The United States of America is the ONLY country in the world that both:
1. Confers citizenship by birth inside the country; AND
2. Imposes worldwide taxation and regulation based on citizenship.
Therefore, it is reasonable to conclude that:
US citizenship is the world’s only true “taxation-based citizenship”.
Afroyim – Should extending constitutional status to US citizenship be understood as a new gift or exacerbating an old curse?
The 1967 judgment of the US Supreme Court in Afroyim could be seen as the "young" gift of citizenship or the expansion of the "old" rule of @citizenshiptax – depending on how you see it. It wasn't until the 2010 #FATCA law that the picture became clear. https://t.co/9rQIVEDf32
— John Richardson – lawyer for "U.S. persons" abroad (@ExpatriationLaw) November 11, 2022
US Citizenship Stripping Before 1967 – The Significance Of Afroyim
The US government was stripping US citizens of their citizenship if they committed various “expatriating” acts. This was codified in statutes that mandated that certain kinds of conduct would result in the loss of US citizenship. At various times the expatriating conduct included (but was not limited to): naturalizing as a citizen of another country, voting in a foreign election, serving in the armed forces of a foreign country and even marrying a non-citizen.
US Citizenship Stripping After 1967 – Afroyim
The 1967 US Supreme Court decision in Afroyim clarified that Congress lacked the power to strip US citizens (who were born or naturalized in the United States) of their citizenship. The Afroyim ruling clarified that:
1. US citizenship belonged to the citizen and could be lost by the citizen only if the citizen voluntarily relinquished US citizenship by voluntarily committing an expatriating act with the intention of relinquishing US citizenship; and
2. Congress cannot enact laws or engage in practices that result in the forcible destruction of citizenship.
— John Richardson – lawyer for "U.S. persons" abroad (@ExpatriationLaw) September 9, 2022
The letter includes statements that bear on:
– the Dutch banks and their FATCA obligations
– Citizenship taxation
– the US commitment to imposing US taxation on Dutch residents who happen to be US citizens.
The main point of the letter seems to be to give the Dutch banks a “Blessing From Their US Overlords” that a notice of FATCA non-compliance will not presumptively follow from allowing US citizens (who live in the Netherlands) to have basic depository accounts (to receive pay and pay bills).
But, let’s get real. Under no conceivable interpretation of the FATCA IGA could the fact of having US citizen customers (with or without SSNs) cause the Dutch banks be in noncompliance with their FATCA obligations.
The Dutch banks simply do NOT want to deal with US citizen clients.
This sentiment is entirely reasonable and is a natural consequence of US regulatory overreach. The letter from Treasury is asking that the Dutch banks accept the worst of both worlds. First, to allow Dutch residents, who happen to be US citizens, to have a bank account at a bank of their choosing. Second, to behave in a way that is contrary to the business interests of the bank (as having US citizen customers certainly is). The arrogance displayed in Treasury’s letter is sufficient reason to be wary of having US citizen clients period.
The FATCA IGAs don’t require the Dutch banks to close “US Accounts”
1. As per the clear terms of the US/Netherlands FATCA IGA, Dutch banks are perfectly free to exempt all “depository accounts” with balances of less than $50,000 USD from FATCA obligations.
2. Even if the Dutch banks were in breach of FATCA obligations, the breach is of no consequence unless US Treasury (A) notifies the Netherlands of that non-compliance and (B) gives them 18 months to cure the noncompliance. (It’s perfectly obvious that Treasury can simply issue a proclamation that residents of the Netherlands are exempt from FATCA. But, history indicates they are not willing to do this!) In other words: FATCA noncompliance is not the problem. It’s Treasury’s reaction to FATCA noncompliance that is the problem.
Therefore, it’s clear the reluctance to have US citizen customers is not principally motivated by a concern of FATCA noncompliance. It’s because the US Government has ensured that US citizens are “toxic (taxic) carbon life forms” and it’s better to avoid them. The “toxicity” (taxicity) is caused by US citizenship taxation – specifically the US attempt to impose worldwide taxation on US citizen Dutch residents who live and pay tax in the Netherlands. In other words: the problem is caused by US citizenship taxation and not by FATCA.
