— John Richardson – lawyer for "U.S. persons" abroad (@ExpatriationLaw) August 14, 2017
Shades of Larissa Waters … Oh My God! Think of it:
My sources in Australia tell me …
This time it’s the Deputy Prime Minister – http://www.abc.net.au/news/2017-08-14/barnaby-joyce-is-a-new-zealand-citizen-nz-government-confirms/8804620 – and the first member of the lower house to be tainted by dual citizenship. This is significant. With the Senate they usually go to the next person on that party’s ticket from the last Senate election. With the House of Reps they have to have a by-election – and Turnbull’s government is hanging on by a single vote. So, if the High Court rules that Barnaby Joyce must vacate his seat, it could topple the government!
And I thought that Politics in Canada was dirty. And we all revel in the daily stench of the toxic partisanship in the USA. But, hey at least these two countries do NOT have constitutional provisions that (as they have been interpreted) allow other countries to interfere in who the elected representatives are! (We let them interfere in covert ways – think “From Russia With Love” ….)
But Australia. This really is unique. Think of it. Once a person is accused of being a dual citizen – AS DEFINED BY THE LAWS OF ANOTHER COUNTRY – then the person is disqualified from serving in the Senate or the Lower House. I had always thought of Australia as a sovereign country. Can it really be true that Australia allows eligibility for service in the Senate or the lower house to be determined by another country’s citizenship laws? Does it matter whether these “foreign laws” confer citizenship by force rather than citizenship by consent?
Think of the possibilities here. There have always been suggestions that “The USA via the CIA” had been (wonderful melody) instrumental in the dismissal of Australian Prime Minister Gough Whitlam. Why go to so much trouble? The way Australia is interpreting its own constitution, all a future U.S. Government would have to do is confer U.S. citizenship on the Prime Minister of Australia and he would be forced to resign. But this would be the intentional “weaponization of citizenship”. (But, the FATCA is that: the USA would NEVER use citizenship as a weapon now, would it?) Australia has already surrendered much of its sovereignty to the United States through a combination of the FATCA IGA and the “savings clause” in the Australia U.S. Tax Treaty. It’s worse than you think. The problem extends to the ongoing changes in the citizenship laws of other nations
What about the change in one country’s citizenship laws conferring citizenship on an Australian citizen without his/her knowing about it? For example, Canada has made significant amendments to its citizenship laws in 2009 and 2016. In both cases Canadian citizenship was conferred on people who did NOT have Canadian citizenship. One example is that prior to 1977, a person born abroad to a married couple where the father was NOT Canadian (say Australian) and the mother was Canadian would NOT have become Canadian by descent. In 2009 people in these circumstances were given Canadian citizenship. What if a person affected by this was in the Australian Senate in 2009 when the Canadian law was changed. Would that person be forced to resign? Can the citizenship of country A be forcibly imposed on a resident of country B who has NEITHER ACCEPTED NOR ACKNOWLEDGED THAT CITIZENSHIP?
Introduction – RIP Muhammad Ali
Like many I was saddened to learn of the death of Muhammad Ali. (One of my profitable ventures was betting on Ali in his 1974 fight with Foreman.) Most of the media discussion of Ali’s death focused on his boxing career. There was far less attention paid to Ali’s refusal to accept induction into the U.S. military. This refusal led to his being stripped of his boxing license (why anyone would need a license to box is beyond me) and interestingly the revocation of his U.S. passport (if you can’t box in America we will prevent you from boxing outside America). Hmmm, does that passport revocation remind you of any recent events or any past events?
Ali made the reasonable point that he was being asked to go to Viet Nam to defend the rights of the South Vietnamese people who were being denied their rights, at the same time that Black Americans were denied their rights in America. Muhammad Ali provided inspiration to Dr. Martin Luther King. Fast forward to 2016: President Clinton (a man who also avoided military service in Viet Nam) will deliver one of the eulogies (I hope he mentions the “draft resistor” aspect of Ali’s life).
— John Richardson – lawyer for "U.S. persons" abroad (@ExpatriationLaw) June 21, 2015
How could somebody possibly not know about FBAR?
In our case my wife hailed from the Republic of Ireland. We were married in the early 1990’s. As any immigrant knows it is a hard road. Homesickness, difficulties with the Immigration Service, it’s an enormous adjustment. In our immigration packet of hundreds of documents I recall one that was quite frightening. It was from the US treasury and said that if you have more than $10K in assets you need to file an FBAR or you could lose half of what you owe. Thankfully we didn’t owe anything. At that time there was not 1040 tax requirement to list all overseas assets. That came in a few years later, about 1998. By 1997 my wife received a small lump sum pension. It put her over the limit, but by then we had plenty of other issues consuming us that drove the FBAR issue out of our line of sight. She was suffering from a mysterious illness that was weakening her by the month, she was homesick and I was struggling on a new job. I work somewhere else now. It was a very difficult time and difficult times can leave you open to mistakes.
Eventually somehow around 2000 I was reminded of the FBARs but realized that we were already in deep trouble. Had the first offense been in any way reasonable I would have paid up and gotten into compliance. The penalties however were far too harrowing. Today, you look on the internet and there are articles by the hundreds about filing an FBAR. Back then, because the government wisely didn’t enforce the FBAR rules and their draconian penalties, except for the most egregious offenders there simply were no reminders out there.
Fast forward to about 2010 and FBARs suddenly were pressing news, but for many it was simply too late.
