Another important document, US Joint Congressional Committee published report, from George:
Hello Brockers, another little ditty to download before they take it away;
This is part of a joint congressional committee published report. Others can probably dice this up better, but it might be nice to have in the file. Better yet, send it to your MP as a report to Congress pointing out that having a Certificate of Loss of Nationality (CLN) is not written into US Law. My guess is that would be the final breaking of the Expatriation Act 1868.
“There is no obligation for an individual to obtain a CLN or otherwise notify the Department of State of relinquishing ones citizenship.”
From part of a US joint congressional committee published report “84-288-GPO-CPRT-JC5-2-03-7-2, B. Aquisition and Loss of Citizenship”
If you have relinquished and you self certify as to that fact, how is that an incorrect self certification? How would a bank know whether a self certification is correct or incorrect? By definition they are taking your word for it.
They don’t know and couldn’t care less about the distinction between Dept. of State date of expatriation and date of expatriation for tax purposes. They asked, you answered, end of story, they’re off the hook.
These banks don’t give a damn whether a person is US, Armenian or Swahili. They just don’t want to lose that 30%. This is why FATCA is so ridiculous. It’s going to be rife with wrong information, misinformation and disinformation. Ask stupid questions, get stupid answers!
maz57, The banks won’t hesitate to toss you under the bus if it means PROFIT! That’s all there is to know about that…and most Canadians won’t wake up until it’s too late.
“There is no obligation for an individual to obtain a CLN or otherwise notify the Department of State of relinquishing ones citizenship.”
Unfortunately, this is one thing that I don’t believe about the US. They will find a way of making the documentation a requirement and then legislate it retroactively. I don’t trust the American homelanders as far as I can throw them – which is maybe about about four feet at best (potential judo throw).
Third Banker Commits Suicide Within a Week
Why are banking executives killing themselves?
“A third banker has committed suicide within the space of a week, once again prompting speculation that some kind of financial collapse could be just around the corner.”
The only halfway-positive thing that this FATCA tragedy has wrought is that all this CLN stuff is sure to be litigated. Remember, right now, if you search the case law on expatriates who litigate when or how or if they should get a CLN, you will find almost nothing. Expatriating citizens have not fought this in the courts up until now. But now that we will see people getting their assets blocked or confiscated under FATCA, we will see some litigation which is tragic for the litigants but I guess good for the rest of us.
Thanks, usx, for this additional useful information and the reminding us that it is at your comprehensive InfoShop site. My 70 year-old memory fails often. I’m glad this document has been brought to the forefront, then, again.
Brock continues its, as you say, data morass, not as organized as some would like, including lots of us. We have those who have benefited and have appreciated having the Isaac Brock site here for them. Even though the information searches may not be easy, we do have many resources and I think we provide a needed support in going through all this that they won’t find elsewhere. Besides those who yet have no idea of all of this, there are newbies, those who have moved on with their US compliance problems behind them, and many who continue to fight, because it is wrong, the absurdity and collateral damage of US citizenship-based taxation, now combined with our countries allowing extra-territorial FATCA law across their borders.
As one of us put it:
Some of us noticed a couple of years ago that 8USC1241 s. 349, which is the US law laying out the grounds for loss of US citizenship, only specifically mentions a requirement to swear an oath before a US consular officer overseas (outside the US) in the case of renunciation; no mention is made of any State Department process for any of the six other grounds for loss of US citizenship.
As a practical matter, however, if under a FATCA IGA financial institutions are required to forward financial information to the IRS on persons with “US indicia” except when a CLN can be provided or other reasonable evidence or grounds for having relinquished USC, possession of a CLN for relinquishment or renunciation is the only certain way of avoiding that information provision. Possession of an oath of renunciation of previous nationality (as was required by Canada for naturalization up until April 1973 I think) might suffice for that, though I recall reading or hearing somewhere that US officials won’t accept a renunciation oath unless sworn before a US official. What happens at your Canadian financial institution might (or might not) be another matter.
Unless and until there is a Canada-US IGA and we start getting reports of how this issue is being addressed, my guess is a CLN is the only “safe” way to go.
It is good however to have written documentation from an official US source (Congress) that at least in 1984 (and probably until now as well) there has never been a legal requirement for you to notify State Department of your relinquishment (except in the case of an actual renunciation). That is good to know in the unlikely event that a State Department vice consul questions why you’ve waited until now to apply for a relinquishment CLN, if and when you do so. I don’t think many, if any, people who relinquished USC until very recently had any knowledge of CLNs or how to get them or why they might want one. It is my impression that at least in Canada, most US vice consuls are aware of this, from what I’ve heard in reports of relinquishment interviews.
