The Man (Or Woman) Without A Country

Over the last two years, the number of U.S. expatriations has skyrocketed. For 2013 alone, the number of Americans renouncing their citizenship has increased to 221%. As shocking as this statistic might appear, according to those in the “know,” it is grossly understated. This has inspired many to call the trend, “Ellis Island in reverse.”

What has caused so many to resort to something as extreme as renouncing their U.S. citizenship? None other than the usual suspects, or what I like to refer to as the “dynamic duo” (for all you “Batman” fans): the United States’ system of worldwide taxation, on the one hand and FATCA, on the other. While I could go on endlessly about the harmful effects of global tax reporting and FATCA, the purpose of this blog is to discuss the steps that must be taken in order to expatriate.

Back in the salad days, and we’re talking about the George W. Bush years, renouncing U.S. citizenship was a relatively simple affair.

But then Facebook co-founder Edurado Saverin renounced his citizenship and became Singaporean, where he had been living for the past three years. In response, New York Sen. Charles Schumer and Pennsylvania Sen. Bob Casey co-sponsored the cleverly-titled Expatriation Prevention by Abolishing the Tax-Related Incentives for Offshore Tenancy Act, or “Ex-PATRIOT Act,” which would have made it easier to prosecute expatriates as tax cheats.

That bill went nowhere, but then the “suits” in the State Department grew weary of seeing a steady stream of dollars flowing overseas. So, last summer, the government raised the filing fee a whopping 422 percent, more than twenty times the average level in other high-income countries. Officials explained that the increase was meant to offset the extra payroll costs involved in processing paperwork. Specifically, the State Department justified the fee increase on the increased labor costs needed to keep up with the growing demand of U.S. citizens attempting to shed their U.S. citizenship. And if you believe that one, I have some oceanfront property in Kansas that’s a great investment opportunity and priced to move.

There are some other hoops to jump through. According to the new State Department rule, the potential renunciant must sit through two “intensive interviews” with Consular officials. That sounds a bit ominous, but I have it on fairly good authority that no waterboarding is involved. As if the process did not already impose enough barriers to discourage would-be U.S. citizens from renouncing their citizenship, leave it to the government to create another one. Local officials no longer have the authority to remove citizenship. That must be done by a “higher-up” in Washington from the Directorate of Overseas Citizens Services, who if I had to guess is a “bureaucrat.” Only with this person’s blessing will the case be returned to the Consular officer overseas for delivery of the Certificate of Loss of Nationality to the renunciant.

Finally, the renunciant must clearly understand all the ramifications of giving up U.S. citizenship, including loss of the right to reside in the U.S. without documentation as an alien. We’ll get back to that in a minute.

How Does It Work?

First and foremost, renunciation is permanent. If you’re thinking that you can move to Brazil for a few years until the Republicans lower the capital gains tax, and then move back to your brownstone in Brooklyn, think again. For those who are thinking about renouncing citizenship, and there are some perfectly good reasons for doing so, my advice is to sleep on it.

There are some specific qualifications.

• It may seem like a no-brainer, but you must be a citizen. It’s not unusual for undocumented immigrants to try and “renounce their citizenship” and return to their home countries as a back-door way to make their dependents eligible for lawful status or to stay one step ahead of ICE.
• You must show five years of tax compliance. That means no outstanding forms, no known tax problems, and no balance due.
• Wealthy individuals must pay an exit tax. If you have a net worth of greater than $2 million, or have paid an average of about $157,000 in taxes for the last five years – the specific amount is tied to inflation – the IRS will hit you with an expatriation tax. The Service considers all your property sold, and you must pay the dreaded capital gains tax on that amount. Contrary to popular belief, long-term residents surrendering a Green Card must also pay the exit tax. Thankfully, there is an exemption, but don’t get too excited. It only applies to those who own assets in the seven figures. For 2014, the exemption amount was $ 680,000.

All this must be done at a foreign consulate. You must appear in person. It cannot be done by mail or through an agent.

Why Do It?

