The comments of James Henry appear to assume that the #CookvTait Principle of extra-territorial taxation is correct

cross-posted from renounceuscitizenship blog

My last post featured the comments of Apple CEO Tim Cook about the ongoing debate over whether U.S. companies should be punished for their strict compliance with the absolutely archaic, dysfunctional, overly complex tax laws of the United States of America. It has reached the point where it appears there are two classes of corporations that Homeland politicians and groups like the Tax Justice Network dislike:
Group 1 – U.S. Politicians dislike those U.S. companies who do comply with U.S. laws; and

Group 2 – U.S. Politicians dislike those U.S. companies who do NOT comply with U.S. laws.

These sentiments were recently expressed by James Henry of The Tax Justice Network who makes the point that:

The interview with Mr. Henry is fascinating. Mr. Henry is opposed to “territorial taxation” for Corporations. This suggests that he might be opposed to “residence based taxation” for individuals.
I would appreciate you commenting on what you think of Mr. Henry’s interview. What are the key points that he makes? What (if anything) does he say that is relevant to the RBT vs. CBT debate? Do you get the impression that Mr. Henry believes that U.S. companies are the property of the U.S. government?

By the way …

Here is Tim Cook’s testimony before the Levin Committee in 2013:

How does CBT affect your health, state of mind?


One of the most obvious effects of FBAR, FATCA, or in other words, CBT, is the toll on the health of the individuals directly affected.

One of the first people to recognize that expatriates facing these effects needed guidance/help outside of tax issues, was John Richardson. He arranged for a meeting where expats could speak freely. The facilitator for that portion of the program was Dr. Donald Young. While no comments of that meeting were recorded (as a matter of policy/protection for the attendees), a commenter on a Forbes article makes reference to a statement of Dr. Young:

U-SS-A :

In the words of Dr. Donald Young, University of Toronto Dept of Psychiatry:

For those U.S citizens who have elected to live abroad, be it in Canada or elsewhere, American tax policy can place such individuals in a position that engenders constant and severe emotional stress. The vindictiveness of the U.S. position, its unfairness and irrationality, the fact that neither the U.S. government nor tax and legal experts even know the rules and how to rationally proceed, and the constant threat of economic calamity are all factors that can be emotionally devastating. From my observations over the years in people ensnared in this situation, and I would count myself among us, it is common to experience substantial anxiety, depression, feelings of panic and foreboding, guilt over being branded a cheat and a criminal, fear, anger, resentment, and general feelings of helplessness and confusion. I have in fact seen some people who have become virtually suicidal at the prospect of losing everything for the “crime” of not paying taxes to a country they have not lived in for decades if ever at all. I am a clinical psychologist licensed to practice in Ontario with 35 years of experience. I have also been appointed an assistant professor in the Department of Psychiatry at the University of Toronto. In recent years I have had the opportunity to discuss and address these problems with many individuals who are trapped in these tragic circumstances

A submission to the 2015 Senate Finance Committee Study for Tax Reform request for comments includes some specific quotes made by expatriates (on various articles, blogs, etc.) that reference psychological effects (starting at p 119-just click on that section of the index of the submission). It is pathetic that the Committee did not recognize the depth of the harm that expats documented in the entirety of the submissions (i.e., in addition to the submission just referenced).

From the Citizenship Taxation WordPress Blog post #CBTLawsuit – First report of Senate Finance Committee brings citizenship taxation lawsuit one step closer. ‎

As barely, a footnote, the Committee ended with:

F. Overseas Americans

According to working group submissions, there are currently 7.6 million American citizens living outside of the United States. Of the 347 submissions made to the international working group, nearly three-quarters dealt with the international taxation of individuals, mainly focusing on citizenship-based taxation, the Foreign Account Tax Compliance Act (FATCA), and the Report of Foreign Bank and Financial Accounts (FBAR).

While the co-chairs were not able to produce a comprehensive plan to overhaul the taxation of individual Americans living overseas within the time-constraints placed on the working group, the co-chairs urge the Chairman and Ranking Member to carefully consider the concerns articulated in the submissions moving forward.