If US border officers ever start enforcing a requirement that US citizens (in their eyes, based on birthplace) only be admitted to the US on a US passport, a CLN would likely be necessary to gain entry to the US on a non-US passport showing a US birthplace. However, as far as I know they are not currently enforcing this, though some people have been “cautioned” about it on crossing the border and being grilled, in what appear to be isolated cases so far.
I’m not so sure about that, but only because, when people are typically expatriating from the US, they’re really just concentrating on the ‘getting the hell out for good’ part and moving on with their lives, instead of looking for a legal fight.
“Some of us noticed a couple of years ago that 8USC1241 s. 349, which is the US law laying out the grounds for loss of US citizenship, only specifically mentions a requirement to swear an oath before a US consular officer overseas (outside the US) in the case of renunciation; no mention is made of any State Department process for any of the six other grounds for loss of US citizenship.”
That is an EXTREMELY powerful statement and observation. Any chance someone at IBS could make that observation a stand alone blog entry for future reference?
Requiring someone to get a CLN is in fact ultra vires because the relinquishment does not require an affidavit before a US officer.
Riddle me this, what if you applied for a US Passport and in the section where it asks for disqualifying acts you state that you did them for purposes of relinquishment.
They then have a choice, refuse US passport issuance because you are not a US citizen or issue a US Passport regardless because you do not have a CLN.
I wonder if there is a manual on this?
Your ‘obligation’ to comply with US tax laws either is contingent on being a citizen or it isn’t.
If the US refuses to stop considering you a US Person for tax purposes because you didn’t file some form they wanted to you file *after* you stopped being a US citizen, then in fact your ‘obligation’ to comply with US tax law isn’t contingent on being a citizen, because now you’re no-longer a citizen, but you’re still a US Person for tax purposes.
So what the US is practising is worse than citizen based taxation. It’s US Person based taxation, which may be utterly indifferent to the fact that you are not a citizen.
Apparently, the authority the US thinks it has over you is based on nothing at all, except the self-serving whims of the government. And you’re a US Person if they want you to be a US Person, and until they say otherwise.
Notwithstanding that this appears to be only immigration purposes, the judicial branch / courts (court of appeals in this case) have already said that no CLN = no loss of citizenship:
20 F.3d 424
Werner T. HEUER, Plaintiff-Appellant,
UNITED STATES SECRETARY OF STATE, Defendant-Appellee.
Moreover, the presence of administrative proceedings is made evident by virtue of the fact that the Department of State must ultimately and necessarily determine when to approve and issue a CLN. Until a CLN is approved and issued, any act of expatriation, whether or not intentional, is simply an act without significance to nationality or status. We emphasize that until such an approval and issuance by the Department of State occurs, the United States national is recognized as such, regardless of what act of expatriation is involved, even if he wishes to disavow American nationality.
As far as I remember, both FATCA and the IGA agreements require the W8-BEN self certifying non American-ness. Th problem is that FATCA deputized the entire financial industry to be police according to their own interpretations. From following the compliance jocks’ banter on Lunked In, it is obvious that they don’t read the regulations–they just ask their buddies for what they think is righ and copy it half-ass.
It is nice to have various speed limits posted on the same stretch of road, with the officer interpreting which one applies today. US lawmaking is messy and incoherent, and is interpreted differently by different bodies. Laws get layered on laws without cleaning out that which no longer relevant. Serves the lawyers well.
FATCA IGAs have a minimum. There is no maximum. Foreign governments anywhere are free to legislate anything they want against US persons once they receive an IGA from the USA. In fact, they are encouraged.
Indeed so as they have no problems with trying to tax foreign spouses of US citizens.
That have the audacity to pull that kind of shit without even the decency of giving the foreign spouse status at least, is unconscionable. Not that the act of treating foreigners as US persons is any better, as that ought to be a crime in itself.
mjh49783, try to force couples to file jointly as a back door to stamping a foreign spouse a USP despite the fact that the world wide income is on EARNED income. If the money in an account was earned by the foreign spouse, it doesn’t become so for the USC spouse by virtue of mere access.
And that why you need the CLN regardless b/c the rules are open to very liberal interpretation depending on what’s in it for the USG.
Banks are not going to be allowed to decide who is or isn’t a USP. They have a list of requirements and short of an official document (or instructions from the Canadian govt) you will be required to show proof or be thrown the IRS.