I would be disingenuous if I didn’t acknowledge that there are drawbacks associated with renunciation. While some are obvious, others aren’t. This is why a decision to expatriate should never be taken lightly. For starters, you cannot visit the United States without a visa. Not only would you have the hassle of all that paperwork, possibly multiple times a year, but there would also be no possibility of an emergency or spur-of-the-moment visit. You are also quite literally a person without a country. If you have a legal dispute, the courts may be closed. If you have a situation that requires favorable action from a government official, no office holder will care. In a similar vein, renunciation cannot erase back taxes or criminal liability.

There is obviously a significant upside, or people would not be lining up in droves to take the “un-oath” of renunciation. The United States is one of the only countries left in the world that taxes its citizens on their worldwide income regardless of domicile. Live and work in Rio De Janeiro? You must pay taxes to the U.S. government on your foreign-source income. Own a business in Bangladesh? The U.S. will tax the money that you earned there, too. Of course, the U.S. system of worldwide taxation is tamed (somewhat) by the foreign earned income exclusion and the foreign tax credit.

As one attorney put it best, it is like Fatal Attraction: The U.S. never allows you to leave the relationship. You have to walk away yourself, either by dying or renouncing citizenship.

The lack of future tax liability is about the only benefit to renunciation, but it is enough, in the mind of many, to outweigh all the drawbacks.

Original Post By:  Michael DeBlis

As a former public defender, Michael has defended the poor, the forgotten, and the damned against a gov. that has seemingly unlimited resources to investigate and prosecute crimes. He has spent the last six years cutting his teeth on some of the most serious felony cases, obtaining favorable results for his clients. He knows what it’s like to go toe to toe with the government. In an adversarial environment that is akin to trench warfare, Michael has developed a reputation as a fearless litigator.

Michael graduated from the Thomas M. Cooley Law School. He then earned his LLM in International Tax. Michael’s unique background in tax law puts him into an elite category of criminal defense attorneys who specialize in criminal tax defense. His extensive trial experience and solid grounding in all major areas of taxation make him uniquely qualified to handle any white-collar case.

   

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13 comments on “The Man (Or Woman) Without A Country

  • Compare the drawbacks you mention with that of being discriminated against as an American abroad, and you’ll see why people are being driven to do it.

    Even if one perfectly integrates, there’s always the fear employers have that they’ll be caught in some tax dragnet if they employ you. Same with business partners. Call it ‘Fear of the 5471’.

    The established players who can afford to by a Congressman want international business for themselves. But will this be enough to keep the US economy going? Right now things are going well for the US, buoyed by cheap oil. But when the going gets tough, the US will wish they hadn’t clipped the wings of their citizens abroad, simply to play righteous with Joe Six-Pack at home.

  • Michael, thanks for this post. On first read, a few things regarding your
    “There are some specific qualifications.”

    • It may seem like a no-brainer, but you must be a citizen. It’s not unusual for undocumented immigrants to try and “renounce their citizenship” and return to their home countries as a back-door way to make their dependents eligible for lawful status or to stay one step ahead of ICE.
    YES THE FIRST STEP SHOULD ALWAYS BE TO FIND OUT IF YOU ARE INDEED A US CITIZEN — What you should do BEFORE contacting a lawyer: http://citizenshipsolutions.ca/2013/07/10/what-you-should-consider-before-contacting-a-lawyer/

    • You must show five years of tax compliance. That means no outstanding forms, no known tax problems, and no balance due.
    ANY QUESTION ABOUT TAX COMPLIANCE IS NOT AND SHOULD NOT BE ASKED AT AN APPOINTMENT FOR RENUNCIATION (Department of State) — OR AT AN APPOINTMENT IN WHICH YOU ADVISE OF YOUR PRIOR *RELINQUISHMENT*.

    • Wealthy individuals must pay an exit tax. If you have a net worth of greater than $2 million, or have paid an average of about $157,000 in taxes for the last five years – the specific amount is tied to inflation – the IRS will hit you with an expatriation tax. The Service considers all your property sold, and you must pay the dreaded capital gains tax on that amount. Contrary to popular belief, long-term residents surrendering a Green Card must also pay the exit tax. Thankfully, there is an exemption, but don’t get too excited. It only applies to those who own assets in the seven figures. For 2014, the exemption amount was $ 680,000.