It is inconceivable after the number of stories sent to the SFC, not only were there no substantial options suggested, but a mere two paragraphs is offered with a suggestion that the concerns be addressed moving forward. This is not good enough. This has been going on since 2009 with the FBAR Fundraiser, the FATCA hunt and so on.
Then there is the case of a particular, much-loved expat, quoted on the home page:

I lived and worked in the USA for 30 years becoming a proud American in 1967. I moved back home, in failing health, with sleepless nights, afraid of losing my small life savings. In a way, I am glad I will not have much long to go in this world. I am beginning to give up.
Marcio de Vasconcellos Pinheiro

Marcio spoke often of how proud he was, coming from Brazil to live in America and becoming a citizen in 1967.

Clearly at the mercy of tax professionals, (or IOW, clearly mislead into entering OVDI), he mentioned $300 per hour lawyer fees and he ended up paying 27.5% of his life savings. Unbelievably, he had a letter from the IRS indicating that his best course of action would be to renounce his US citizenship.

You can read more about Marcio here.

It is sad and then, infuriating to realize what this man went through, and how severely his outlook was destroyed (what to say of his health). I cannot for the life of me understand how any of these people (Shulman, Levin, Obama, et al) can sleep at night. In the end, life is simple in spite of all the “more important issues” the world insists on focusing on. The United States of America has clearly become what most people would describe, as evil. Rest in peace Marcio, along with Roger and Don and OzTeddy and likely many other expatriate Americans who did not deserve the treatment they received at the end of their lives.

Why YOU Must Fund the #CBTLawsuit


The CBT lawsuit will be launched by the Alliance for the Defeat of Citizenship Taxation. The most obvious reason why you should donate to this litigation is that abolition of CBT would nullify your tax and information reporting and paying – forever.

Up to now, the work dedicated to improving the plight of “US Persons” has been carried on in various ways by different groups and individuals. After general protest against the onerous penalties for FBAR, that work has taken on a general direction toward protection against FATCA. This has included all types of letter campaigns (in Canada as well as expats all across the globe targeting their U.S. Senators and Representatives in the United States); petitions; small demonstrations in Canada; individuals appearing in media; individuals trying to educate the general public by responding to articles and comments online; annual visits to Washington. Some groups have started litigation; Alliance for the Defence of Canadian Sovereignty and Republicans Overseas/James Bopp Jr). Others are pushing for Residence-based Taxation, ( ACA, AARO, and FAWCO ; the Safe Harbour/Same Country Exception” (SH/SCE)( DA). Two “newer” groups are reaching out: American Expatriates FB covers many topics and Accidental Americans FB has begun to focus on the specific problems of “Accidental Americans” (France). In other words, a great deal of effort has been put forth to communicate what is happening; to try and educate governments, the media, and Americans who live in the United States.

We have very few allies. Nina Olson of the Tapayer Advocate Service (TAS) having issued a Taxpayer Advocate Directive (TAD) was completely ignored by then Commissioner Douglas Shulman. Every year she continues to press Congress on our behalf; so far, it seems Congress is not listening. Very few journalists and politicians understand the complexities of our situation. There is a congressional committee, the Americans Abroad Caucus headed by Congresswoman Carolyn B. Maloney. Looking at the bills introduced, many had to do with voting and were referred to committees but did not progress further. The Caucus drafted a letter to Treasury Secretary Lew and IRS Commissioner Koskinen supporting the position that financial accounts in the country where one lives should not be subject to FATCA reporting (SH/SCE). The letter was circulated in the House of Representatives, asking for co-signers; very few did so. HR 3078 (Commission on Americans Living Abroad Act of 2015) was re-submitted in July 2015 but has not advanced farther than committee assignment.

Most of us are able to vote; however, according to ACA, the largest percentage of concentration of expats in a district is 2%. In most states, this ratio is much lower. We simply do not have the ability ensure our concerns are adequately represented. The reality is that the most important thing to a politician is re-election, and to claim to be “going after tax evasion” with all of its convoluted and incorrect assumptions, plays very nicely into that scenario.

The incorrect stereotype is that most “Americans abroad” are considered to be persons of privilege so any abuse of our rights are easily dismissed. Then there are those who simply cannot see past the mis-applied cliché – rich expats living abroad, tax cheats, traitors. It is unrealistic to think these perceptions are a matter of simple education; it will take decades, perhaps generations for this to change.