Unless someone can force the Canadian court system into this, and they might side with FATCA, we can know we are right and get all righteous about it but the State Department holds the key to freedom – the CLN – and they know it.
Those people who relinquished prior to the mid-1990’s might be able to use that alone but everyone else is stuck.
I don’t even think a CLN guarantees you are rid of the US forever. Say, for example, the USG admits they’ve been a little too hard on their expats and decide to reinstate your US citizenship. What if they lose the paperwork? What if the IRS doesn’t get the memo?
Besides, once the banks figure out that a CLN doesn’t necessarily mean no US tax liability, they might have a look at it, say “that’s very nice”, and decide to report you anyway just to cover their ass.
The bottom line is this: The way the USG operates there never will be certainty or finality. Once a US person, always a US person. It’s an affliction that cannot ever be erased.
maz57, I agree. This might never be resolved. But, as long as any agreement states that we can use a CLN as proof of non-citizenship, the banks will have to honor it b/c mistakes can be just as costly from a Canadian standpoint as they can from the US standpoint.
In any event, what other choice is there?
And perhaps we should calm down a bit until the budget is announced. We don’t know for sure that there is anything in it or that there won’t be another FATCA start date delay.
“Say, for example, the USG admits they’ve been a little too hard on their expats and decide to reinstate your US citizenship. ”
Honestly, I don’t see them reinstating citizenships to those people that actually make it a point to relinquish in writing and to do it officially.
As for those that took foreign citizenships thinking that it’s all they had to do in order to relinquish US citizenship, how would the State Department know of their intentions unless the relinquishers actually notified a US consulate of what they did as an expatriating act?
It used to be where you could lose US citizenship upon taking Canadian citizenship, but technically, ones US status would actually not change unless the State Department was notified of your relinquishing act. Now, when you do an expatriating act,, you also have to state in writing that it was your INTENT to relinquish. If it’s your intent to keep US citizenship, you then become a dual until you formally renounce one of your citizenships.
Therefore, it is really important to make sure that we dot our I’s, and cross our T’s on all of the legal paperwork.
mjh49783, it’s important for people to know, I agree, about the new emphasis on informing the State Dept of relinquishment – intent to and after the fact – and of keeping a paper trail to prove it. For example, sending the consulate an email informing them before you take your oath, getting the citizenship judge to sign a written statement of your intent at the ceremony (Em’s husband did that), taping your ceremony maybe with a brief statement of your intent either before or after (remember to time stamp it), sending an email to the consulate after you’ve taken the oath asking for an appointment to present documentation and sign the necessary paperwork for the CLN, asking for a copy of the signed paperwork. And then remembering to have everything notarized that can be, making copies and keeping all the originals in a safe place for banks or even court case should it come to that.
The rules change. Sometimes by nefarious design and sometimes the courts step in (both the US and Canadian courts ruled back in the late 70’s and early 80’s that citizenship cannot be revoked by a govt for merely taking a second citizenship – which is where our problem really begins, yes?).
Let me begin with that a CLN is probably a good thing to have. But is a CLN ultra vires for a relinquishment?
Start with US Code, abbreviated and what I now call the Schuebert Doctrine who found it;
§ 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—
(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
(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;
Notice the opening with SHALL.
Notice how renouncing requires all manners of prescribed forms? Oath to a “foreign” power has no form requirement.
We know that a Joint Committee of Congress has on record that a CLN is not required for relinquishers.
The Expatriation Act 1868 is law and states as follows;
“That any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government.”
We know a single appeals court discussed CLNs basically saying as an additional note that until the DOS states otherwise you remain US. Would that survive Supreme Court scrutiny? I am inclined to say no.
Now lets look at an IGA. I start with the premise the writers know what they are doing. I may disagree with them but I assume they know what they are doing, unlike possibly Congress writing a law.
(3) a copy of the account holder’s Certificate of Loss of Nationality of the United States or a reasonable explanation of:
(a) the reason the account holder does not have such a certificate despite renouncing U.S. citizenship;
Why would the writer include such language?
What does “resonable explanation” for “does not have” mean?
I am wondering if the author was fully aware of both the “Schubert Doctrine” and the Expatriation Act of 1868 and determined that solely requiring a CLN would not stand Court scrutiny in the US?
If I take a “voluntary” “Oath” with “intent to relinquish” then I “SHALL” “lose” “nationality.” There are no forms for the Oath clause only the renounce clause.