    AVOID *COVERED EXPATRIATE STATUS*
    Regardless of your financial status, you are not a “covered expatriate” if you satisfy all of the following items [see Section 877A(g)(1)(B), Notice 2009-85, Section 2(B)]:

    You became a U.S. citizen at birth; and
    You also became a citizen of another country at birth; and
    On your expatriation date you “continue” to be a citizen of that country; and
    On your expatriation date you “continue” to be taxed as a resident of that country; and
    On your expatriation date you were not a U.S resident for 10 of the 15 tax years that end with the year that you expatriated.

    Note, however, that you will still have to certify that you are up to date with all U.S. tax requirements. Failure to do so will render you a covered expatriate even if you satisfy all of the dual citizenship requirements. See IRS Form 8854 Instructions: http://www.irs.gov/instructions/i8854/

    • Expatriation must be done at a foreign consulate
    Expatriations are done by appointment at a U.S. Consulate or Embassy outside the U.S.

    AND

    Most expatriations now are completed in ONE VISIT ONLY. The two-visit scenario is a thing of the past — unless the Consulate officials deem a necessity in that a person might not understand what they are doing. BELIEVE ME, most who will be renouncing at a cost of $US 2,350, will be very aware of what they are doing.

    Further links for research:

    1) http://isaacbrocksociety.ca/department-of-state-forms-and-procedure-manuals-for-renouncingrelinquishing/

    2) http://isaacbrocksociety.ca/how-to-renouncerelinquish/

    3) http://isaacbrocksociety.ca/consulate 2/ “Consulate Report Directory (Brockers Describe their Consulate Meetings) and Certificate of Loss of Nationality (CLN) Delivery Time Chart

    I hope some of this information helps.

  • You failed to mention many folks are renouncing because they are increasingly unable to bank, mortgages are being cancelled and they are being fired from their jobs. You also forgot to mention 6 years of FBAR filing to renounce and the bankrupting penalties for form delinquency. Including the need to provide the IRS with more information than US residents must and file these reports to the financial crimes unit. After all, having a checking account to pay the rent is now deemed a criminal activity and you are suspect.

    Many long term US deemed citizens living outside of the country have a second passport. Hopefully they can afford to remove the shackles of the little blue one. Given the current toxic relationship between the US and its deemed citizens abroad, unless there are loved ones in the US that cannot visit them abroad, most have absolutely no interest in setting one foot on US soil ever again until CBT/FATCA are rescinded and an apology given. Most of these alternate passports allow visa free entry to the US if one MUST go.

    The US has created yet another group that has no love lost for the US, this time it is their own people. They have launched several lawsuits and registered a human rights violation against the US at the UN. This group will not go away quietly nor take this abuse without an ernest battle. The single largest threat to US deemed citizens abroad is the US government. They should be beyond ashamed. No other nation on earth abuses its emigrants in such a fashion.

    My sense is the US might consider repealing FATCA/CBT when it finally wakes up and realizes the hurt it is causing US exporters or the GATCA nations start shunning the US for lack of reciprocity. This will do nothing to salve the hurt caused to these innocent folks as the driving force will remain US greed not concern for their law abiding, hard working middle class citizens living outside the country and banking where they live to pay the bills. (AKA “tax cheats” to homelanders).

    • Why?? I’m puzzled about the motivation to implement this draconian legislation. I suspect it’s more than just the gov’t trying to close the “Tax Gap”. Is it the logical result of an ever-grasping gov’t on the road to Big Brotherhood? Gov’t knows that (for now) the universe of folks that suffer the injustices wrought by FATCA enforcement is relatively small. Joe 6-pack views FATCA’s victims as fat cat tax cheats that are getting their comeuppance; there’s no outcry from the gen’l public because the gen’l public is unaffected and unsympathetic. So gov’t implements and enforces unconstitutional legislation because it can. Is it that simple? Have i duped myself into looking for complicated reasons “why”? Do i suspect elaborate conspiracies where there are none, save gov’t’s inexorable march towards totalitarian control of its citizenry?

      I’d be interested to hear what others think about the whys and wherefors of FATCA!

  • Thanks for covering renunciation issues in your articles. I have a few points about this one.

    (1) Re: “According to the new State Department rule, the potential renunciant must sit through two “intensive interviews” with Consular officials.”