Most importantly there is the extremely punitive response of the U.S. government, escalating in 2009 when our “foreign” accounts were targeted.This was done after years of non-enforcement. Virtually no one knew of these obligations and the U.S. did NO due diligence to notify/educate those abroad who were affected. It was an immediate and ongoing campaign of threats, penalties and intimidation.

First, the notorious OVDP 2009 “in lieu of FBAR penalties” – 20% of highest balance of highest account for 6 yrs plus other non-filing fees for information returns ($10,000 per type), accuracy penalties (20-40%) etc. As we will see with other actions, there is an increase in penalties; the in-lieu of penalty is now 27.5%, covers 8 years and the penalty base now includes FATCA Form 8938. These programs are for criminals. If one is unfortunate enough to be discovered by the IRS before coming into compliance there are consequences some of which can be extremely severe. The IRS created considerable distrust by disallowing FAQ #35 in March 2011.

There are now more forms and more penalties. For a description of this escalation, see here.

The renunciation fee originally was 0$, rose to $450 and is now a whopping $2350 USD. There is now a fee for relinquishments, also $2350 USD. The explanation for this obscene rise is completely nefarious.

There have been repeated attempts to modify, repeal or phase out the Foreign Earned Income Exclusion; as well as attempts to lower the Estate Tax threshold. The Reed Amendment (1996), designed to keep expats out if they renounced in order to avoid tax, is unenforceable. The tax compliance community is particularly fond of over-emphasizing this in order to frighten people into compliance, often without even examining possible/likely loss of citizenship. The 2 bills introduced in 2012 & 2013 (the “ExPatriot Act” and the “Taxpatriation Act”) by Senators Schumer and Reed seek to make “specified expatriates” inadmissible. Such persons will suffer a 30% tax on their US-source capital gains; the expatriation rule is to be retroactive by applying it to anyone who is a “covered expatriate” who gave up his citizenship in the last ten years. Congress is considering passport revocation for anyone with a $50k tax liability; (see section 7345). All of these measures are oppressive and demonstrate callousness toward citizens who have dared to live outside the Homeland.
Regarding FATCA, Former Canadian Minister of Revenue the Honorable Kerry-Lynne Findlay stated:

“This is strictly a tax information-sharing agreement. This agreement will not impose any U.S. taxes or penalties on U.S. citizens or U.S. residents holding accounts in Canada.”

So is FATCA to deal with tax evasion and collection of tax? If so, why the need for listing more financial assets on Form 8938? Does anyone seriously doubt that a Wealth Tax is next? Or at the very least, the U.S. is tracking assets to map out Gift and Estate Tax for U.S. Persons abroad? Recently the IRS updated the regulations for the Gift Tax ; Section 2801 imposes a tax on covered gifts and covered bequests received by a citizen or resident of the United States from a covered expatriate. Now there is a presumption that the donor is “covered.” It is the responsibility of the recipient to prove whether the donor is ‘covered’ or not.

All of these factors are considerably depressing. Virtually nothing has developed over the last four years that provides serious relief from the miserable situation CBT puts us in. The IRS and Congress are very aware of how we are affected by this. At this point, no one can claim we are merely “collateral damage;” many see aspects of this as part of a long term negative approach toward anyone who chooses to live outside of the U.S. There was a ray of hope for “Accidental Americans” with the Obama Administration’s 2016 Green Book (Revenue Proposals); it included a provision under which an individual would not be subject to the exit tax requirements if certain conditions were met. Unfortunately it is unlikely to become law. Many will remember (mid-2012) the following statement, which then served as a motto for those who felt they should renounce but were hesitant:

“Get out while the getting is semi-good. Don’t wait for more time. More time means more laws.”

Phil Hodgen, June 2012 “Why People Expatriate”

It is clear that Phil’s comment most definitely was accurate at the time and is even more so now.

