Why Boris Johnson must relinquish US citizenship on the occasion of his appointment as British Foreign Minister

cross-posted from the citizenshipsolutions dot ca blog

A recent post (July 7, 2016) on this blog began with:

Prologue – U.S. citizens are “subjects” to U.S. law wherever they may be in the world …

Yes, it’s true. In 1932 (eight years after the Supreme Court decision in Cook v. Tait), Justice Hughes of the U.S. Supreme Court, in the case of Blackmer v. United States ruled that:

While it appears that the petitioner removed his residence to France in the year 1924, it is undisputed that he was, and continued to be, a citizen of the United States. He continued to owe allegiance to the United States. By virtue of the obligations of citizenship, the United States retained its authority over him, and he was bound by its laws made applicable to him in a foreign country. Thus, although resident abroad, the petitioner remained subject to the taxing power of the United States. Cook v. Tait, 265 U.S. 47, 54 , 56 S., 44 S. Ct. 444. For disobedience to its laws through conduct abroad, he was subject to punishment in the courts of the United States. United States v. Bow- [284 U.S. 421, 437] man, 260 U.S. 94, 102 , 43 S. Ct. 39. With respect to such an exercise of authority, there is no question of international law,2 but solely of the purport of the municipal law which establishes the duties of the citizen in relation to his own government. 3 While the legislation of the Congress, unless the contrary intent appears, is construed to apply only within the territorial jurisdiction of the United States, the question of its application, so far as citizens of the United States in foreign countries are concerned, is one of construction, not of legislative power. American Banana Co. v. United Fruit Co., 213 U.S. 347, 357 , 29 S. Ct. 511, 16 Ann. Cas. 1047; United States v. Bowman, supra; Robertson v. Labor Board, 268 U.S. 619, 622 , 45 S. Ct. 621. Nor can it be doubted that the United States possesses the power inherent in sovereignty to require the return to this country of a citizen, resident elsewhere, whenever the public interest requires it, and to penalize him in case of refusal. Compare Bartue and the Duchess of Suffolk’s Case, 2 Dyer’s Rep. 176b, 73 Eng. Rep. 388; Knowles v. Luce, Moore 109, 72 Eng. Rep. 473.4 What in England was the prerogative of the sov- [284 U.S. 421, 438] ereign in this respect pertains under our constitutional system to the national authority which may be exercised by the Congress by virtue of the legislative power to prescribe the duties of the citizens of the United States. It is also beyond controversy that one of the duties which the citizen owes to his government is to support the administration of justice by attending its courts and giving his testimony whenever he is properly summoned. Blair v. United States, 250 U.S. 273, 281 , 39 S. St. Ct. 468. And the Congress may provide for the performance of this duty and prescribe penalties for disobedience.

It’s that simple. If you are a U.S. citizen, some would argue that you are the property of the U.S.government.

On the other hand (and this will be the subject of another post), the Supreme Court decisions in Cook v. Tait and Blackmer v. The United States were decided in an era where there was no U.S. recognition of dual citizenship. It is reasonable to argue that these decisions have no applicability in the modern world.

There will be those who will say: Come on! Get real! The United States would never rely on these old court decisions. Well, they still do cite Cook v. Tait. Mr. FBAR lay dormant until it was resurrected by the Obama administration as the “FBAR Fundraiser“.

Dual Citizenship: What is the “effect” of a U.S. citizen also holding the citizenship of another nation?

The State Department description includes:

However, dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries. Either country has the right to enforce its laws, particularly if the person later travels there. Most U.S. nationals, including dual nationals, must use a U.S. passport to enter and leave the United States. Dual nationals may also be required by the foreign country to use its passport to enter and leave that country. Use of the foreign passport does not endanger U.S. nationality. Most countries permit a person to renounce or otherwise lose nationality.

The life and times of Boris Johnson – A United States taxpayer by birth

Assumptions about Mr. Johnson’s citizenship …

I am assuming that he became both a U.S. and U.K. citizen by birth. I also assume that he remains both a U.S. and a U.K. citizen.

