A very special meeting for “U.S. Born People” or those who are otherwise “U.S. Persons” !(Naturalized U.S. citizens or Green Card holders)
Joining John Richardson will be Andrew Grossman
Discussing the “hot topic” of U.S. citizenship (including its liabilities in a FATCA and FBAR world)
In addition to focusing on the problems faced by those who agree they are U.S. citizens (to be a citizen or not to be a citizen …), this seminar will include consideration of …
- Why the US cannot automatically restore your citizenship without your consent
- The advantages of not making use of benefits of U.S. citizenship
- Why the U.S. cannot force those born abroad to accept U.S. citizenship
- Dominant Nationality & FATCA
- About the revenue rule: How is it affected by the Canada U.S. Tax Treaty? Is the Revenue Rule on the way out?
- Can the IRS place a lien on my assets even though I live in Canada?
The idea for this meeting grew out of Andy’s participation on a post at the Isaac Brock Society (Andy05).
“If anyone wants to follow up on issues I have raised, I will be in Montréal Dec. 1-3 & 5-6 and in Stanstead QC Dec. 3-5 and would be glad to meet for coffee and exchange views. I do not seek and scarcely ever accept clients but like to exchange views as an academic lawyer with a view to nationality law, cross-border tax and conflict of laws. French or English ok.”
Some of you may have attended one of the earlier meetings where Andrew & John collaborated. This interesting interview followed the session in Montreal in March 2014 at the Faculty Of Law at McGill University.
The video, as well as the excerpts below attest to the fact that there is likely no one better qualified to comment on the issues affecting American expatriates today.
Excerpts from the Brock post:
On non-consensual attribution of citizenship other than at birth, adoption (& previously, marriage:
Colleagues and I have written on this subject over the years. I have also noted that the IRS and the State Department seem not in accord as to the effect of judicial retroactive restoration of citizenship (Afroyim, Terrazas, etc.): international law seems not to allow non-consensual attribution of citizenship other than at a time of birth, adoption or (less commonly now) marriage. In the past, certain Argentine and Israeli laws have been called into question and changed. It seems to me that the IRS does not pursue persons with doubtful nationality status, although in the current culture that hasn’t stopped banks from at least initially refusing accounts from some who lost, or never had, US nationality but do not possess a CLN.
On case law regarding mutual collection agreements:
The curious 1989 cross-border collection case you allude to is Van deMark v. Toronto-Dominion Bank and can be found here.
The claim was for tax due from a deceased father and seems to have involved “transferee liability”. The bank had to pay out twice: once to the IRS from its NY correspondent and once from Canada to its depositor.
Retroactive tax laws, and, ironically, criminal offenses that depend on them, are more likely to pass judicial muster (human rights, constitutional rights, vested interests) than other laws. But this is not an unlimited tolerance: see Chua v. Canada (Minister of National Revenue).
Excerpts from 2007 publication Conflicts in the Cross-Border Enforcement of Tax Claims:
The debate on such expansion of the extraterritorial reach of taxation has scarcely taken into consideration important conflicts in nationality law, private international law, bankruptcy law, national tax-deferral and –sparing concessions, characterization 6, tax years 7, concepts of status, entity8 and title. 9 Nor has it addressed the constitutional 10 and public policy aspects generally, including what may prove to be true conflicts of governmental interests. Indeed, to the degree that taxpayer intent bears upon taxability, cross-border consistency may be particularly difficult to achieve.11 As will be shown, both rejection of the so-called “Revenue Rule” and its application can give rise to situations of undue hardship.
The recognition of tax levies and liens across sovereign boundaries is likewise open to doubt. While an IRS tax lien attaches worldwide to all assets of the debtor, in the absence of in rem jurisdiction, its enforceability depends upon coercive power over the person having effective control.
As far as can be determined and notwithstanding the text of the Revenue Rulings cited above 352, the United States seems not, after the Supreme Court decisions in Afroyim v. Rusk 353 and Vance v. Terrazas 354, to have asserted with any force a claim to the allegiance of persons earlier divested of nationality under laws later abrogated with retroactive effect. Much less has it sought to claim as citizens their otherwise qualifying offspring born abroad or taken affirmative steps to subject either category of persons to tax on their worldwide income if they remained abroad.355 A related category or persons is comprised of persons born abroad, otherwise U.S. citizens, whose births were never registered with U.S. consular authorities and who are therefore subject to a (rebuttable) presumption of alienage.356
*****
Please make time in your busy lives to come and hear what will likely be one of the most important sources of information you will ever come across. All are welcome – please bring along your family and friends.
