I asked Cheryl to share her story, as I thought it is important for others to see her claim to have relinquished US citizenship despite having dual citizenship (USA/Canada) at birth. It may be very helpful to others in a similar situation.
Cheryl’s Citizenship Story
I was born in the U.S. to Canadian parents although I didn’t know that for many years. I was the only member of my family born in the United States; all my grandparents, aunts, uncles and cousins were born and living in Canada. In fact my family connections in Canada go back to well before confederation, and I am related to two Fathers of Confederation.
As a child I had deep connections to Canada, spending 3 months every summer, from the age of one visiting family and spending time at the family wilderness cabin in Ontario.
I decided when I was 17 that I wanted to move to Canada, live in Canada for the rest of my life, and become a Canadian citizen if possible.
I moved to Canada at the age of 18 on a student VISA and then became a landed immigrant on my way to becoming a citizen of Canada. I subsequently found out that my parents were Canadian citizens at my birth and that I might become a Canadian Citizen by applying as an adult to be registered as a Canadian Citizen Born Abroad. Being a Canadian by birth was particularly appealing to me. The Canadian Government allowed my registration retroactively.
Both at the time of my application for landed immigrant status and discussions about becoming a Canadian citizen by birth, Canadian Immigration officials warned me that if I became a Canadian citizen by either path I would lose my American citizenship. I believed them and as I wanted to be a Canadian citizen only and no longer an American citizen, I proceeded in both instances on the path to becoming a Canadian citizen. I did not want to be a dual citizen U.S./Canada. I could not imagine owing allegiance to two nations with different laws, policies and priorities. It seemed quite possible that a conflict might occur between the two allegiances making it impossible to honour both.
There are four important issues that have bearing on my case:
1. My parents did not register my birth with the Canadian Government and as a result, I had to apply as an adult to become a Canadian Citizen at birth. The fact that I applied as an adult, demonstrates my voluntary intent to become a Canadian citizen. I was therefore acknowledged as a dual national at birth of the United States and Canada.
2. As previously mentioned, at the time of my registration as a Canadian Citizen Born Abroad I was warned by immigration officials that I would lose my United States citizenship as a consequence. I believe this warning was based on Section 350 of the 1952 United States Immigration and Nationality Act which was the law at that time. By proceeding, I clearly demonstrated my voluntary intent to lose my US citizenship.
The 1952 INA Sec. 350 stated that a person who acquired at birth the nationality of the United States and of a foreign state and who has voluntarily sought or claimed benefits of the nationality of any foreign state shall lose his United States nationality by hereafter having a continuous residence for three years in the foreign state of which he is a national by birth at any time after attaining the age of twenty-two years. Exceptions (1) and (2) do not apply to me and restrictions on expatriation Sec.351 (a) and (b) also do not apply to me.
I believe I have met all requirements of this law for loss of nationality:
Firstly, I was a dual national by birth.
Secondly, I voluntarily sought and received many benefits from Canada. For example, I received universal health care coverage, voted in a municipal and provincial election and was accepted in a post graduate program requiring Canadian citizenship.
Finally, I also met the continuous residency requirement by living in Canada for the mandatory 3 years after age 22.
3. Section 350 was repealed (Pub. L. 95-432) on Oct. 10, 1978 after my required residency in Canada for loss of citizenship was completed and thus I believe the law as originally stated applies to my case.
4. In my research of United States Laws regarding Loss of Citizenship, I have reviewed several United States Supreme Court decisions [Perez v Brownell (1958), Trop v Dulles (1958), Afroyim v Rusk (1967) and Vance v Terrazas (1980)]. Although not all aspects of these cases apply to me I found several directives important to my case:
A. The court in several decisions stressed the importance that a Loss of Nationality must be done with the assent of the citizen. As an example in Vance v Terraskas the court concluded “In the last analysis, expatriation depends on the will of the citizen rather than on the will of Congress and its assessment of his conduct.”
B. The court also noted that a person’s intent to relinquish U.S. citizenship could be discerned not only from the person’s words but as a fair inference from proven conduct.
C. And finally, in Vance v Terraskas, the court upheld constitutionally that the standard burden of proof for evidence of loss of nationality is “clear and convincing evidence.” Proof beyond a shadow of a doubt is not required.