To imagine that somehow, this will be fixed due to the efforts of others is unrealistic. There are two aspects to this. First, the people who have been engaged in this work, some for decades, and others very intensely over the last four years, simply cannot be expected to continue to carry the ball without support. This applies to those who give of their time as well as those who have already given donations. It is grossly unfair to expect “other people” to put out and then to just sit by and do nothing when one gains from their actions. President Ronald Reagan had some strong words in this regard:

Second, most have very little faith in the political process; the reality is that most responses are limited to form letters and many receive no reply at all. There has been NO action taken by any government in any country to protect their expat citizens. In fact, many have had to change their own laws (via the IGAs) to make it possible to comply with this extraterritorial U.S. law. The reality for the FFI’s of these countries continues to be the economic sanction the U.S. has inflicted upon financial institutions around the world if said countries do not comply with FATCA reporting.

The Alliance for the Defeat of Citizenship Taxation (ADCT) was formed due to the (lack of) response of the Senate Finance Committee to the well-documented   harm that CBT with it’s vicious tentacles has done to “U.S. Persons” abroad. It is undeniably clear, that U.S. citizenship-based taxation is fueling the largest number of renunciations in U.S. history. Ironically, the government is not permitted to take actions which cause Americans to lose their citizenship:

In Afroyim v. Rusk, a divided Court extended the force of this first sentence beyond prior holdings, ruling that it withdrew [p.1567] from the Government of the United States the power to expatriate United States citizens against their will for any reason. “[T]he Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other government unit.

ADCT is registered non-profit organization in Canada. It is not a charitable organization and is unable to issue tax-receipts for donations. The Directors are:

Chair Dr. Stephen J. Kish
Co-chair John Richardson
Treasurer-Secretary Patricia Moon
Director Carol Tapanila

There has been no major tax reform since 1986 (nearly 30 years ago). At that rate, most of us will not live to see any relief from this. At the very least, we owe it to our children to try and get this changed before it destroys their chances to build a solid retirement (if they choose not to renounce).

Should one decide that they have a tax problem (instead of a compliance problem), here is what there is to look forward to:

  • Streamlined program to get back into the system (one concession that has been made) without penalties
  • A lifetime of filing (and paying for) many forms for no tax owed
  • a need to protect the sale of your primary residence from U.S. capital gains tax
  • inability to own domestic Mutual Funds
  • inability to make use of country-specific tax deferred savings plans (such as the Tax-Free Savings Account in Canada)
  • limited to investing on interest income, simple stocks & rental income
  • required to report/pay on undistributed amounts (ex. domestic tax-deferred programs utilized)
  • effects on non-U.S. pensions, such as Australia’s superannuation situation

It is time for each and every American citizen abroad to face reality. Our own governments, press and fellow-citizens consider us “privileged.” They DO NOT consider the unjustness of CBT to be a matter of “human rights.” They DO NOT question the utter hypocrisy and imperialistic reality of the U.S. extraterritorial enforcement of CBT. They do not even question the immorality of US imposing FATCA on all other countries and peoples of the world (and making them pay for it). There is simply no point in trying to change from within the system. We do not have effective representation. We can see the US government actions focus on compliance (largely through punishment whether it be direct penalties or via punitive policies such as AMT, MFS thresholds, Obamacare tax, etc) and keeping us in the chains of taxation and information reporting. We can see our own governments’ kow-towing to the reality of the banks’ need to have access to the US capital markets. Our own governments simply rewrite the laws to make it legal to break the laws. This makes it necessary to go to our only resource – the courts.

Once one comes to the realization that litigation is the only way to combat this, here is why donating to the CBT lawsuit makes sense:

  • A way for those who have not participated yet to become involved in an effort that is not country-specific; this would help ALL Americans, everywhere
  • A way to be rid of the punitive effect of the US tax system toward anything “foreign”- once and for all without giving up U.S. citizenship
  • Relief at preventing this situation from being passed on to our children as well as our “alien” spouses/family

The CBT lawsuit is cost-effective:

  • If you want to renounce and are “covered” a donation could bring you under the threshold
  • Consider how much it will cost to remain compliant (just to file, not actual tax amounts) to a tax system which provides nothing in return

For one who is 50 now & lives another 30 years:

Average compliance cost of

  • $2,000 per year x 30 years = $60,000
  • $2,500 per year x 30 years = $75,000
  • $5,000 per year x 30 years = $150,000

Do you really want to part with that amount of your hard-earned money while the conditions are likely to continue to worsen?

