Category Archives: Issues regarding US persons abroad

http://www.parl.gc.ca/CommitteeBusiness/CommitteeHome.aspx?Cmte=FINA&Language=E

This time though the submissions are basically open ended. You can talk about whatever the hell you want as long as your format it a certain way.

The Standing Committee on Finance is undertaking its annual pre-budget consultations. Following these consultations, it will present a report to the House of Commons outlining its recommendations for the 2014 federal budget.

Individuals and groups are invited to take part in these consultations by completing the Committee’s online template no later than August 5, 2013. Only one submission per individual or organization can be made..

To take part in the consultations, you

• must use the template published on this page

• must propose between one (minimum) and three (maximum) recommendations

• may provide up to an additional 500 words that elaborate on your recommendation(s) in the space reserved for that purpose on the template; and

• must submit the completed template no later than AUGUST 5, 2013.

An acknowledgement of receipt will be provided as soon as the Committee receives your completed template.

The completed templates will be translated and posted on the Committee’s website.

NOTE: TO BE CONSIDERED, ALL RESPONSES MUST BE PROVIDED USING THE ONLINE TEMPLATE AND SUBMITTED BY THE DEADLINE.

Earlier today, the Handleszeiting posted a wonderful article critical of America’s treasured national origin discrimination titled:

Amerikanische Bürger: Herkunft als Hürde
American Citizens: National Origin is a Hurdle

Shortly afterwards, this was picked up by Die Welt with a much more fitting title:

Fiskus vertreibt US-Bürger aus der Schweiz
The Treasury is ethnically cleansing US citizens from Switzerland

Then, America woke up and immediately the title changed, shifting the blame:

US-Bürger in der Schweiz geben ihre Pässe ab
US Citizens are turning in their passports

The article mentions that the US embassy in Bern refuses to be honest and transparent about the number of Americans who are turning in their passports.

Laut Schätzungen der amerikanischen Gemeinschaft haben letztes Jahr 700 bis 900 US-Bürger in der Schweiz ihren Pass abgegeben.  Die Botschaft in Bern will diese Zahl nicht kommentieren.

According to estimates made by the Amerian community, around 700-900 American citizens in Switzerland gave up their passports last year.  The Embassy in Bern does not want to comment on this number.

I received this email from my Enrolled Agent today!

”

Dear Valued Client,

The IRS and the Financial Crimes Enforcement Nework (FinCen) announced on Friday that paper FBARs will no longer be acceptedas of today, July 1, 2013. If you have not filed your 2012 FBAR yet and you intend to file it yourself, you will need to create an account at FinCen’s Bank Secrecy Act (BSA) e-filing website http://bsaefiling.fincen.treas.gov/main.html to file your FBAR. After you create your account you will be given a PIN code. You must then logon to the website whose link you will receive via email, click on the FBAR link on the left side of the website and manually enter all of your FBAR data into the writeable pdf version of their FBAR form. I recommend you also save the FBAR to your computer before you click the button to e-file it.

Professional tax software programs are not yet capable of e-filing FBARs so professional tax preparers must manually enter your FBAR data into the FinCen website. We will be happy to do this for you, however due to the additional work and time involved, we must raise our fees for FBAR preparation to CHF 20 per account if we e-file the form for you. We will also just prepare a paper FBAR for you that you may copy into the FinCen website for our normal fee of CHF 10 per account.

The professional tax software companies are frantically working on a solution to allow professional tax preparers to e-file the FBARs directly from our software. As soon as such a solution is in place, our FBAR preparation and e-filing fee will return to CHF 10 per account.

Best regards,

“

With thanks to tiger who alerted me to this, I am linking two posts authored by Stephen Flott of Flott & Co. PC The Accidental US Citizen. It furthers discussion we have been having here on these very questions for “Accidental Americans.”

[If the following legal opinion is correct, finally I will have done something right (in the US realm) for my developmentally delayed adult son by not having registered his “US Birth Abroad.” And, if this is true, I’ve just ducked damage by a major flood in southern Alberta and nonsensical US tax and reporting compliance for my son for the rest of my life and his — my good KARMA vessel is getting low. Of course, this is just one subset of those deemed “Accidental Americans.” In my common-sense view, NONE of ‘supposed’ US Persons Abroad who are somehow classified as “Accidental Americans” who had no choice to whom they were born or where they were born should be caught up in the absurdity. The only way to solve that is a change by the US to Residence-Based Taxation. Let’s get real; let’s get fair.]

Accidental American – US Citizenship: Self-Executing or Not? (May 23, 2013)

Ms. X was born in the United States. She is a US citizen by birth. Her US citizenship is self-executing and non-consensual. Her birth certificate is all that is needed to establish her citizenship.