As such, when my Canadian Citizenship was acknowledged, my intent was to lose my United States citizenship voluntarily and I have clearly demonstrated that was my intent by my subsequent actions as listed below:
i. I have never lived in the United States since I was 17; living in Canada for the last 43 years and marrying a Canadian.
ii. I have never worked in the United States. I have only ever worked in Canada.
iii. I have never voted in a U.S. election but since being acknowledged as a Canadian citizen I have voted in all municipal, provincial and federal elections in Canada.
iv. I have never filed U.S. income tax returns but have filed annual income tax returns in Canada since 1974.
v. Once I was accepted as Canadian, I never renewed my United States passport; subsequently travelling exclusively on a Canadian passport even when entering and leaving the United States. My Canadian passport was accepted by U.S. officials thus acknowledging my Canadian only status as the U.S. law at that time required U.S. citizens travelling to and from the United States to use a U.S. passport. My passports clearly stated I was born in the United States.
vi. After acknowledgement of my Canadian citizenship, I had little connection with the United States. I visited family in the United States only a few times as my parents lived overseas for much of this time and then retired back to Canada in 1986. I also travelled to the United States for approximately 10 holidays between 1977 and 2004 (no holiday longer than 3 weeks).
vii. The last United States stamp in my passport was on Dec. 27, 2003 in Miami.
viii. I last visited the United States I believe in 2004.
ix. I never owned property in the United States.
I believe all of these actions together clearly support that my desire was to lose my United States citizenship and to live as a Canadian citizen.
5. I understand that on Feb. 6, 1994 the requirements for relinquishment of United States citizenship was changed (USC 26 section 887) such that to be valid the relinquishing act must be reported to the United States State Department but as my relinquishment occurred many years prior to 1994, I believe that I was not required to notify the State Department.
In summary, I made intentional, voluntary acts to become a Canadian citizen and lose my United States citizenship from age 18 to 25. I have acted as a Canadian citizen not a dual citizen since that time. I performed these actions in good faith and according to United States law at the time. If the law had mandated I would remain a dual citizen, I would have taken the necessary steps to renounce my United States citizenship at that time.
Cheryl’s experience at the Calgary Consulate
I first dealt with the Calgary Consullate in the Spring of 2014. They were very prompt in answering my emails and quite helpful in outlining my next steps in applying for relinquishment etc. I booked an appointment and sent in my 1st DS4079 which the consul assisstant then informed me that it likely would not be approved. In retrospect, I believe that she was correct.
At that point I kept my appointment and decided to just renounce. That did not sit well with me so I started digging without much luck until I found the Brock site. I applied for the Citizenship and Immigration file from Canada and found s.350 which seemed to completely fit my case. I ended up cancelling my appointment in June in Calgary as my file from Canada had not arrived. The consulate was very understanding and after my file arrived they made me a second appointment quite quickly.
At my appointment in Aug, the staff was pleasant but as I mentioned to you didn’t seem to understand the law i.e. adding a 4th criteria that doesn’t seem to exist and were not very helpful in helping me to understand what “benefits” of citizenship are. She tried to persuade me to renounce not relinquish as the cost was going up a lot in the near future. I can only speculate as to the reasons for this. Due to her lack of understanding of the law in this situation it certainly might have been an effort to decrease relinquishment but I do not know that for a fact at all.
The consul himself seemed too just regurgitate what the staffer had told me. It seemed clear he had not read or didn’t understand my application. He did not have any questions about my application and did not challenge me on any other aspects of my application like whether I intended to lose my citizenship at the time etc. He would not tell me what his recommendation would be because he said he had to discuss it with lawyers. It was only after the application was sent on to the State Department (3+weeks) that they told me he recommended to reject my application but would not tell me the reasons he used. I was told I could only be informed of that after the State Department makes its decision.
I assumed at the time that this is not a common law to be used in relinquishment and understand them not being informed. My problem is them recommending rejection on seemingly such a frivolous way.
@George, once again, thank you. I am working on the file.
I did recognize my USness until I reached 18 (or 21 – been so long can’t remember!) but was happy with the thought that I had chosen not to claim the citizenship. To me, that was bearing witness of my allegiance to Canada, that I only wanted to be Canadian.
@BCDoc
The trouble is, where do we put our money? Opening a new business account anywhere will trigger place of origin questions. If we refuse to answer they will assume a Us indicia and send our info on anyway. I like the idea of staying out of their system and continuing to live as I have done as a Canadian but it does seem like we will all need a CLN to placate the banks. If they say no we just can’t go back to the US for anything I guess. That’s a pretty big just though, since the larger academic medical conferences are all there. It would put an end to one aspect of my career.
Hi Silver birch,
I moved my funds to RBC-DI. I use a simple “couch potato” portfolio made up of Vanguard Canada ETF. The MER on these funds is less than 0.2% per year (compare this to 1.52% for the MD Balanced Fund– a savings of $1,300 per year per 100k invested).
When I originally transferred my accounts to RBC DI there were no questions about my “USnish”.
I recently opened an investment account for my son at RBC-DI and they are now asking the questions they shouldn’t be asking– “Are you a US citizen? Were you born in the US?” I consider these questions such an egregious violation of my Charter rights as a Canadian citizen that I have no difficulty telling a white lie and answering “No and no.” The application is an on-line web-based application. While none of us can predict the future, I feel quite confident that the ADCS legal challenge will succeed and the current FATCA IGA will be rejected by Canadian courts. While I am waiting for this to play out, I am ok with taking necessary measures to prevent my private Canadian financial data from being spoon fed to the IRS.