The more this is studied its easy to see how the language got mis-matched when the Supreme Court found these new rights for us to keep our nationality. Had they not gotten invloved, we would not be where we are at today!! Personally I like the look of the good old days where if I voted in a foreign election, my US personhood went away rather quickly.
@mjh “It used to be where you could lose US citizenship upon taking Canadian citizenship, but technically, ones US status would actually not change unless the State Department was notified of your relinquishing act. ”
I agree its wise to notify the State Department.
However, plain faced reading of the US Code states clearly that you “shall lose” your US nationality for the relinquishing acts with no mention of any paperwork or notification.
Renouncing is another kettle of fish.
So when must you notify the State Department after you perform a relinquishing act?
If you want to travel hassle free to the USA on a “foreign passport” then you need to notify them and get a CLN.
If you want to have a CLN to show to a local bank instead of providing a reasonable excuse then you need to notify them to get a CLN.
There are probably more good reasons to get a CLN, but the point is that the language of US Code does not make it a requirement to lose ones citizenship. Thats why the CLN is backdated. The CLN is simply a record or a memorial of an event in time.
It appears that in order to require the application of a CLN for relinquishment then the Expatriation Act 1868 would need to be repealed and the “form language” would need to be added to the US Code in each relinquishing action.
Well I’m no lawyer but it’s been my understanding that what the Supreme Court said was that if a potentially expatriating act occurred (generally becoming a citizen of a foreign state, swearing an oath of allegiance to a foreign state, or working for a foreign government) the US government’s presumption must be that the individual performing the act intended to keep their US citizenship unless there was clear and convincing evidence to the contrary. In other words, no automatic loss of US citizenship, even if the foreign government disallowed dual citizenship.
There could be no more convincing evidence than a person telling the a US consulate or the State Department (by whatever means, in person, email, or letter) that they had committed a potentially expatriating act and it was that person’s intention to lose their US citizenship.
A CLN is not the actual expatriation; it’s merely a piece of paper documenting the fact that an expatriation has occurred. So having a CLN proves an expatriation, but lack of a CLN does not prove an expatriation has NOT occurred.
@maz57. This back and forth amongst everyone is going to help someone looking in at such point this is all litigated in some country.
You are misunderstanding the Supreme Court. They said that citizenship can only be lost if the citizen had as their intention to lose it. They said citizenship could not be taken away by the state that it only could be given away by the person possessing it.
What you reference is the “intent to keep” which is the administrative position adopted by the State Department. That is not codified into law, it is an admin guideline.
Your end quote is superb and sums it up nicely.
” So having a CLN proves an expatriation, but lack of a CLN does not prove an expatriation has NOT occurred.”
I am no longer a US Citizen because I relinquished my US Citizenship. How did I relinquish? An Oath, CHECK. Was it voluntary? Yes, because I said so, CHECK. Was it my intent to relinquish? Yes, bacause I say so and my actions back up what I say, CHECK.
Yes, the burden of proof is on me to prove that per the US Code. Getting a CLN will remove much of that burden. But regardless, I am no longer a US Citizen.
“So when must you notify the State Department after you perform a relinquishing act?”
My plan would be to set up an appointment at the US consulate of my choosing, as ‘soon as practical’ after acquiring Canadian citizenship, to notify them of my expatriating act, and that it was indeed my intent to lose US citizenship when I got Canadian citizenship.
‘As soon as practical’ meaning, I would call for an appointment on the day of my expatriation, or within the next few days.
To my mind, if I was serious on relinquishing, that I wouldn’t want to procrastinate on setting up that appointment with the US consulate, or to otherwise let it slip my mind.
Sure, you CAN probably wait a while until you decide to get around to it. However, if you want to visit the US, and you feel that you’ve relinquished your US citizenship by becoming Canadian, but for the act of making it official with the US State Department, then you CAN NOT enter the US on a US passport!! If you enter the US afterwards on a US passport, then you’ve demonstrated to the US that you’ve INTENDED to remain a US citizen. Therefore, if you attempt to relinquish ‘officially’ later, your relinquishment will be invalidated, and renouncing will be your only option. Also, you might have a problem at the border if they think you are a US citizen while you attempt to enter on a Canadian passport, though you might get lucky once or twice. Don’t count on luck, though! It’s illegal for a US citizen to enter the US on a non-US passport.
From what I’ve heard, after you relinquish, and before the State Department processes your relinquishment, you can get a letter from the US consulate that states that your relinquishment is in process, and you could use that with your Canadian passport to smooth things over at the US border until you receive your CLN.