While the U.S. seems undisturbed at this point about the number of renunciations taking place, the behaviour of trying to make it harder demonstrates the government would like to prevent people from dropping their citizenship. It is also significant that the courts tend to make rulings in favour of maintaining one’s status as a U.S. citizen.
We expect this case to go all the way to the Supreme Court of the United States as Cook v Tait did in 1924.

In summary, if you really want to be free, once and for all, from the effects of U.S. taxation on your life and the lives of your family, please join in, and support the CBT lawsuit with your donations. It is our best chance for putting an end to this invasive control mechanism imposed upon us simply because we were “born in the United States of America.”

Update: The #CBTLawsuit rollout is beginning – we need YOUR support



This post is to:

  • announce the “roll out” of a lawsuit filed in the United States
  • against the Government of the United States
  • to strike down the most egregious aspects of U.S. “place of birth taxation”
  • and provide relief for those who reside outside the United States and are unjustly, unfairly and unlawfully burdened by the attempt of the United States to impose its laws on the residents and/or citizens of other nations.

The lawsuit will require a large amount of funding including an immediate injection  of $25,000.

For those who only want to contribute the funding are invited to go here. Those who want to understand what we are doing read on.

By way of background:

One more U.S. citizen abroad is forced to renounce her U.S. citizenship:


Congratulations for taking this difficult step. Thank you for your willingness to be interviewed and to write about this experience. Your writing and interview will help raise awareness of the reality of what the U.S. Government is doing to Americans abroad. To put it simply: Americans abroad are being forced – by the laws enacted by Congress and the enforcement of these laws by the Obama administration – to renounce their U.S. citizenship.

The specific reasons for this are discussed day in and day out on blogs, Facebook groups and pages, Twitter handles, and more. So, I won’t repeat them here.

The 14th Amendment of the U.S. Constitution, as interpreted by the Supreme Court of the United States, in the cases of Afroyim v. Rusk and Vance v. Terrazas makes it clear (as per Justice Black in Afroyim) that:

“Citizenship in this Nation is a part of a co-operative affair. Its citizenry is the country and the country is its citizenry. The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship. We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.”

The time has come to use the courts to remind the U.S. Government that:

“Its citizenry is the country and the country is its citizenry.”

The U.S. Government cannot engage in laws and policies that are “forcing Americans abroad to renounce THEIR U.S. citizenship”.

Rachel, I admire your common sense, courage and generosity in sharing. Americans abroad owe you a great debt for having the courage to write about this experience.

The simple truth is that the U.S. Government is forcing Americans who live outside the United States to renounce their U.S. citizenship.

On July 8, 2015 I posted on the ADCS-ADSC blog that:

There will (in the very near future) be a lawsuit launched in the United States against the most egregious aspects of U.S. TAX  policy,  as they relate to ALL PEOPLE said to be “U.S. persons” who reside outside the United States.

The lawsuit will explore the following issues:

Can the United States Define its tax base so broadly that it includes people with little or no connection to the United States?

The lawsuit is likely to  include issues related to the “forced imposition of U.S. citizenship” on people (“accidentals”) who do NOT and have never had, a meaningful connection to the United States. Can the United States impose taxation on people, and otherwise control the lives of people, who do not live in the United States, and are often citizens of other nations,  simply because they were born in the United States?

Can the United States impose taxation and reporting requirements on:

  • income not connected to the United States which is earned by
  • those who are residents and citizens of other nations?

Can the United States impose rules of taxation that limit the opportunities for  Americans abroad from participating in:

  • pension and retirement plans in their country of residence
  • the benefits of mutual funds that are located outside of the United States and in the country where they reside?

Can the United States impose rules of taxation that:

  • subject the distributions of Registered Retirement Savings Plans (“RRSPs”) of Canadian citizens to the U.S. Obamacare surtax,
  • but exempt the earnings from U.S. 401K plans from the Obamacare surtax?

Can the United States impose an “Exit Tax” on those who choose to relinquish U.S. citizenship? If so, can that “Exit Tax” be a tax on:

  • the assets of residents and the residents and citizens of other nations,
  • when those assets have no connection to the United States
  • when those assets are NOT located in the United States
  • when those assets were acquired after the person moved from the United States
  • when those assets were acquired with money earned and taxed in other nations
  • on the present value of non-U.S. pensions that were earned from employment and work outside the United States?

