Possible relinquishment route for CLN for some duals-at-birth in Canada

Some persons born dual US-Canadian citizens at birth, particularly those born of even one Canadian parent on US soil and with no adult connections to or claims on US citizenship, may have a viable relinquishment option (as distinct from a renunciation option, open to almost everyone) for getting a Certificate of Loss of Nationality of the United States (CLN). Please see other threads of this and our partner website for a discussion of the difference between relinquishment and renunciation and why it might matter to you.

I learned yesterday by private email something I had suspected but had not been confirmed. Some duals-at-birth have, ideally after the age of 18, applied for and received a Canadian Citizenship Card from Citizenship and Immigration Canada at some point in their past. To get such a card, one has to provide evidence (in these cases) that at least one parent was a Canadian citizen at the time you were born, and you also must swear and sign an oath of allegiance to the Queen of Canada.

There are seven different ways you can lose American citizenship, according to 8USC1481 see here http://www.law.cornell.edu/uscode/text/8/1481

Section 1, the most common relinquishment route in Canada AFAIK, is by obtaining naturalization in a foreign state (Canada) after reaching the age of 18 years. Duals at birth can’t qualify for this, since they were born duals and didn’t naturalize.

Section 5 covers renunciation of US citizenship “before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State.” (Digression: please note this is the ONLY section of the law passed by Congress that says anything about diplomatic or consular officers or forms prescribed by the Secretary of State; but never mind that for now.)

Section 2 however says you can lose your US citizenship “upon taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years.” Gosh gee, that sounds like swearing an oath of allegiance to the Queen upon applying for a Canadian citizenship card, doesn’t it?

Some time ago, on my urging, a dual-at-birth friend applied to Citizenship and Immigration Canada for a copy of his citizenship file through the Access to Information Act, at a cost of $5 and completion and submission of the appropriate form. The link is here:

http://www.cic.gc.ca/english/department/atip/form-imm5563.asp

We have long known that anyone who became a Canadian by naturalization will have a file with CIC and can access a copy of its contents through this process. What I was not sure about, was whether duals-at-birth who applied for a citizenship card or certificate also would have a file there. I suspected and hoped so, and it turns out I was right. My friend swore his oath (over the age of 18) more than 30 years ago, and yes he now has a copy of his signed oath and all other papers in his file. This should be true of every Canadian who has ever applied for a citizenship card or certificate.

I am not a lawyer, but I would be amazed if anyone who swore that oath and got the card after the age of 18 could not get a relinquishment CLN from the US State Department, certifying they actually lost their US citizenship back whenever they swore that oath, assuming the “preponderance of evidence” they provide and swear to on State Department Form 4079 is consistent with an intent to relinquish their US citizenship (basically, sworn statement supported by whatever documentation is possible to prove a negative, that they have done nothing significant since committing their claimed relinquishment to assert or exercise US citizenship and thereby refute or rebut their relinquishment claim).

I should add that at the moment, I am unaware of anyone having applied for a CLN using this argument, and hence do not know for certain whether it will work. I see no reason why it shouldn’t, but one never knows does one? If anyone reading this post has applied using this argument, please reply to this thread and tell us what happened. As soon as I hear definitively from anyone I know that they’ve tried this (whether successfully or otherwise), I will report back on this thread accordingly.

If you are a dual-at-birth Canadian-American and the foregoing applies to you, I urge you to apply for a copy of your file at the above link. You are not committing yourself to any specific course of action with the US State Department by doing so; in fact, under the law CIC cannot inform any third party of your request for a copy of your file. What you do with the contents of that file, or don’t do, upon receipt, it entirely at your discretion and at no penalty other than the $5 fee and the waiting time. They try to reply within 30 days, but the reality of workloads and staffing levels in these offices means realistically you’ll be waiting longer than that. And if a lot of folks start applying for their files (for naturalization as well as for citizenship card cases), that workload is going to jump.

If the above applies to you, I urge you to apply now for a copy of your file. You will have several weeks (at least) to think about whether you want to proceed with a claim for a relinquishment of US citizenship, but you might as well get the ball rolling on getting a copy of your file now – which is your right as a Canadian citizen, exercised for whatever reason you wish.