WHAT: Solving U.S. Citizenship Problems with Andrew Grossman & John Richardson
WHERE: TENATIVE: Atwater Library- Please make sure to check back for confirmation
1200 Avenue Atwater, Westmount, QC H3Z MAP
– Avenue Atwater is just south of St. Catherine Street
WHEN: Monday, December 5 2016 19:00
ADMISSION: $20 cash payable at the door; please register in advance at nobledreamer16 at gmail dot com
WHO::
Andrew Grossman is a retired U.S. Foreign Service Officer who served in Seoul, Abidjan, London, Tehran, Algiers and Geneva. He holds the degrees of B.A. in Economics (Clark), LL.B. (Columbia), M.A. in L.I.S. (University College London) and of Licencié en droit européen et international, Maître & Docteur en droit (Louvain) and he is a member of the New York and District of Columbia Bars. He lives in London where he writes on private international law issues, especially in the fields of personal status, insolvency and tax.
John Richardson is a Toronto citizenship lawyer, the co-chairman of The Alliance for the Defence of Canadian Sovereignty as well as the Alliance for the Defeat of Citizenship Taxation. He is a member of the ACA Taxation Advisory Panel. He holds the degrees of B.A., LL.B., and J.D. He is a member of the Massachusetts, New York and Ontario bars. His law practice focuses on “Solving the problems of U.S. citizenship” including relinquishing and the “Exit Tax”. He gives programs for expats all across Canada and Europe. He writes extensively at citizenshipsolutions.ca
Footnotes:
6Thus: what constitutes realty and personalty, Fair v. Commissioner, 91 F.2d 218 (3rd Cir. 1937) (Cuban
hypotecas as immovables); trusts and estates as separate tax entities: PLR 9413005 (Germany-U.S.; trust
determined to constitute US domestic estate with no treaty exemption notwithstanding that assets not actually
distributed to beneficiaries were taxable to them in Germany). A foreign tax may be characterized as other than
an income tax, and credit denied: Rev. Rul. 76-536 (Irish wealth tax) citing Biddle v. Commissioner, 302 U.S.
573 (1938), Rev. Rul. 70-464 (Swiss wealth tax) citing Lynch v. Turrish, 247 U.S. 221 (1918); see RIA ¶ O-
4233 for rulings and decisions on specific foreign taxes. For an argument as between characterization and
timing in relation to a Canadian statute of limitations and method of accounting, see Coulter Electronics, Inc. v.
C.I.R., T.C. Memo 1990-186, aff’d 943 F.2d 1218 (11th Cir.) .
7Notoriously among them the conflict of tax years for cross-border cash-basis taxpayers resulting from
the UK tax year, April 6 of one year to April 5 of the next (reflecting its origins in the ecclesiastical calendar).
The INLAND REVENUE DOUBLE TAXATION MANUAL, DT1921, discusses the impact of varying tax treaty
definitions of “tax year” on the taxation of employment.
8 Liechtenstein Stiftung as trust: Estate of Swan v. Commissioner, 24 T.C. 829 (1955), acq., 1956-2 C.B.
8, aff’d in part and rev’d in part on other grounds, 247 F.2d 144 (2d Cir. 1957); PLR 200302005, PLR
200226012.
910 David Schmudde, Constitutional Limitations on State Taxation of Nonresident Citizens, 1999 DET.
C.L. REV. 95.
352 n. 341.
353 387 U.S. 253, 268 (1967).
354 444 U.S. 252, 260 (1980).
355 Cf. Rocha v. Immigration and Naturalization Service, 450 F.2d 946 (1st Cir. 1971) (U.S. nationality of
mother deemed never to have been lost). It would seem a heroic undertaking for a tax agency to inquire sua
sponte into matters relating to derivative acquisition of status, whether nationality or domicile. The task is
rendered all the more difficult in the wake of Wauchope v. U.S. Dept. of State, 985 F.2d 1407 (9th Cir 1993)
and Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358.
356 6 Rios v. Civiletti, 571 F. Supp. 218 (D.P.R. 1983) (father, U.S. Army deserter, recorded birth in
Mexico using fictitious name); Corona-Palomera v. INS, 661 F.2d 814, 818 (9th Cir.1981); Matter of Leyva, 16
I. & N. Dec. 118, 119 (BIA 1977