Can the United  States impose laws on American citizens abroad, with compliance requirements that are so onerous, expensive, disabling and frightening that people feel they are forced to renounce U.S. citizenship?

People are NOT renouncing U.S. citizenship because the want to. They are renouncing U.S. citizenship because they feel they have to!

Who should support this lawsuit?

We hope for the support of individuals. We also hope for the support of all the various groups, whose members are claimed by the U.S. Government as “Americans abroad”. “If Americans abroad do NOT hang together, they will hang separately”.

I would add to the posting on July 8 that many of the issues we anticipate raising are NOT issues of taxation per se, but issues of “life control” under the guise of taxation.

In any event, what we are doing now is …

Working with our U.S. based law firm for the purpose of ensuring that our claims are provable. A great lawyer once remarked that:

A lawsuit and trial are NOT a search for truth. They are a search for proof!

Let’s face it. We know how horrible the situation is. We know that no American citizen, who obeys all relevant U.S. laws, can live the life that he or she wants outside the United States. We know and understand the “TERRORony” of forms and penalties. We know all about the restrictions on investments, financial planning, the expenses of compliance, the constant fear and anxiety, the bank account closures, the strains on marriages, the lost business opportunities,  and more.

We know all about this. But our knowing is NOT good enough. We must begin by confirming that what we all know to be the truth, can be presented in such a way, that we can meet the burden of proof.

We must be confident that we:

  • can prove the facts that
  • will support the legal basis to
  • secure us relief in the courts, from the most egregious aspects of life control based on circumstances of birth, that apply to those who were born in the United States and live outside the United States.

We need to be careful. We need to be prudent. The litigation in both the FATCA USA and the FATCA Canada lawsuits has taught us  that this will NOT be an easy process. Nevertheless, I am confident of our position. This is about the extra-territorial application of U.S. law. It about “life control” based on the circumstance that you were born in the United States. It is unjust. It is unfair. It is immoral.

You did NOT choose the circumstances of your birth!

Prudence dictates that we begin by seeking a legal opinion that confirms that we can meet our burden of proof. Therefore, we will begin by securing this legal opinion. This will be our first step.


There are believed to be more than 8 million “U.S. persons” who are being hunted by FATCA. All of these people have an interest in this lawsuit. ALL of these people and their families are faced with compliance problems, the S. 877A Exit Tax, and more. Therefore, all affected persons should have an interest in funding this lawsuit. YOU are the affected persons. Therefore, YOU will be asked to contribute to the funding of this lawsuit. More information about the funding is here.

We will need an immediate injection of $25,000.


Who will be responsible for supervising the lawsuit?

The lawsuit will be run by a new non-profit group; The Alliance For The Defeat of Citizenship Taxation.

The real people interacting with the lawyers will include: John Richardson (me), Stephen Kish,  Carol Tapanila and Patricia Moon.

Who will the lawyers be?

We have been in discussions with a large U.S. based law firm. We have confidence in this firm Once they confirm to us, after their own independent analysis that they believe that they can proved the relevant facts, they will be instructed to formally begin. We will introduce the firm at that time.

Have the plaintiffs been selected?

There are sufficient plaintiffs to begin the lawsuit. In order to seek a broad representation of the types of people that the United States claims to be “U.S. persons”, we will be seeking additional plaintiffs. Stay tuned.

What about the timing?

I do NOT want to and am NOT able to commit to a specific time frame. That said, it is our objective to launch the lawsuit in mid-2016.

Further announcements:

Look to this blog, the Facebook pages,, and the Twitter handle @CBTLawsuit for further developments.

In closing …

It’s hard to belief that the United States attempts to rely on Cook v. Tait as the justification for place of birth citizenship-taxation. This lawsuit is long overdue. I am excited to be part of it! I am sure that you are excited to be notified of it!


John Richardson

P.S. In April of 2015, we submitted our report on U.S. citizenship “place of birth” taxation to the U.S. Senate Finance Committee. Feel free to read the various components here.