    This sounds odd, counter to what is occuring at renunciation appointments, and it does not appear to be in the current edition of the Foreign Affairs Manual.

    The meetings still seem to be running about 15 minutes — basically along the lines of are you sure you understand the consequences and making sure all your documents in order, which is consistent with what is required by 7 FAM 1262 and really more bland than intensive.

    Regarding number of interviews, in practice State Dept leaves it to the consulates to choose to require one or two. I’ve noticed since 2011, since the upsurge in renunciations, a trend of consulates switching to one meeting (particularly in Canada and Europe) although some require two.

    7 Foreign Affairs Manual 1260, Renunciation of US citizenship
    http://www.state.gov/documents/organization/115645.pdf

    (2) Re: “Local officials no longer have the authority to remove citizenship. That must be done by a “higher-up” in Washington from the Directorate of Overseas Citizens Services,”

    CLNs have had to be approved by Washington for a long time. (At one point, back in the 70s, you didn’t even have to go to a consulate at all, simply sent in your CLN application.) Anyway, the approval is pretty much a rubber stamp as renunciation is pretty cut and dried. The problem with it is DC is swamped (and possibly this is not exactly a priority) so it generally takes months (occasionally as long as year) to receive the CLN.

    Isaac Brock Society, CLN Delivery Time Chart
    http://isaacbrocksociety.ca/consulate2/

    (3) Re: “You must show five years of tax compliance.”

    That’s true to log out of the IRS system. But to clarify — you don’t show five years of tax compliance (or any tax documents) to the consulate in order to renounce. Basically State Dept handles one’s citizenship and IRS handles one’s tax matters.

    Some people have been renouncing first and catching up on their taxes after (depending on the time of year you renounce, you’d have around 5-1/2 to 17-1/2 months to do this, as you have to certify the five years compliance on your final tax form (form 8854), which is due June 15th of the year after the renunciation.

    8854 instructions
    http://www.irs.gov/pub/irs-pdf/i8854.pdf

  • All of the reasons stated — and, the one most repugnant to me is the yearly cost of US tax and accounting professionals to assist with compliance. I have dropped $42,000 from my entirely Canadian-earned and taxed retirement savings for advice an services of US tax law, accounting and immigration/nationality law professionals. The only $$$ that actually went to the US IRS was for the Canadian Registered Disability Savings Plan (RDSP) that I am the Holder for on behalf of my Canadian-born and raised son who has NEVER lived in the US nor had any benefit at all from the US, only from his home / birth country, Canada, where all of his family lives. I forked over $3,661 to the IRS — money STOLEN from Canadian taxpayers that helped fund my son’s RDSP. The Canadian Registered Education Savings Plan (RESP) is taxed the same way by the US:

    1. If the sponsor / Holder of an RDSP (or RESP for that matter) is a US person then (US person analysis of the beneficiary is irrelevant):

    a. The income generated by the RDSP is taxed to the US person sponsor currently as it is earned

    b. The grant is taxed to the US person sponsor when it is distributed to the beneficiary

    c. US person sponsor must file 3520A annually

    d. US person sponsor must file 3520 annually

    2. If the sponsor / Holder of a RDSP (or RESP) is NOT a US person, AND the beneficiary is a US person then:

    a. The income generated by the RDSP (RESP) is taxed to the US beneficiary currently as it is earned

    b. The grant is taxed to the US person beneficiary when it is distributed

    c. US person beneficiary must file 3520 annually (no 3520A)

    Neither RDSPs nor RESPs are covered by the Canada / US Tax Treaty.

    A commenter who best asks good questions — can you answer?

    quote
    Adult parents and legal guardians are prevented by US law from relinquishing/renouncing their children or ward’s US citizenship status on their behalf.

    So, why is it that US extraterritorial citizenship-based taxation does not then exclude those deemed legally incompetent (by US laws) of the burdens of taxation predicated on the very status (citizenship) which it also FORCES them to retain (many for life) – because it states that they are incompetent to understand the status, and to form a decision to retain or renounce it?

    The FBAR online instructions state that children (deemed ‘US taxable persons’) should complete and submit THEIR OWN FBAR themselves – an absurd and offensive instruction to impose on a minor whom US law states is legally incompetent/immature. It is completely unacceptable that the US should instruct children that their local legal birthday and education savings accounts are reportable (and PENALIZABLE) to an agency called “FINANCIAL CRIMES ENFORCEMENT NETWORK” merely because they are outside the US, and have either a US parent, or a US birthplace. This would apply to those adults deemed incompetent as well.

