with a US birthplace, for an expensive vacation. This is because the border service may refuse entry to an “American” traveling on a foreign passport. From the standpoint of movement across the border, the US will consider you a US person that should be traveling on one of their blue passports and no other (though they more often do not stop people–but warn them harshly that they could be refused entry).
@Broken Man
You can get a CLN only if you have lost your citizenship. He would to demonstrate on a balance of probabilities that this is the case … Any affirmative action he takes to deal with this is fraught with difficulties and costs.
*The cold hard reality is that if you were born in the US and have a Canadian or other foreign passport that indicates you were born in the US, but are not on the radar of the IRS, You need to be very careful.
US law requires that persons with US citizenship, regardless of any other citizenship they may hold, enter and leave the US using a US passport.
There is plenty of evidence that this law has not been nor is it currently being enforced. But being forewarned is forearmed with those citizens traveling to the US by land with passports from Visa waver countries (such as Canada). There is, however, plenty of evidence that US consulates abroad will not grant a US entry visa to persons with foreign passports issued by non-visa waver countries unless they present documented proof that they are no longer US citizens.
There is also plenty of evidence that airlines in Europe will not allow persons using foreign passports that indicate the person was born in the US to board flights to the US without documented proof that they are not US citizens. These airlines can be subject to substantial fines if they transport US citizens who do not have US passports to the US.
Just because this US passport requirement is not being enforced with dual-citizen Canadians today is no assurance that it will not be enforced tomorrow.
From one day to the next US policy could change 180 degrees and
@WhatAmI: re (6) There’s always Antigua.
@Petros – I’m interested that WhatAmI apparently hasn’t ever been warned -it speaks to a certain inconsistency, or maybe a willingness to ignore the issue in relation to Canada, at least for now. As the Post pointed out back in the fall, a rigid application of the existing rules would make Grand Manan Island uninhabitable for most of the residents.
@renounceuscitizenship I’ve argued before that the language in a Canadian passport application should serve for an expatriating act if the person wants it to be, and if there’s no assertion of US citizenship.