Note that the following updated sentence reflects a change from the original sentence to reflect the comment below
Nevertheless, the threat of bank account closures and the need to respond to the immediate harmful effects of US citizenship taxation (including FATCA), have caused many Americans abroad including accidental Americans in the Netherlands, France and elsewhere to concentrate on the effects of citizenship taxation (FATCA) rather than on citizenship taxation itself. (See the comment below …)
On Friday, Naomi Osaka lit the cauldron at the 2020 Tokyo Olympics opening ceremony. This honour sent an important message to the world: Osaka represents a diversifying Japan.
Yet, some still question whether she really is Japanese.
The question we should be asking instead is: who is Naomi Osaka, really?
Netflix’s new three-part documentary series attempts to answer this question. Director Garrett Bradley followed the tennis player over two years from her first grand slam win in 2018 to her third in 2020.
The documentary touches on her tennis career, her mental health and her call to change the format of post-match press conferences.
But it also gives viewers a closer look at Osaka finding her voice in the world as a young, mixed-race Japanese Haitian woman.
The difference between nationality and race
In the documentary, Osaka speaks about her decision to renounce her American nationality in 2019. Reflecting on the public’s response to her decision, she felt “people really don’t know the difference between nationality and race”.
She is right when she says there is a difference.
Nationality is a form of legal identification specifying our membership to a nation. Race refers to physical appearances, and is often described as a social construct: not determined by scientific fact, but rather by the social meaning collectively attributed to biological traits. To avoid uncomfortable conversations, some choose to use the word “ethnicity” instead of race, a term used to define groups based on invisible factors like language or customs.
Despite the difference in their meanings, race, nationality and ethnicity are deeply interconnected in the ways we discuss identity.
Osaka was born in Japan in 1997 to her Japanese mother and Haitian father. She moved to the United States when she was three and grew up there as a Japanese-American dual national.
During the two years when the documentary was in production, Osaka celebrated her 22nd birthday. According to Japanese Nationality Law, dual Japanese nationals are required to renounce one of their nationalities before they turn 22.
For many, the decision to forfeit one nationality is tricky, uncomfortable and, where possible, avoided by dual nationals only showing their Japanese passport at Japanese airports.
In my research on mixed-race Japanese youth in Australia, participants told me their dual nationality opens up economic and personal opportunities for them to live or work in Japan without the restrictions of a visa.
But perhaps more importantly, the thought of forfeiting their nationality was a great concern for those who saw it as an intrinsic part of their identity.
In the documentary, Osaka says her decision to become a sole Japanese national was an obvious one. “I’ve been playing under the Japanese flag since I was 14”, she says. “It was never even a secret that I was gonna play for Japan for the Olympics.”
But while it was obvious, it wasn’t easy. Some people saw this renouncing of her American citizenship as a decision to forfeit her Black identity:
I don’t choose America and suddenly people are like, “your Black card is revoked”. And it’s like, African American isn’t the only Black, you know?
Despite choosing to become a sole Japanese national, Osaka is both Japanese and Haitian, and holds deep connections to America, Haiti and Japan. The film follows her as she plays for Japan, wears face masks to the US Open in support of the Black Lives Matter movement, and travels with her family to the Osaka Foundation — a school for Haitian children established by her parents.
Navigating identity and expectations
Osaka isn’t the only person facing interrogation into their identity.
Many people of mixed-race heritage often have a sense of “racial impostor syndrome”: the sense of doubt they feel when others question the authenticity of their mixed-race background.
It is common for young persons of Japanese background living outside of Japan to only be beginner to intermediate speakers of Japanese. Speaking about her self-confessed “broken” Japanese skills, Osaka worries she is “doing something wrong by not representing the half Black, half-Japanese kids well.”
But Osaka’s openness about these difficulties is exactly how the half Black, half Japanese kids need to be represented.
Note: This post was originally written in 2015. Parts of this post have been updated in January of 2021. (The original post is here.) The changes reflect the evolution of my thinking. I now believe that Treasury could (or could have) accomplished much of this proposal through Treasury regulations.
The 2015 Obama budget "non-tax proposal" for “dual citizens” cannot be implemented without Congressional approval http://t.co/wFVv9kaxUu
— John Richardson – lawyer for "U.S. persons" abroad (@ExpatriationLaw) February 8, 2015
Part 1 – The Obama 2015 Budget Proposal – Change you can believe in?
It is possible that (at long last) the U.S. government is beginning to recognize that there is a difference between “technical citizenship” and a voluntary U.S. connection indicative of “substantive citizenship” that might (but is not required to) justify taxation of U.S. citizens abroad in the 21st century.