    The FBAR treats ourselves and our children and wards as criminals.

    Where is the presumption of innocence before guilt?

    And how can the US government and US law maintain the fiction that minors and those deemed legally incompetent due to immaturity or physical/psychological/mental/intellectual conditions are incompetent to understand the ‘benefits’ of US citizenship, yet are competent enough to be mandated to file their own FBARs, and to be US taxpayers?

    The US taxes and penalizes the education and disability savings and grants of our children and dependents outside the US – despite giving tax preferred or deferred status to the US equivalent accounts.

    The US deprives our children and dependents who are deemed to be US citizen-taxpayers ‘abroad’ of the benefits it extends to ALL US residents (whether citizens or not).
    unquote

    So, entrapment into a US-defined US citizenship and the consequences of US citizenship-based taxation as a life sentence because THESE cannot renounce for any amount of money paid to any US tax lawyer or US tax accountant.

    Do the Congress persons who make and maintain these laws have one ounce of common sense or morality or just worry about PUNISHMENT? Punishment — for both those like my son and those with wealth like Eduardo Saverin who paid all of his US tax obligations and exit taxes upon his renunciation so he can again do business in the world as a free human being, no longer chattel to the US.

  • According to Forbes: 5.5 Million Americans Are Giving Up U.S. Citizenship, Survey Reveals. This is of the 7 million US citizens living overseas.

    This article is missing important points. Those who are renouncing are not just doing it for tax reasons. They – many of which have been living in relatively high tax countries for decades and who have citizenship in that country (so not without a country)- they are doing it because the US government disadvantages them compared to their neighbors who may be from another OECD country or only have citizenship in that nonUS country. One way for instance that the US government disadvantages US persons compared to their neighbors is that the US person’s neighbors can take advantage of tax deferred retirement accounts and other tax breaks in that country, while the US double taxation and compliance tends to neutralize all the best tax breaks and make financial and estate planning very much at a disadvantage compared to one’s neighbors.

    Also the article seems to pretend all the US tax and compliance is fair, equitable, and constitutional (see fatcalegalaction), and that these persons are receiving US government services for the taxes they pay (NOT).

    To be fair and balanced the article should not bring up the case of the 1% Edurado Saverin fatcat gaming the system – a story that tends to underpin all the injustice and unfairness in the system. The article should have instead focused on the story of Tricia Moon, as reported in the Wall Street Journal who owed no US tax but was up for $455,000 in FBAR and other penalties – while if she lived in the US she would be up for $0 in FBAR and other penalties as an ‘everyday’ person.

    The title: The Man (Or Woman) Without A Country – implies that all the people renouncing are stateless – which is an impossibility by the laws of renunciation. It implies that they are trying to get away with something as in suspicion of cheating. Better titles would be this:

    The Men (and Women) Rejected by America
    or
    Americans Abroad: Taxation without Representation in the 21st Century
    or
    Americans Abroad Forced Into 2nd Class Status by The US Government

    Any US persons caught up in this must visit the message boards of The Isaac Brock Society, and consider contributing to the Alliance for Defence of Canadian Sovereignty and fatcalegalaction dot com.

    • Why Americans are renouncing US citizenship:

      To avoid 2nd class status and financial disadvantage in the countries in which they live.

      To avoid 2nd class status and financial disadvantage compared to US persons living in the US.

  • Ted Cruz was able to easily renounce Canadian citizenship–one simple form, one stamp, $100, Done.

    The United States makes it as difficult as possible. For example, people who became citizens of other countries four, five, six or more decades ago were told by U.S. Consulates they were “permanently and irrevocably” relinquishing U.S. citizenship.

    People born in the United States because parents were temporarily living or visiting there have lived their entire lives as citizens of other countries have been stunned to discover U.S. considers them U.S. citizens against their will and then demanding information on their private, legal bank accoounts in countries where they have spent their entire lives except.