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About schubert

I've had a CLN (Certificate of Loss of Nationality of the United States) since 1976, quite by accident (DOS mailed me one after I wrote a long anti-US letter to Henry Kissinger on July 4, 1976, telling him I'd become a Canadian citizen several months earlier and why, then confirming on a form I got in the mail that I had done so willingly - duh! - and with the intent of relinquishing my US citizenship). I filed the CLN away and forgot about it until August 2011 when I first heard about FATCA and FBAR and realized I needed to find the proof I am not an American in spite of my birthplace. My wife, who came to Canada with her ex before I did and also became a Canadian citizen, believed she'd thereby lost her US citizenship but didn't write Kissinger, didn't know anything about CLNs or the need to get one (nor did I at the time), and applied for a relinquishment CLN a few months ago. Until August 29, 2012, we were waiting to get her CLN, and it has been in her interests that I'm monitoring and occasionally participating in this and the IBS website. However, joy of joys, wonder of wonders, my wife's CLN arrived in the mail on that date, so now we both have CLNs. I will continue to monitor and contribute to this website as I have time and when I think I have something constructive to add, but after 12 months of Hell we're going to get our sanity and lives back, and that means a prolonged vacation from anything related to CLNs, IRS, FATCA, or any other such crap, unless it rears its head and threatens Canada and Canadians to the point where I have to come out of my corner fighting again ...

16 thoughts on “Possible relinquishment route for CLN for some duals-at-birth in Canada

  1. @ Steve,

    A person can renounce (or apply for a relinquishment-based CLN) their citizenship before they are up to date in their tax filing. They must file the required tax forms by June 15th of the following year.

    I’ll just use the word “renounce” in the rest of this comment, but it’s clear from the 8854 instructions that if the relinquishing act occurred after 4 June 2004, the date the person signs their CLN application at the consulate is considered the date of citizenship termination by IRS — 26 US Code 877A(g)(4) http://www.law.cornell.edu/uscode/text/26/877A (also in 8854 instructions)

    Dept of State deals only with the citizenship itself; and citizenship, or loss of it, is not dependent on one’s tax status.

    DoS doesn’t concern itself with IRS matters, basically doesn’t care, not their department. They don’t harass, or even ask, you about it at the consulate. Dept of State’s only involvement/connection with tax is the following:

    (1) At the consulate the person signs DS-4081, the Statement of Understanding of Consequences. One of the 12 items in this Statement is Item 10, which refers to tax consequences.

    http://www.state.gov/documents/organization/81607.pdf

    (2) Dept of State is to provide IRS with a copy of each CLN they issue, as per DoS Interagency Coordination and Reporting Requirements.

    http://www.state.gov/documents/organization/113465.pdf

    You can renounce prior to filing back tax forms.

    You have until June 15th of the year following your renunciation to certify that you have been tax compliant for the five years prior to your renunciation.

    This certification is a yes/no question on the exit tax form (8854), which reads: “ Do you certify under penalties of perjury that you have complied with all of your tax obligations for the 5 preceding tax years?”

    So, to wrap things up with IRS, if you renounced on, say, 23 January 2014, you’d have to have filed the following with IRS by June 15th, 2015 (when I write 1040s, I mean any other forms required with it as well):

    (1) 1040s for 2009-2013,
    (2) a partial year 1040 for all income to 1 Jan – 22 Jan 2014;
    (3) for your US source income, a partial year 1040-NR for 23 Jan – 31 Dec 2014, declaring only your US source income.
    (4) 8854.

    If a person doesn’t file, it causes “covered expatriate” status with IRS http://www.irs.gov/pub/irs-pdf/i8854.pdf. However, the citizenship itself remains terminated as of renunciation day and the CLN remains valid.

  2. @Blaze and Pacifica,

    Thanks for those clarifications… I think :( Hmm this is just not straightforward no matter how I look at it. I am indeed aware that as long as I stay in Canada, there is basically nothing the IRS can do to me regardless of what I file or don’t file. Which is nice. But it would be nicer to be in their good graces instead of in their to-be-prosecuted file. If I can’t relinquish my citizenship at this point, either presently or retroactively, how bad would it be to renounce it instead? I know they want the tax forms to be up to date in order to allow that. And currently mine are not, because of the FBARs (and now the FATCA too). So my initial plan was to file all those back forms, then renounce in good faith, and not be charged any exit taxes. What if I don’t file the forms, then attempt to renounce anyway? They won’t know that I am not compliant if I haven’t filed anything. And after I renounce, it won’t matter. Right?

