Monthly Archives: May 2016

Dual citizenship, the lack of definition of "citizen" in the "Savings Clause" of U.S. Tax Treaties and why these are important

Introduction …
This is a “follow up” to my first post about the “Savings Clause” in the Canada U.S. Tax Treaty. The purpose of that first post was to demonstrate that pursuant to the “Savings Clause”, the Government of Canada has agreed to allow the United States to impose direct taxation on some Canadian citizens who are resident in Canada. The post generated a fascinating discussion about the “Savings Clause” and was widely discussed at the Isaac Brock Society. A subsequent post at the Isaac Brock Society provided greater detail about exactly how, and in what respects, the Government of Canada has agreed that the United States can impose direct U.S. taxation on some Canadian citizens and residents. One obvious conclusion from this discussion is reflected in the comment that:

Next time someone tells me that the tax treaty relieves double taxation, I’ll tell them that it causes it. We have RDSP’s and RESP’s to prove it.

I absolutely agree. Although there are a few specific areas where the Tax Treaty mitigates against double taxation, for the most part, because of the Savings Clause, the U.S. Canada Tax Treaty, does NOT prevent double taxation. By ensuring U.S. taxation of Canadian residents and citizens, the U.S. Canada Tax Treaty guarantees double taxation!
It’s a myth that the tax treaty prevents double taxation. As John F. Kennedy said in his commencement address at Yale University on June 11, 1962:
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Evolution of process of relinquishing US citizenship in Canada – Form 4079 no longer used

In the last year I have written the following three posts about the evolution of the process of “formal expatriation” (NOT the do it yourself version AKA – simply “delete US citizenship“).
This is the fourth post. This post confirms that the the process in Canada no longer includes Form 4079. Instead a questionnaire has been included as a possible substitute for Form 4079. It appears that those who are applying for “back dated relinquishments” should use the questionnaire to document the basis for the claim.
The first three posts have been:
1. July 10, 2015 -Thoughts on: Major updates to Foreign Affairs Manual on U.S. citizenship renunciation proceduresRelinquishment fee moving from no charge to $2350, phasing out Form 4079, no lawyers allowed at appointments
2. November 4, 2015 State Department Phasing Out Form 4079 for relinquishments of U.S. citizenship – A review the role played by Form 4079 in different U.S. consulates around the world.
3. February 17, 2016 – New instructions to book Canada appointments to relinquish or renounce US citizenshipdescribing the new centralized process for relinquishment U.S. citizenship in Canada
Today’s (May 26, 2016) post confirms that Form 4079 appears to have been eliminated in Canada. What is expected now?. You being the relinquishment process (which includes renunciation) in Canada (different countries have different rules) by emailing: You will then receive a reply email which provides instructions.
That is the contents of the automated reply which provides direction and guidance – Here is the questionnaire that is attached to the email:
Questionnaire from CanadaCLNInquiries
As of May 26, 2016 the reply email includes:
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"Savings clause" in US Tax Treaties guarantees US right of taxation on residents and citizens of other nations

Introduction …

It is commonly believed that U.S. Tax Treaties are for the purpose of preventing “double taxation”. In general, US Tax Treaties do NOT prevent double taxation with respect to Americans abroad. For Americans abroad, double taxation is mitigated (but not prevented) by through Internal Revenue Code S. 901 (foreign tax credits) and Internal Revenue Code S. 911 (Foreign Earned Income Exclusion).
U.S. Tax Treaties include a “savings clause” (found in different sections of different treaties) that:

1. Guarantee the right of the United States to impose taxation on its citizens who are residing in other nations; and

2. Guarantee the right of the United States to impose taxation on its citizens as though the treaty didn’t exist.

Note that these “U.S. citizens” may (and in many cases are) citizens of their country of residence.
Those countries that have signed FATCA IGAs have effectively agreed to assist the United States in imposing taxation on their own citizens and residents. This will allow the United States to legally transfer capital out of the signatory country to the United States Treasury (for better use).
May 2016 – Elazar Cole and the “Savings Clause” …

On May 16, 2010, the U.S. Tax Court in the decision of – Elazar M. Cole v. Commissioner of Internal Revenue, T.C. Summary Opinion 2016-22 (May 2016) – confirmed the principle that a U.S. citizen cannot (as a general principle) use the Tax Treaty to prevent U.S. taxation.