There are several problems with the current scheme. Number one the penalties are insanely draconian for people who often owe less than $1K in taxes over the past 8 years. In our case that translates to $10K to a lawyer (the IRS highly suggest you get one) and $29K in IRS penalties. Any way you cut it that is a $40K penalty for less than $1K in back taxes. In fact it is possible that my attorney didn’t include foreign tax credits which could have brought our back taxes down to $0K. Because he is afraid of the Big Bad IRS, he doesn’t want to irk them and get penalized worse or rejected from the OVDP program. Another crazy thing is that if the IRS owes YOU in back taxes for previous years that doesn’t count by their reckoning. The only thing that matters is what you owe them. Therefore if they owe you $5K over the past 8 years but you owe them $3K over the past 8 years – are you ready for this accounting trick ? Therefore you owe them $3K over the past 8 years. They forgive themselves for the $5K that they owe you over the past 8 years. Therefore if in the Real World if you were owed $2K by the IRS thus strengthening your hand in opting out of the OVDP, think again. They only count what you owe them and you cannot carry forward what they owe you to cancel out what you them. How freaking convenient is that ?
This is a very dangerous trend. When truth and common sense are not the basis for our laws and regulations then we cease to live in a free and democratic society.
As I mentioned previously, every day, you and I are either heading to the light or to the darkness. We choose. We make the same choices with our country. It is “We The People” that is the conscience of our government. If we are too indulgent of our government, it is our fault if our government grows perverted, out of control and rapacious. We The People are our countries disciplinarian. We The People make our own collective breaks in what type of government we must live with. Silence is not Golden. It’s Golden only to tyrants.
This post was prompted because …
Today I had a brief conversation with somebody who was moving to America. I thought I would share some thoughts from the conversation. After all, tens of thousands of people move to the United States each year. Some move there as U.S. citizens. Some move there on Green Cards. Some move there on another type of U.S. visa.
The purpose of this is to reinforce some very simple points. I find that people always have more trouble remembering what’s simple. Here goes: Moving to America 1. Taxation of income from your remaining “non-U.S. assets”
You will be shocked to find that many of your “foreign assets” will be subject to particularly punitive U.S. taxation. 2. Reporting of your “non-U.S. assets”
If you are moving to America, you are moving from another country. You will very likely retain financial assets and bank accounts in that country. From a U.S. perspective, these assets are “foreign” and therefore a “fertile ground” for taxation and penalties. Please remember that if you are:
– a U.S. citizen – Internal Revenue Code – S. 7701(a)(1)(50)
– a Green Card holder – Internal Revenue Code – S. 7701(b)(1)(A)
– a person who meets the substantial presence test – Internal Revenue Code – S. 7701(b)(3)
that you are required to file FBARs, FATCA Form 8938s and possibly more forms (the same forms required of Americans abroad) and reporting requirements. Those who are leaving behind a limited company may meet the requirements to file Form 5471.
The failure to meet these reporting obligations has caused untold misery for may immigrants to the USA. Remember how many immigrants to the U.S. were damaged by the OVDI program in 2011. (The hyperlink in the previous sentence leads to a post with 382 comments!) 2. Make sure that you know the fair market value of any assets that you own at the time of your move to the USA. This (depending on your status at the time you entered the U.S.) may have implications for future taxes (including the S. 877A Exit Tax). 3. If possible do NOT enter the U.S. on a Green Card and do NOT acquire a Green Card.
If you acquire the Green Card you are one step away from being subjected to the S. 877A Exit Tax if you decide to leave America! If you only want to live in the United States for business reasons, you should consider a visa that does not allow for “permanent residence” AKA the Green Card. Examples include the E-1 and E-2 visa. Green Card Holders Moving From America
".. also include the green card holders who left, were never citizens anyway, and have no intention of returning." http://t.co/2s5Ifq5sY6
— John Richardson – lawyer for "U.S. persons" abroad (@ExpatriationLaw) June 22, 2015
Potential problems exist for those with a Green Card who move from the USA. A partial list includes:
1. Read S. 877A of the Internal Revenue Code. You will see that if you held a Green Card for 8 of the last 15 years, you will be a “long term resident” and subject to the S. 877A Exit Tax rules.
2. You are deemed to be a tax resident until you File I-407 (or other reasons described in Internal Revenue Code Sec. 7701(b). In order to cease to be a “U.S. tax resident” you would file your I-407. But, be careful! The filing of your I-407 may (depending on whether you are a “long term resident”) trigger the Exit Tax rules! To put it simply: If you file the I-407, and you are a “long term” resident, you will be subject to the S. 877A Exit Tax rules. Extreme caution is warranted! Moral of the story! Be careful. You will avoid many problems by avoiding the Green Card. Conclusion:
To be forewarned is to be forearmed!
Sooner or later the debate about U.S. “place of birth taxation”, will focus on the meaning of citizenship and connection to the country of citizenship. What’s needed to get the discussion going? Sometimes, the most unlikely events (although they are obvious after the fact) become the catalyst.
It turns out that the U.S. World Cup Soccer team has (are you ready for this): Continue reading →
John first gave an overview of US citizenship laws, tax laws, renunciation and relinquishment and many changes that have taken place over decades.
People have many differing circumstances and each one is unique. Because of the complexities, John stressed: “The bottom line is you have to check the law at the time the act took place.”
It all started back in 1961, when Phyllis Michaux, an American woman married to a Frenchman and living in France since 1946, found a friend in a similar situation. They began talking about the future of their children, their American and French citizenship and wondered whether there were other women “out there” in a similar position.
They had a question and an idea. The question was, “How many people are affected by the citizenship law 301(b)?” At the time under section 301(b) of the Immigration and Nationality Act of 1960, children born overseas of one American parent would lose their American citizenship unless they lived five consecutive years in the United States between the ages of fourteen and twenty-eight. Essentially, the children would have to move to the United States sometime before their twenty-third birthday to retain their American citizenship. The idea was to find out how many families were affected. This they did. And they did a lot more along the way.