Let’s say she goes to Canada and enters as a landed immigrant. Her entry into Canada as a landed immigrant is not itself an expatriating act. Section 349(a)(1) and (2) of the Immigration and Nationality Act provide that swearing an oath of allegiance to a foreign sovereign is an expatriating act if taken with intent to set aside US citizenship. As soon as Ms. X swears the Canadian citizenship oath before a Canadian Citizenship Court, she will become a Canadian citizen. If she swears the oath with intent to set aside her US citizenship, she will then complete a Form DS-4079 and establish that she relinquished her US citizen upon becoming a Canadian citizen. Her oath of allegiance to Canada is sufficient when combined with her statement of intent to extinguish her US citizenship. However, the mere fact of becoming a landed immigrant is not sufficient as it does not involve the taking of an oath of allegiance and thus, by itself, is not sufficient to expatriate her.

Mr. Y was born in Canada to a Canadian father and a US citizen mother who resided in the US long enough to give her the right to pass on US citizenship to him. However, his mother takes no steps to register his birth abroad or otherwise assert US citizenship and he has not done so either. Mr. Y is not a US citizen automatically, that is, his citizenship is not self-executing. The language in the Section 301(a) states: “The following shall be nationals and citizens of the United States at birth:” [at which point the section lists seven subcategories, including subsection 7 dealing with children born outside the United States “of parents one of whom is an alien, and the other a citizen”]. Most people, including virtually all US lawyers interpret the “shall” to be mean Mr. Y automatically became a US citizen at birth.

However, I believe that “shall” in the context of subsection 7, where one of the child’s parents is not a US citizen and the child has obtained citizenship by birth or heritage of a country other than the United States, to mean that the child has the absolute right to US citizenship upon providing adequate proof of his heritage AND that his US citizen parent meets the residence requirements of the section.

However, Mr. Y’s citizenship is not “self-executing”. Someone must do something to establish his citizenship. His mother did not obtain a certificate of registration of birth abroad before Mr. Y turned 18 and cannot now do so. Mr. Y has not yet sought to assert US citizenship by obtaining proof of same which he would do by obtaining a US passport. That process would require him to present evidence of his US citizenship. He is, of course, free to do that at any time he wishes. However, until he takes some action, his US citizenship in an “inchoate right”, that is, something that he can assert and cannot be taken away from him by the US government. Clearly, he must be a “citizen” to obtain a passport. However, being “entitled” to citizenship is not the same as “being” a citizen. In other words, US citizenship in Mr. Y’s case is not self-executing.

In the absence of any action taken by Mr. Y, the question then turns to whether the US government could force him to obtain a US passport. Indeed, there is no case in which the US government has forced a person in Mr. Y’s position to obtain a US passport. Thus, the “automatic” citizenship position fails. The real question turns on whether US citizenship for those born outside the United States is mandatory. Clearly, it is not.

As a practical matter, Mr. Y has nothing in his official citizenship file in the United States. His Canadian passport indicates a place of birth in Canada. Thus, there is no outward evidence that he is a US citizen and, in the absence of obtaining a US passport, nothing to identify him as a US citizen. Both as a legal and practical matter, Mr. Y is not a US citizen and is not identifiable as a US citizen. He may, of course, choose to apply for a US passport and will undoubtedly obtain one should he do so.

and

Citizenship Article Series: US Birthright Citizenship (June 13, 2013)

Birthright Citizenship — The Absolutely Clear Case

All persons born within the borders of the United States are citizens. It does not matter if their mothers were in the U.S. legally (as tourists, for example) or illegally, or whether the children leave the United States the day they were born. It bears repeating: all persons born in the U.S. are automatically citizens. This is the absolute citizenship situation.

I left this comment, which is awaiting moderation:

calgary411 | June 29, 2013
Your comment is awaiting moderation.

Thank you for this blog entry. We are discussing the very same at Comments. I will post as a new thread your above article. I am awaiting confirmation from Sylvia D. Johnson, General Consul, US Embassy in Ottawa, Canada that advice given in three instances as reported at Isaac Brock is indeed correct — that they do not have to go through the process to obtain US citizenship if they were not registered as births abroad to US parents to then be able to renounce that US citizenship.

We all (especially “Accidental Americans” born in a country abroad to US parent(s) but not registered as US births abroad) need absolute clarification on if there is an OPTION of US citizenship, to not be blindsided by the US further down the line (worst-case scenario). I want to know:

Is a person born abroad to US parents (with all the time definitions) automatically a citizen from the time of birth?
OR
Does that person have to a claim to US citizenship if he/she so chooses upon becoming an adult?

I know that many don’t think this necessary, but I’d rather go forward with an absolute answer. I just think a big segment of US Persons Abroad should not have to find work-around’s to live normal lives in other countries. Why don’t we absolutely know?

Due to slow progress in signing IGA’s. Will this happen. I say its 50/50. IRS/Treasury probably listens to SIFMA more than any other group because of its domestic US political influence. Its also very notable that SIFMA is pointing to a long list of very specific promises by made the IRS to the banking industry that have not been met on time at all. SIFMA is also basically predicting a huge mess come January 1 2014 if the IRS goes ahead at this point.

Will there be a change in the effective date. As I said its 50/50. The IRS might also feel this is a now or never moment.

http://t.co/j3LS5jC9i0