With respect to my particulars, I came to Canada over two decades ago to study medicine in Montreal. My partner and I were taken with the Canadian way of life and decided to stay. We both became Canadian citizens in 2001. In 2010 I renewed my US passport after being told by the US border folks that I was required to use a US passport to enter the US (not true). This past spring, I tried to document my relinquishment at the Vancouver consulate but was refused because of the passport reneway. Since then, I have only travelled to the US on my Canadian passport, declaring myself as Canadian at the US border. So, my experience taints my advice– if you’ve already relinquished via your employment with an Ontario government agency, consider playing the middle ground and not officially documenting via a consulate. The right is yours– if you “ask” for the right, you risk hearing no for an answer. Hope the above answer re: the MD Management accounts plus my two cents regarding relinquishmene helps!
Silver Birch. If MD asks are you a US person, you can just say no. They should not ask where you were born. There is a thread here concerning which FIs ask what. It is mainly in favour of credit unions. As far as I know, so far, only TD asks place of birth. ( they shouldn’t). All the others will ask ‘citizenship?’ You can tick off Canadian and leave it at that. Trust BC Doc and me- you do not want to go down the road that requires filing. So far they don’t know you exist. You can keep it that way. I’m a retired doc. I think you can do better than MD.
Duke of devon. I would have had no problem with the citizenship question but they asked place of birth and I wasn’t keen on lying, which is what our advisor wished (aloud) I had done! Now I have been sent this W-9 form which I will not send back to them. Can’t fill it out even if I wanted to since it asks for things only a true USC would have! I have no intention of going the compliance route but I am feeling threatened. I fear we are already outed both because of this form and because of our September attempt to make an appointment with the embassy. For now I am forgoing traveling to the US but in my current job I will be required to travel there sometime.
@ Silver birch
A suggestion: Tell your MD advisor that you are no longer a US citizen as you relinquished your USC in 20__ (when you became an employee of an Ontario agency). This is your reasonable explanation as to why you are no longer a US person. I believe others more versed here in the requirements of FATCA can explain why you’re not required to produce a CLN. As a non-USC/non-US person, the W9 is the wrong form for you. If you are holding US based investments (primarily US traded stocks) outside of your RRSP, you’ll need to/should be completing the W8-BEN form. If MD Management demands more than reasonable explanation, you need to look elsewhere.
@ SilverBirch and BC Doc,
Here’s a section of Annexe I of the IGA that ties in with BC Doc’s suggestion:
http://www.fin.gc.ca/treaties-conventions/pdf/FATCA-eng.pdf
Annexe 1, II (b)(4)
I wonder if there’s suddenly going to be a surprising number of Canadians whose parents were diplomats at the time of their birth?
@Duke of Devon
Is there anywhere on the TD website (account application forms, etc) where TD asks place of birth?
@Silver Birch, you are already partly down the rabbit hole……
If it is true that you relinquished under 8 U.S. Code § 1481 (a)(4)(a) the you need and must state that you are NOT a US Citizen.
It might be beneficial if you were to prepare a statutory affadavit where you state your name, your address, that you voluntarily relinquished your US Citizenship on _______, under 8 U.S. Code § 1481 (a)(4)(a), by taking employment with the Government of Canada.
You will need to swear out the statement and sign it before a lawyer who will add customary language that it was sworn before her on blank day under some section of Canada code.
You will then have a legal document under Canadian Law that you can give to these people if they ask. I suggest getting several of these.
You then have your reasonable explanation with hopefully a nice big gold seal on it.
@SilverBirch………you said you fear being outed. You are having an OMG Echo moment…….I know physically what your body is telling you right now. But as you know “Doctor heal thyself” does not work well.
You are NOT a US Citizen thereby you can not by definition be outed.
You can be made uncomfortable and inconvenience but not be outed.
Keep reminding yourself several times a day you are not a USC.
tdott. This seems to change daily. I just checked TD DI’s on line form It asks for citizenship but not place of birth. RBC DI asks country of birth . This appears to be new. I asked an assistant mgr at TD if they ask country of birth. he appeared mystified. ‘Maybe for IRAN or North Korea” he replied.
Thanks for the morning chuckle 🙂
At the risk of sounding simple, what does “DI” stand for?
Direct investing
My banks accounts pre-date FATCA and have no indication of my place of birth. However, if I ever do open a new account and am asked my place of birth I have no qualms about lying, because they have no business asking me this in the first place. In any case, I am used to lying about place of birth…pretty much everyone in my life other than family members thinks I was born in Canada anyway as I never wanted anyone to know I was born in the U.S. (long before I knew about citizenship based taxation). And as for providing the bank with “The reason the Account Holder did not obtain U.S. citizenship at birth”, I agree there are going to be a lot of people whose parents were diplomats all of a sudden. I’ve actually used that one with immigration agents when asked why I wasn’t entering the U.S. with an American passport.
