Relinquished before 2004? Applying for CLN now? What are the IRS consequences?

There’s no question with renunciation (Immigration and Nationalities Act, s. 349(a)(5)).  You are relinquishing your citizenship and notifying the US government of it at the same time, and that’s the date your US citizenship ends.
But what if you relinquished your citizenship by a different method of INS, s. 349(a), such as taking citizenship in another country with the intent to relinquish your US citizenship (349(a)(1))?
The State Department is clear.  No matter when you notify the US govt of your relinquishment, once your CLN application is approved, your US citizenship ended on the date you actually relinquished it (that is the date your performed the relinquishing act, eg. naturalised as a citizen of another country — this date is indicated as your expatriation date on the the CLN.)
The IRS, however, according to s. 877A(g)(4) of the US Tax Code, considers the date of your relinquishment for IRS purposes is not the date of your actual relinquishment but the date you notified the US government of it (your consulate meeting).  This was not the case prior to 2004, however [the relevant section was 7701(n) in 2004 and it was replaced by 877A in 2008].
So, what if you relinquished your US citizenship long ago, but only recently learned of US law and policy changes which make it important to be able to prove you are not a US citizen, and wish to obtain Certificate of Loss of Nationality (a document you probably never even heard of before)?  What if the current law regarding IRS and citizenship termination did not exist at the time you relinquished?  Logic  leads one to the conclusion that laws passed after a person ceases to be a citizen are irrelevant.  The IRS has never made a definitive statement on this issue, however their instructions for the 8854 (expatriation tax form) are only directed at people with expatriation dates “after June 3, 2004.”
Tax lawyers Michael J. Miller and Ellen Brody have just published an excellent article on this matter, Expats Live in Fear of the Malevolant Time Machine, in which they point out the legal, as well as common sense, absurdity of a retroactive application position.  It’s very clear reading with useful references to legislation and case law as well.

3 thoughts on “Relinquished before 2004? Applying for CLN now? What are the IRS consequences?

  1. Thanks Pacifica.
    That article certainly seems to suggest those of us who relinquished prior to 2004 are not the intended targets of IRS. However, I know of a couple of people in that position who filed back dated returns or who went into OVDI.
    At no time, did IRS tell them they were not required to file or to pay taxes to US.
    Mr. Miller and Ms. Brody conclude with: Former US citizens are “understandably terrified that the IRS will pull the lever on a time machine, altering the past so that their relinquishment of U.S. citizenship never happened, with grossly inequitable and devastating consequences. The authors can only hope that the IRS will relieve their suffering by issuing favorable
    written guidance as soon as possible.”
    Yes, wouldn’t it be wonderful if IRS would do just that, on the issues of returns, FBARs and FATCA? The fact IRS has not done so even though it knows quite well how this has affected people does not give me the same hope that the authors have.
    I would be delighted, however, if IRS would to exactly what Mr. Miller and Ms. Brody suggest. I do very much appreciate their efforts.

  2. Unfortunately, Blaze why they SHOULD do that unfortunately they WON’T do that. Any yes I believe it is a very conscious decision at the highest levels of the US Treasury Department. Now I think Michael Miller is right that the odds are very LOW in any particular case that the US would try to make an issue of this but they aren’t zero and the aren’t zero again due to a conscious decision by the US government.

  3. And also I have believed the above since I got involved in this whole mess two years ago. Nothing has changed.
    I also see despite last summer’s streamlined voluntary disclosure program the private letter rullings for RRSP’s are starting to stack up again.

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