  3. Unfortunately, I don’t think taking an oath of allegiance to Canada when a person is a citizen of Canada would be considered a relinquishing act, based 7 FAM 1252 of the Dept of State Manual. Taking an Oath of Allegiance to a Foreign State. [I indicated the relevant sentences by **]
    http://www.state.gov/documents/organization/120544.pdf

    “1252(h). For an oath or affirmation to be potentially expatriating, it must be meaningful. A meaningful oath is one that is required by a foreign state. **Such an oath reflects a transfer of allegiance to a foreign state and/or the abandonment of allegiance to the United States.** [Gillars v. United States, 182 F.2d 962 (DC 1950)]. An oath or affirmation will be found to be meaningful only if all four of the following criteria are met:
    (1) The oath or affirmation is made to an official of a foreign state author
    ized to receive the oath or affirmation;
    (2) The authorized foreign official in fact does receive the oath or affirmation;
    (3)The oath or affirmation is made in a manner that is consistent with the
    foreign state’s law; and
    (4) **The making and receipt of the oath or affirmation alters the affiant’s legal status with respect to the foreign state.”**

  4. Steve: The big problem is no one can possibly understand the IRS–not even the IRS in many situations. Their tax code is something like 74,000 pages, I understand it is longer than the complete works of Shakespeare combined (and just as difficult to understand).

    I think you are correct in not filing anything. That is my personal opinion only. Many lawyers and accountants do not agree with me. If you speak with several of them, you will likely get several different opinions about what to do.

    I hope Pacifica will be able to comment about whether DOS would allow you to relinquish based on swearing an oath now. Unfortunately, some of the bizarre technical problems we had last week are not even greater problems and she is not able to log into Sandbox at all.

    We are aware of at least one other person with that problem. I hope we have it fixed soon.

    Are you aware CRA does not and will not collect penalties or taxes for IRS on a Canadian citizen? The Minister of National Revenue reconfirmed that the day the IGA was announced.

  5. @Blaze, what you say makes sense. Just trying to work out a strategy for dealing with all the IRS nonsense. Of course I am not compliant with all the FBAR and FATCA filings. And I am thinking that I like Schubert’s strategy of simply refusing to file any of them. I am prepared to not cross the border again ever, if it comes to that. But if any alternative would have worked, like retroactively invoking a CLN and becoming slightly less noncompliant that way, that would be better. It doesn’t seem like that’s going to happen though. I’ll check my citizenship status anyway in case I accidentally took a citizenship affirming step without knowing about it.

    Otherwise, possibly my best bet is to swear the oath now, then request the CLN, and then file nothing at all afterwards (including late FBARs etc.). If they do try to penalize me, which sounds unlikely, I can just ignore them, and it sounds like I will be safe anyway as long as I don’t go back there…

  6. @Steve: Those actions you took after working for the Canadian government certainly seem to indicate you did not intend to relinquish your US citizenship when you worked for the Canadian government.

    To work in the US, you would have had to have done that as a US citizen or a Green Card holder. Even if it was as a Green Card holder, that may make you a “US person.”

    I don’t know if the US government would accept you swearing an oath now, but I doubt it. Even if it did, that oath would be sworn after 2004, which means for tax purposes, you would be considered to be a “US person” until the date you advise the Consulate of your swearing the oath.

    I know how distressing this is and that it is definitely not what you want to hear.

  7. Okay fair enough, thanks for that tip calgary411. I did work for the Canadian government a while back, after turning 18… 8 USC § 1481 (a) (4) (A) states that this is also an acceptable reason. But since then I have taken steps (unwittingly) that took advantage of remaining a US citizen, such as working in the US for a period of time, applying for a US passport, etc. If I apply for a CLN based on working for the Canadian government earlier, would that have been invalidated by my later actions? Would they even notice? Would it just be easier to apply for a Canadian citizenship card now, swear an oath, and use that as the basis for the CLN?

  8. Steve,

    There has been a lot of discussion on that — unfortunately, no, won’t wash with US Department of State / US Consulate for claim to relinquishment.

  9. Hmm, does applying for (and receiving) a Canadian passport count as “making an affirmation or other formal declaration of allegiance to a foreign state”? It sounds suspiciously like it might… I don’t think I swore any oaths in the process of doing that, but it definitely required an affirmation of Canadian citizenship.

  10. As I’ve noted in replies I’ve posted on other threads yesterday, the official 2013 IRS instructions for their Form 8854, Initial and Annual Expatriation Statement, only refer to expatriations (aka relinquishments) occurring after June 3, 2004. There is NO reference to expatriating acts that took place prior to that date, on the form nor in the instructions.
    http://www.irs.gov/instructions/i8854/ar01.html#d0e1183

    Also please note here http://www.irs.gov/uac/Form-8854,-Initial-and-Annual-Expatriation-Statement the following words:

    Form 8854, Initial and Annual Expatriation Statement

    Expatriation tax provisions apply to U.S. citizens who have relinquished their citizenship and long-term residents who have ended their residency (expatriated). This form is used by individuals who have expatriated on or after June 4, 2004.