The decision is here:
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Obama budget: "Dual citizens from birth" who are NOT "US residents" should be taxed as non-residents

“It’s unjust, it’s inhumane, I didn’t choose where I was born!”
This accurately describes the sentiments of those who are the target of FATCA Hunt. “Place Of Birth Taxation” is unfair to ALL those it affects. The most visible and egregious example of the unfairness is it’s application to “Accidental Americans“.
The context just imagine …
Imagine having been born in the United States, never having lived in the United States and then being “captured in FATCA Hunt”. It appears that the Obama administration has realized that the most visible unfairness of “place of birth” taxation is the application to Accidental Americans.
As a result, both the 2016 and 2017 Obama budget proposals have contained provisions to allow “Accidental Americans” to relinquish U.S. citizenship without being subject to the S. 877A Exit Tax or without having to certify U.S. tax compliance with respect to worldwide income. Those who qualify would be required to certify U.S. tax compliance on the basis that they were/are subject to the U.S. tax system as “non-resident aliens”. This raises the twin questions of:
1. Who is a “non-resident” alien? – See Internal Revenue Code S. 7701(b); and
2. How is a “non-resident” alien taxed? – See Internal Revenue Code S. 2(d) and S. 871.
I wrote a detailed post, referenced by the following tweet, about this issue in 2015.

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Green Card Holders and #Americansabroad: "Residence", "Long Term Residence" and the S. 877A "Exit Tax"

Tax jurisdiction and residential ties

The two types of residential ties considered for all aliens

When considering the meaning of “residence” for tax purposes, attempting to ascribe a place of “residence “to an individual, and imposing taxation on individuals, the Internal Revenue Code considers:

A. The extent of “residential ties” to the United States; and
B. The extent of “residential ties” to another country.

We see both aspects of residence considered as a way to defeat the “substantial presence” test in Internal Revenue Code S. 7701(b). If the country of residence is uncertain, or if a person is considered to be a “tax resident” of the United States and another country, the Internal Revenue Code considers ties to both the United States and the other country in question.

For “resident aliens” (Green Card Holders):

– both past and present residential ties to the United States and to other nations are considered in at least three ways under the Internal Revenue Code itself; and

– residential ties to both the United States and the other country of residence are considered in determining residence under Article IV of the Canada U.S. (and other) tax treaties**.

Green Card Holders and tax residence

A previous post discussed the fact that:

  1. Internal Revenue Code S. 7701(a)(30) defines “U.S. Persons” as including “citizens” and “residents”
  2. The combined effect of Internal Revenue Code S. 7701(b)(1) and S. 7701(b)(6) define Green Card Holders in a way that ensures that they meet the statutory test of “residence”. (Of course Green Card Holders  may be able to defeat the status of “resident” by making use of the Treaty Election in Article IV of the Tax Treaty)
  3. The statutory defenses to “residence” found in S. 7701(b) of the Internal Revenue Code, available to “aliens” who are NOT Green Card Holders, take into account and are a function of the extent of residential ties to other jurisdictions

Residence matters and residence matters hugely. Hence, the definition of “resident” matters and matters hugely.

Congress has directed its attention to the question of the kind of physical connection to the United States, that justifies deeming one to be a “resident” for tax purposes. Interestingly, the definition of “citizenship” has NOT received the same attention. Nor is “U.S. citizen” defined in the Internal Revenue Code.

The purpose of this post is to consider how actual U.S. residence affects the taxation of Green Card Holders.
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Physical presence as a necessary condition for being a US "resident" under the Internal Revenue Code


Every country in the world with the exceptions of Eritrea and the United States claim tax jurisdiction based on “residence”. Although the tests for “residence” may differ, “residence based taxation” means that it is possible to sever your tax connection to a country by severing residence.

The nations of Eritrea and the United States impose taxation based on citizenship. U.S. citizens (primarily those “Born In The USA”) can NEVER sever their tax connection to the United States as long as they remain citizens. When it comes to U.S. citizenship-based taxation it is possible to NEVER have lived in the United States and still be subject to taxation!

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