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.
Fortunately never had a US passport. So unfortunately never read that tidbit. This is why it is ridiculous that accidentals can’t simply go into the embassy and say, “thanks but no thanks!” We are less American than anyone else here but it is far easier for someone who grew up in the US and naturalized in Canada as an adult to relinquish. Does that make any sense? I will still argue for relinquishment based on having always had the requisite intention.
http://www.law.cornell.edu/uscode/text/8/1481
My 2c on the wording of 349(a) is I see it as three pronged: (1) you have to be a national of the US; (2) you have to voluntarily perform a potentially relinquishing act; (3) you have to know it’s a potentially relinquishing act in order to form the intention of losing the citizenship by performing the act.
As for having read the Immigration and Nationality Act prior to taking government employment, I agree — definitely extremely unlikely many people did. But one could have learned of this by word of mouth. Eg, I knew I could/would lose my US citizenship by naturalising long before the Citizenship and Immigration Canada officer told me that because I’d known it by word of mouth. When it comes down to it, we follow laws every day that we’ve never actually read but basically know by word of mouth.
So, I think the important thing is that the person had the belief their act could cause their citizenship to terminate (and that they intended it to) but not that they’d read the Immigration and Nationality Act. But the consulate might ask how the person learned this and, if was through conversation/s or whatever, then might then ask for more details about how they learned it, who they learned it from, etc.
Phoenix22. You are between a rock an a hard place. I’m not a lawyer but here goes anyway.
Being paid by the prov. gov’t would not qualify as a relinquishing act. Sole practitioners normally work for themselves; not the gov’t.
I see 2 options. Tell them nothing and get a new accountant and new F.I. . The Revenoors won’t worry you.
2). Spend the money required to become compliant, then renounce, then incorporate etc.
This option will cost $$$ in the short term me but will give you considerable peace of mind in the longer term. Good Luck. Consider a donation ( any amount) to ADCS.
@Phoenix22
Citizenship law is complex and we can only offer information we are aware of that may/may not be helpful to you.I was just looking into this a couple of days ago and pass it on.
http://travel.state.gov/content/travel/english/legal-considerations/us-citizenship-laws-policies/citizenship-and-dual-nationality.html
Disposition of Cases When Administrative Premise Is Inapplicable
The premise that a person intends to retain U.S. nationality is not applicable when the individual:
*formally renounces U.S. nationality before a consular officer;
*serves in the armed forces of a foreign state engaged in hostilities with the United States;
*takes a policy level position in a foreign state;
*is convicted of treason.
Cases in categories 2, 3 and 4 will be developed carefully by U.S. consular officers to ascertain the individual’s intent toward U.S. nationality.
http://www.state.gov/documents/organization/120540.pdf
c. The presumption stated in 7 FAM 1222, paragraph a, found in 22 CFR 50.40, that a U.S. citizen/noncitizen national intends to retain U.S. nationality applies when he or she accepts nonpolicy level employment in the government of a foreign state. (See 7 FAM 1285 for a discussion on what constitutes a policy-level position which the Department now construes as meaning a head of a foreign state.)
d. If a consular officer becomes aware that a U.S. citizen/noncitizen national accepted a nonpolicy-level position in the government of a foreign state and the individual does not advise you that his or her intent was to relinquish U.S. nationality, the administrative presumption of intent to retain citizenship applies.
7 FAM 1285 WHAT IS A POLICY-LEVEL POSITION WITH A FOREIGN STATE?
a. Except in a head-of-state or foreign-minister case, we will not typically consider employment in a policy-level position to lead to loss of nationality if the individual says that he or she did not intend to lose nationality.Each policy-level position case, however, is fully evaluated on a case-by-case basis.
Thanks everyone so much for your comments.
I have never thought off myself as American as I was born and raised here. My birth certificate is Canadian. The only one time I used my US passport to see family in the US was in 2000, I returned to Canada and the Canadian border agent hassled me so bad, demanding I produce my Canadian passport and that I should ALWAYS travel on it. I felt fraudulent even having a US passport. so I put it away and decided to always live life as a Canadian (I guess I renounced to myself in my head) Then I went to med school, became a physician, worked, paid taxes, voted and never have I done any of these things or lived, in the US. I have travelled extensively on my current and 2 expired Can passports, so yes I have not ever acted like a US citizen.