    I.e., if you expatriated before June 4, 2004, this form doesn’t apply to you. There is no guidance of which I’m aware as to what, if anything, you should now do in that case, which I think is reasonable to interpret as meaning you do nothing. You don’t own them a single piece of paper, if that date restriction applies to you. Hence, if you can and did so before June 4, 2004, relinquish, DO NOT RENOUNCE.

  11. Forgive any duplication, but I was reminded in an email I got today of the following article that Michael Miller co-authored and got published, which spells out in very clear detail that, and why, no one with a pre-June 3, 2004 relinquishment has any reason to file a damn thing to the IRS under the relevant legislation.

    http://www.robertsandholland.com/siteFiles/News/03-05-13_Expats%20Live%20in%20Fear_MJM.pdf

    If your browser has trouble opening this PDF (mine sometimes does), just hover your mouse over the link, right-click, select Save Target As to your desktop, then double-click on the downloaded PDF once it’s there, and Adobe Acrobat Reader will open it and you can read and/or print the article. Your computer almost certainly already has Acrobat Reader, but if it doesn’t, just Google it, pick the Adobe website link, download and install the free software.

    Michael J. Miller is a US tax attorney practicing in Washington. The article cites the seven possible grounds for losing (or relinquishing) US citizenship. The article makes it very clear why it’s important to know whether under US law you relinquished your US citizenship, and why if this occurred before June 3, 2004, you should NOT file tax returns to IRS nor their form 8854 because that simply does not legally apply to you.

    Please note that, as the article says, you were never under any legal obligation to notify the US State Department or the IRS about your pre-2004 relinquishment, unless it was a renunciation (which requires swearing an oath in the presence of a US consular officer outside the United States). Not only did no one know about CLNs or a need to have an interview with State Department, before 2004 it wasn’t even necessary in law. In practical terms, however, you need a CLN to convince a bank under FATCA (if it gets implemented in your country) that you aren’t an American in spite of a US birthplace on a birth certificate or on your passport. Also might help down the road in crossing the US border on a non-US passport showing a US birthplace, though so far neither I nor my wife have ever had to produce our CLNs (we keep copies with our Canadian passports at all times, but don’t produce them with the passport and keep them in reserve to show only if necessary).

  12. This is another roller-coaster, sorry. I just heard back from my informant, from whom I asked for a copy of the wording of the oath. He informs me that in our phone conversation I misheard or misunderstood which oath he was referring to. He has told me in an email that the oath he got is his oath of allegiance that he swore on becoming a Canadian federal public servant, which is what he will likely base his relinquishment claim on. His citizenship-card file does not contain an oath; he spoke with a CIC employee who told him that an oath wasn’t required when he got the card, hence nothing like that in the file.

    I am quite certain that another informant told me she remembers swearing an oath on getting her card (I had thought my other informant also said the same thing, but I guess memories can be tricky, whether his or mine who knows?). So it’s possible that some folks did swear and sign an oath on getting a card, others maybe not. I guess you (and we if you tell us) won’t know for certain unless and until you apply for a copy of your file. I still think it’s something worth checking out.

  13. This might apply to @Nick, but I just read that after he took the oath at age 18 he applied for a US passport. That could be argued though, because he only obtained it because a border guard hassled him and told he he needed it. He never even used it. Still, not the best “test case”. He has government employment as well, which might be an easier route.

    I would make all the claims at once and let them decide which they’d like to use.

  14. There is a possibility that State may accept these oaths from age 16, surprisingly (to me, given the way the law is worded). It’s not clear, but check out a reply to the parallel thread I started over at the Isaac Brock Society website. Someone emailed a consulate and asked about an age-16 oath of allegiance, and was told they couldn’t make a determination by email, he’d have to come in for an interview and with documentation.

    The point is, as the individual noted, they didn’t actually just say “no.” Which they could have.

    See his post and my reply here
    http://isaacbrocksociety.ca/2014/01/21/possible-relinquishment-route-for-cln-for-some-duals-at-birth-in-canada/

  15. A recent arrival at Isaac Brock’s website fits this. His name is Nick, or maybe Bob. I told him last week that his oath should be his CLN ticket. I will make sure he sees this.

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