    Traveling to a U.S. Consulate to confirm a decades ago relinquishment is simply not possible for many seniors who have lived 40, 50 or 60 years with the understanding from U.S. Consulate that they are not U.S. citizens are now not able for medical reasons to travel to a U.S. Consulate to confirm a decades old relinquishment. The U.S. Consulate never mentioned a CLN when most of these people contacted them.

    In addition, U.S. Consulate will not accept renunciation or reporting of an earlier relinquishment if they deem the person lacks the mental capacity to do so. Consider what that means for a senior with Alzheimer’s or dementia or a citizen of another country who has a developmental disability.

    Also consider what it means for people who have lived their entire lives as citizens of other countries who simply cannot afford to become compliant with a foreign government’s tax laws simply so that person can become a non-citizen of that country.

    If Saudi Arabia, China, Iran, Russia, Eriterea or any other country was doing this to American citizens with some bizarre connection to those countries, the United States would be outraged and would take action to stop it.

    So, why does the United States think it has the right to do this to honest law-abiding citizens of other countries?

    The founding fathers must be rolling over in their graves.

    • Lynne,
      Re: “people who became citizens of other countries four, five, six or more decades ago were told by U.S. Consulates they were “permanently and irrevocably” relinquishing U.S. citizenship.” “The U.S. Consulate never mentioned a CLN when most of these people contacted them.”

      What you say is absolutely true, and as the following shows, represents dereliction of duty by the consular officers of the time. People today should not be paying a horrendous price for the incompetence of State Department staff. When they said loss of citizenship was permanent and irrevocable, by law it was their duty and obligation to prepare Certificates of Loss of Nationality.

      “Sec. 358. [8 U.S.C. 1501] Whenever a diplomatic or consular officer of the United States has reason to believe that a person while in a foreign state has lost his United States nationality under any provision of chapter 3 of this title, or under any provision of chapter IV of the Nationality Act of 1940, as amended, he shall certify the facts upon which such belief is based to the Department of State, in writing, under regulations prescribed by the Secretary of State. If the report of the diplomatic or consular officer is approved by the Secretary of State, a copy of the certificate shall be forwarded to the Attorney General, for his information, and the diplomatic or consular office in which the report was made shall be directed to forward a copy of the certificate to the person to whom it relates. Approval by the Secretary of State of a certificate under this section shall constitute a final administrative determination of loss of United States nationality under this Act, subject to such procedures for administrative appeal as the Secretary may prescribe by regulation, and also shall constitute a denial of a right or privilege of United States nationality for purposes of section 360.”
      http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/act.html

  • JC Double Taxed is absolutely correct — the title of this blog does not represent the many (which would be most) of persons abroad adversely affected, persons who have chosen (or will chose now) to become citizens of other countries, or those born “Accidental Americans”. It has little to do with with “The Man (Or Woman) Without A Country”.

    which – implies that all the people renouncing are stateless – which is an impossibility by the laws of renunciation. It implies that they are trying to get away with something as in suspicion of cheating. Better titles would be this:

    The Men (and Women) Rejected by America
    or
    Americans Abroad: Taxation without Representation in the 21st Century
    or
    Americans Abroad Forced Into 2nd Class Status by The US Government

    As Blaze, I became a Canadian citizen in 1975 and at that time was WARNED that I would be losing my US citizenship by doing so. No one ever mentioned anything about a CLN or any other requirements. I lived the following decades in Canada until learning of the US FATCA witch hunt, well into my Canadian earned, saved and now living on retirement savings. The US has been very negligent in its education on changes in tax law (which I would never have expected to have to keep up on) to persons abroad. For US persons abroad who are now *criminalized*, renunciation is the only choice to be able to live a normal life free from all the US citizenship based taxation requires. A sane and moral country would legislate new law, rather than ramping up more punitive law to enforce a new Berlin Wall around the “homeland”. It would also never penalize society’s most vulnerable who have some kind of *mental incapacity* by not allowing someone to renounce an extraneous *US-defined US citizenship* on such persons’ behalves.

  • Thank you to all who commented. As a CPA in Canada serving expats I can confirm and support all your stories. I am saddened by the fees charged, as in Calgary411’s case, where Big 4 firms (who also may have high prices, tho) and spinoff firms charge fees similar to “regular” tax processing.
    (’nuff said)

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