Commenting on the last post “Although citizenship matters, not all citizenships are the same. Americans are just different …“, Tim Smyth writes:
I am usually not one for optimism but I think Sophie In’t Veld latest response back to the Commissioner which literally came after one day from the Commission’s original response is very much on target and has dramatically reduced the Commission’s room for maneuver. To give some background I am a huge fan of Sophie’s and acknowledge she has been involved in this issues for a better part of 10 years(almost as long as me personally) however, she is not directly related to these issues on a personal level like we are and it has taken some time up until recently for her and her staff to understand this stuff the way “we” understand it. Thus I feel her latest response is an important sign that there is at least someone in elective office somewhere that truly understands these issues the way “we” understand it. (To give some background much of Sophie’s early work on these issues was passed on privacy law and data protection which is her bailiwick more than taxation or nationality which is not. You can see however she has become much more educated on taxation and nationality in recent years).
In terms of what comes next I think there are a couple possibilities. At this point the Commission has some real decisions to make with real political consequences.
1. The Commission can simply decide to respond back to Sophie and blow her off. This might be the “Safest” option but they have not taken this option to date in previous rounds of questioning and institutionally they might feel that pure insubordination is non viable.
2. Say the US can impose CBT but no other “third” country can. Again I am not sure how successfully this can be spun without looking like complete stooges of the US. Also there is not any legal justification I can think as to why the US can impose CBT but no “other” state can under international.
3. Say everyone can impose CBT and define “their” citizens however they wish under international law. This is the logical followup to Commissioner Gentiloni previous response and one that has the most sound basis under international law if you believe the US is entitled to impose CBT under IL however, it would obviously be a practical, political, and logistical nightmare. I will discuss later what are some of these implications
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The purpose of this post is to explore various aspects of the concept of citizenship seen through the lens of international law. This is an interesting topic in it’s own right. (It is particularly important in the context of Cook v. Tait.) A basic assumption of the Harter and Gentiloni letters is that the it is the sovereign right of the United States to define who its citizens are. The problem becomes when the United States defines European citizens as US citizens, when those US citizens are residing as European citizens in Europe.
The following questions come to mind:
1. Under what circumstances can the United States expand it’s definition of a U.S. citizen in an extra-territorial manner?
2. Under what circumstances can the United States apply its laws to European citizens living in Europe?
3. How does the assumption that countries are fee to define its citizens operate in a world of dual citizenship?
4. Under what circumstances does the sovereign right of the United States to define who its citizens are encroach on the right of European countries to define its citizenry?