I work in a provincial health facility that is maintained and paid for by the province. Payments to me are made by Alberta Health Services. I do bill them for service so I am not sure if this qualifies for the employment part. I have not been in the military.
I agree all my options are not good, I just wanted to know all of them so I can make the best decision. Plus I want to be knowledgeable to deal with the lawyers…I found them more anxiety inducing.
@Duke of Devon
I would be happy to donate depending how far the lawyers set me back…
I wonder if I end up broke, get a bus ticket to the US and ask for unemployment how likely I would be to get it. So I am unsure why I must pay for the benefit of this citizenship that I have never participated in nor wanted.
I also did not tell my accountant; I bid some time with my FI. This has been incredibly ethically and morally challenging for me.
Important also to note that the administrative presumption is a rebuttable one.
So, if it’s a non-policy-level position, the administrative presumption is that you did not intend to relinquish, but you can rebut that. It’s the same for all relinquishments under s. (1) (naturalisation) – the administrative presumption is that you did not intend to relinquish, but you can rebut it.
Judging from the reports we get here, it seems that a very small percentage of people who’ve relinquished had the administrative presumption on their side. In fact, I don’t think any of the four or five s.(4)(govt employment) Brockers who got CLNs had policy-level positions. And we’ve had dozens of s. (1)s. But with one exception, we’ve all successfully rebutted the presumption.
Phoenix.. If your finances are straightforward, then the price quoted seems high. You could do it yourself but it’s probably cost effective to pay someone else to do it. Be careful, there are some accountants just lying in wait for you. There is a Calgary name that comes up repeatedly.
Sounds to me like you don’t want to renounce. But it will always lurk at the back of your mind. in my opinion better to get it out of the way before your life gets more complex.. P.s. Incorporating your practice, which is not advisable for Americans, will save you a lot more than 20 K if done properly.
Phoenix22,
If you did not tell your accountant then keep it that way and don’t tell your FI. You have a Canadian place of birth – you are indistinguishable from most other Canadians unaffected by FATCA, which is an immoral and unjust law. Don’t tell any bank or FI about your US Personhood and they will have no way of ever knowing. The US government is acting in a criminal fashion, trying to tax money on which it has no legitimate claim. The USA fought a war to become a nation
over unjust taxation of persons abroad by England and now they are doing the same thing!
You will only be hurt by the US if you come forward and offer yourself up to them. Remember what Dr. Martin Luther King said about unjust laws: one has a moral responsibility to disobey them.
You don’t owe the US a single cent, nor any compliance condor. Please help fight this injustice by
donating to the ADCS.
Phoenix. I had a phone conversation with a former deputy IRS commissioner and chief of their CID. His wisdom was that these decisions are not moral or ethical decisions. He said they are business decisions. You do what’s best for you.
@Phoenix22 says
“My accountant and MD management have both asked me if I am US citizen.”
You are a Canadian citizen living/working in Canada. My answer would be, “I am Canadian.”
I’m a fellow MD. Given that you have a birth certificate that says you were born in Canada, I personally wouldn’t waste my time and money renouncing. Your cover is deep enough that they (banks, IRS) won’t find you. Continue travelling on the Canadian passport, put the expired US passport away in a box and don’t renew it, live your life as a Canadian, and you’ll be fine. Those are my thoughts anyways.
I hate to be the contrary opinion here but what about the SS number which Phoenix’s mom obtained for her? Isn’t that going to be a way of finding her when the US gets hungry enough for Canadian cash? I would spend a bit of money now to get out while you can. Once you have assets (especially business ones) it will be harder. But it probably could be done cheaper, than the figure you quoted. Should just be tax filing costs and renunciation fee.
@Silver birch
Does the IRS have the resources to track down millions of people of unknown assets across the world through SSN’s? I don’t know but I doubt it. The only way that they can make of target of someone is if they know someone’s financial assets, via FATCA reporting. Thus the importance of never allowing (if possible) your bank or FI to know that you are defined by the US as a “US Person”.