Pingback: FATCA and Extra-territorial taxation | Alliance for the Defence of Canadian Sovereignty
Pingback: The Isaac Brock Society | FATCA and Extra-territorial Taxation
Thank you IBS so much for being here. Everything here has helped my keep my sanity, and I only wish I could contribute something back.
I would really appreciate if anyone thinks I can relinquish instead of renouncing.
My background is I am in my mid 30’s, born to my American mother and Canadian father in Canada. I have lived here here my whole life, educated and employed and identify as Canadian.
When I was a minor my mother got my US consular birth abroad and SIN at at US consulate in Canada. I have never used them. i had a US passport issued in 1999 – used once, one stamp in from when I went to visit her family, and my Canadian passport was unavailable to use as it was having a visa put in it for upcoming travel.
These US documents have been sitting in an envelope since 2000. I have travelled the world, having worked and volunteering, always with my Canadian passport as that is what I was.
So now I know I am a USP and realize I am a second class Canadian born citizen since FACTA.
I am a physician and file taxes as a sole practitioner; I am paid by the health services of my provincial government so I don’t know if this qualifies as government work?
Before I get married or have children and potentially incorporate my practice I need to deal with this.
My accountant and MD management have both asked me if I am US citizen.
Any help would greatly be appreciated – I have finally paid off all my school loans and managed to save a downpayment for a house. A US tax lawyer has told me he can help me renounce – at somewhere between 20000-25000$. There goes my my hopes of a house.
@Phoenix22, The US Code section is 8 US Code 1481;
http://www.law.cornell.edu/uscode/text/8/1481
Your relinquishing act would be;
—
(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;
—
Based on your age, I assume you got the US Passport before you became a MD/DO.
As far as I would say, you work for your Province because you are a sole prop. Had you been a Corporation you would have been stuffed….in more ways than one.
In order to have relinquished you would have needed to know that you were a US Citizen, you would have need to know the US law that your post/employment with a political subdivision of Canada was a relinquishing act, that you voluntarily and intentionally committed that act with the intent of losing your US Citizenship.
If you can confirm the above and did not act like a US Citizen since then you relinquished your US Citizenship.
You would need to have proof of your employment/contract/post with the Province to establish the date.
You would then need to post facto swear an affadavit of the facts before a lawyer/notary.
It may be wise when you have a file together to get a legal opinion addressing the narrow question of your relinquishment and the date. I state request a narrow legal opinion!!
With that in hand, you then decide do you want a CLN backdated to your relinquishment. A CLN based on relinquishment has no fee attached to it.
A CLN is not required under US Law to relinquish but at least for a US born person is likely needed to enter the US on a non-US Passport.
Hope that helps.
But again your best protection in all seriousness is the ADCS lawsuit, please dig deep and donate regularly!! Also please tell your doc friends who are in the closet, we need your help!!
@Phoenix22, There are others here that know more than, I but I’m not sure a self employed MD that gets paid by the provincial health services on a fee for service basis is considered an employee of the province. I would be careful before assuming that.
I’m not clear about if there was government employment here. Were you employed by the provincial government or in private practice?
Also by any chance, were you a commissioned or non-commissioned officer in the military? That’s Immigration and Nationality Act, s. 349(a)(4)(b)
@George. I have been giving this some thought. The question about needing to know that you were a US citizen and that you were giving it up by taking the job, is troubling because of course most of us would not have been delving into the US immigration code for some light reading. However if you read carefully what it says is you have to have had the intention of losing you US citizenship. I feel like if you have always had the intention to lose your USC then you qualify. The law itself does not state that you needed to know. We are getting John Richardson to help in answering the sticky question on 4079 relating to if we knew or not. We may just reiterate there that we always intended to relinquish and have never done anything to indicate an interest in USC.
@SilverBirch ” The question about needing to know that you were a US citizen and that you were giving it up by taking the job, is troubling because of course most of us would not have been delving into the US immigration code for some light reading.
I know many people that know this is the case. Its clearly listed in your old US Passport that foreign government employment can cause loss of citizenship.
I often reread the warnings on my passport whilst waiting for a flight and otherwise bored at a departure gate.
@Cheryl, its actually very broad;
“Have accepted, are serving in, or performing the duties of any office, post, or employment under the government of a foreign state or political subdivision thereof;”
I would say that if the good doc was in private practice as a corporation, he would be stuffed.
@SilverBirch, ” The law itself does not state that you needed to know.”
What i said before…..
But the US Passport application is pretty clear and so is the passport issued to you. They warn you that employment et al can be relinquishing…..
To not know this, you would have to be blind!!