You raise a valid concern but I still think that Phoenix22 is in a relatively good position with a Canadian place of birth. It is so sad that FATCA will harm those who are innocent and honest. Someone once wrote about FATCA:
“When injustice becomes law, resistance becomes duty”
Totally agree that we have to do all that we can to resist the injustice here. But there are costs to this resistance. I personally don’t feel comfortable with travel to the US because of lack of compliance with the law as it stands. Each person will have to decide for themselves but, for myself, if there was an easy way out I would take it. For an MD it makes a lot of sense to incorporate but not with this hanging over your head. There’s another price for your non compliance. Retirement savings are another. If you are trying to fly under the radar would you still try to set things up so that it would be relatively easy to file if one day you were forced to?
Phoenix was born in Canada. He has no serious problem unless he chooses to manufacture one. On the other hand Silver Birch was born in the US but never thought he was American. Much harder to deal with. Both should remember that the IRS is over worked, underfunded, dysfunctional, inefficient and therefore forced to concentrate on the big fish.
@Silver Birch
“If you are trying to fly under the radar would you still try to set things up so that it would be relatively easy to file if one day you were forced to?”
As my accountant says “you can’t suck and blow at the same time”.
If you can make a convincing argument that you didn’t know about your tax filing obligations while arranging your financial affairs to look like you haven’t taken evasive action, then all the power to you. Unless you have nerves of steel, or have the legal expertise to do this I wouldn’t recommend it. But that’s just me.
Twain wrote this for simple folks like me: never tell a lie, and you won’t have to remember anything.
While I would agree with Duke that the IRS is overfunded, etc., every now and they there are overzealous staffers looking for a kill. So if SilverBirch is US born, with a SSN, and some auditor found out that SilverBirch is an incorporated MD making something like $300-500K or more a year, there might be some nasty letters. Others would know much better than I re how cooperative Canada would be with the IRS in such a matter.
On the other hand, Pheonix’s SSN is meaningless unless he/has ever filed US taxes. Nowadays everyone US resident as well as citizens end up getting SSNs, even though a good proportion (at least 30%) never work. A good number of those are temp residents with no GC who return to their countries with no further tax obligations to the US. There are now tens, more likely hundreds, of millions of non-US persons who possess SSNs. The IRS certainly does not track them.
Silver birch doesn’t have a SSN or passport. They don’t know he exists.His issue is with MD management.
@TokyoRose
Thanks for the helpful SSN info. (I don’t have a SSN) – useful to know.
@Silver birch
Yes, each person has to decide for themselves but the unfairness of the USA’s tax and renunciation laws does not give us any easy way out. There is risk in any course of action chosen.
I am concerned that you are at risk for having (?some) of your accounts at MDM being reported (RRSP’s, RESP’s and TFSA’s are not supposed to be reportable accounts – if that’s all you have with them then you may be OK but I would not want to be given a W9 form – that’s the form for US Persons). I would strongly suggest following George’s advice on Oct 30 re. not being a US citizen and making this case to your MD adviser. I would do whatever you can to reverse their designation of you as a US Person.
@Mr. A. Yes we are in the process. As I posted here somewhere else, the accounts will be reported unless we can provide them with adequate proof that we are not US persons before the end of the year. We are hoping to have a self declaration citing government employment drawn up soon. There isn’t a hope of a CLN any time soon. If they don’t accept what we have we will be moving our funds elsewhere, before the end of the year. Maybe to a local client base credit union?
Silver Birch. I wouldn’t take the chance. I would move them ASAP. Surely MD doesn’t deserve your trust. You can move to a credit union and park your funds their while you look for a better arrangement .
Haven’t we heard that FIs must report reportable accounts even if they are closed after July 1 2014?
I wave in writing from a reporting credit union that they must report accounts that existed before July 1 2014 the account balance on Dec 31 2014 (not the highest balance that existed). That’s interesting.
So, withdraw it all and put it under your mattress over the end of June and end of December time periods and put it back in after?
Here it is:
Our reporting requirements are:
•May 1, 2015: First reporting – for year-end 2014 balances (only for accounts > $1 Million at June 30, 2014 and new accounts opened July to December 2014)
•May 1, 2016: Second reporting – for year-end 2015 balances (all accounts > $50 thousand USD at June 30, 2015; for entity accounts, such as businesses, corporations and trusts this threshold is $250,000 USD)
Thanks again for all the salient points. So far the few people I have broached this problem with in my profession are sympathetic but cannot understand the dilemma I am in so I am very happy to hear from others. Though I am so very disturbed at how many good Canadian people’s lives this is affecting.
I completely concur I have to look at this as a business decision. Which can be hard to do
Staying quiet option I have considered; we all have to decide what our tolerance is. I have the rest of my life and I am uncomfortable already signing forms that I have only one choice – a tick box that says “are you a US citizen”
I also travel to the US for medical conferences and to connect for holiday vacations. I wonder if they would ever get their systems all together to catch my name at the borders/airports. Down the road if I ever wanted to retire or winter there, and I had never come forward, I worry they could catch me then if I had to get a new SSN and I was already in the system.
I cannot see any other benefit to back filing and going forward as a USP option. What it will do in terms affecting the outcome of my financial life and retirement is too high. I would pay ++ to file taxes every year, not be able to benefit from incorporating and have trouble having a TFSA and RRSP, no Canadian mutual funds.
Last option – relinquish/renounce which will be costly. I also worry about entering the states afterwords, if this will ever become a problem; I hope unlikely because I will travel on my Can passport and really be able to say “No, I am not a US citizen”. If I wanted to retire there, I would just do it as a Canadian.
But as we have all experienced this is not just business, we all have emotional issues with it, the ethical and morality. I can’t imagine letting the IRS see my info for the past 5 yrs, not because there is anything amiss, it just it is such an invasion of my privacy. Not to mention, my Mother passed away this summer, I asked her when she was dying to please forgive me for what I might to have to do. She loved her country, but she knew things have changed and it was not the one she grew up in and loved. There is no doubt this has affected me even while trying to make this a rational decision.
I cannot believe how FACTA has come into our homes and our lives and the issues it is causing.
@WhatAmI, this is very interesting. Here’s an example for reporting a low value account that I got from the CRA site for timing of reporting.
On June 30, 2014, a financial institution determines a particular depository account is a lower value account (for example, the balance of the account exceeds US$50,000 but is less than US$1,000,000). The financial institution completes due diligence procedures on the lower value account in March 2015 and determines that the account is held by a specified U.S. person. On December 31, 2015, the balance of the account is US$42,000. The financial institution is required to report the account with respect to 2015 on a Part XVIII Information Return filed with the CRA before May 2, 2016.
I think this means you report the lower value but it’s still reportable??
@Cheryl
Yes, your quote pretty much matches the credit union’s statement with respect to using the year-end balance (having already decided it was a reportable account at June 30 previous).
I found this in the IGA as one of the required bits of information to be reported for each “U.S. Reportable Account”:
That verifies my recollection of reportable accounts. The MD here would seem to be in a bind. They already know or suspect that he’s a USP, and are asking him the question. If he refuses to answer, or if he moves his money, the MDM FI is obliged to report him anyway.
Note it says “end of the relevant calendar year or other appropriate reporting period”. So, like the $50K reporting threshold and many other details, you can’t assume anything for any given FI until they publish what they’re doing.
This is what my financial advisor told me when I asked about the timing of their reporting requirements. I read it that I have until December 31, 2014 to not be their client anymore if they reject my reasonable cause for why I don’t have a CLN:
Reporting to CRA in 2015 can be avoided if we have acceptable documentation on file prior to 2014 year-end indicating why a client is not to be considered a U.S. citizen. Here is some information on this point, including the type of information we will have to share with CRA (this wording is apparently taken straight out of the Canadian Inter-Governmental Agreement with the U.S.:
When the indicium found is an unambiguous indication of a U.S. place of birth, the account must be reported unless the financial institution obtains or currently maintains a record of all of the following:
1. a self-certification showing that the account holder is neither a U.S. resident nor a U.S. citizen;
2. evidence of the account holder’s citizenship in a country other than the U.S. (for example, a passport or other government-issued identification);
3. and a copy of the account holder’s Certificate of Loss of Nationality of the United States or a reasonable explanation of why:
• the account holder does not have such a certificate; or
• the account holder did not obtain U.S. citizenship at birth.
Information to be shared for the 2014 tax year (reported May 2, 2015) is:
1. Name
2. Address (home residence)
3. U.S. TIN (Tax Identification Number) i.e. SSN (if no US TIN on file then date of birth is required)
4. Canadian TIN (Tax Identification Number) i.e. SIN
5. Account number
6. Account balance or value
I assume if there is no longer an account, they have no reporting requirements.