A U.S. Centric Perspective: As a U.S. citizen, Mr. Johnson is defined primarily in terms of taxation. On the occasion of Mr. Johnson’s recent appointment as the U.K. Foreign Minister, the Washington Times published the following article.

The article referenced in the above tweet provides an interesting summary of the Mr. Johnson’s adventures with the U.S. tax system. The article demonstrates how U.S. “place of birth” taxation is used to extract capital from other nations and transfer that capital to the U.S. Treasury. (As always the comments are of great interest.)

A non-U.S. Centric Perspective: Mr. Johnson is a “poster boy” for the problems of the U.S. “place of birth taxation” (AKA “taxation-based citizenship”). Mr. Johnson’s “IRS Problems” resulted in raising the profile and awareness of U.S. tax policies. A particularly interesting article written by Jackie Bugnion and Roland Crim of “American Citizens Abroad”.

At a minimum, Mr. Johnson is subject to IRS jurisdiction, IRS reporting requirements, IRS threats and penalties and IRS assessments.

Boris Johnson has now been named the U.K. Foreign Minister …

How does his United States citizenship impact on this situation? Is it possible for him to be both a U.S. citizen and the British foreign minister? The “logical answer” is “Yes he can”. That said, having a U.S. citizen as the U.K. foreign minister raises many questions.

These questions include:

1. What effect (if any) does Mr. Johnson’s acceptance of this position have on his retention of United States citizenship as a matter of U.S. law?

2. If his acceptance of the position were a “relinquishing act” (under U.S. law) would Mr. Johnson be subject to the United States S. 877A Exit Tax?

3. Assuming that Mr. Johnson were to retain “dual” U.S./U.K. citizenship, how would his “divided loyalties” impact on this ability to serve as the British foreign minister?

4. Assuming that Mr. Johnson were to retain “dual” U.S./U.K. citizenship, how does the fact that the IRS has the jurisdiction to threaten him with fines and penalties impact the situation? What about the reporting requirements?

5. Should Boris Johnson formally relinquish his U.S. citizenship in order to avoid the conflict of interest that would arise because of divided loyalties?

Each question will be considered separately. Here we go …

1. What effect (if any) does Mr. Johnson’s acceptance of this position have on his retention of United States citizenship as a matter of U.S. law?

The law – S. 349(a) – Immigration and Nationality Act

(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality—
or

(2) 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; or

(4)
(A) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state; or (B) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years for which office, post, or employment an oath, affirmation, or declaration of allegiance is required; or

(5) making a formal renunciation of nationality 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; or

 
It appears that by accepting the position of Foreign Minister that Mr. Johnson has voluntarily committed an “expatriating act”. The “expatriating act” would be a “relinquishing act” if it were performed with the intention of relinquishing U.S. citizenship. (Of course, if he lacked the intention to relinquish U.S. citizenship by becoming the British foreign minister he could still formally renounce U.S. citizenship.)

The interpretation of the law – the State Department Foreign Affairs Manual

Normally the State Department works with an “administrative presumption” that a U.S. citizen who commits an expatriating act does so with the intention of retaining U.S. citizenship. In other words, although the United States does not like “dual citizenship”, it accepts that dual citizenship exists.

The “administrative presumption” that one intends to retain U.S. citizenship does NOT apply when a U.S. citizen accepts a “policy level” position in a foreign government. As “Foreign Minister” Mr. Johnson has accepted a “policy level” position.

7 FAM 1281 INTRODUCTION

(CT:CON-285; 03-06-2009)

a. This subchapter addresses the subject of development of loss-of-nationality cases involving persons who:

(1) Have accepted, are serving in, or performing the duties of any office, post, or employment under the government of a foreign state or political subdivision thereof;

(2) Have attained the age of 18; and

(3) Have the nationality of the foreign state or have taken an oath of allegiance to the foreign state.

b. The U.S. Supreme Court has ruled that a person cannot lose U.S. nationality unless he or she voluntarily and intentionally relinquishes that status (Vance v. Terrazas, 444 U.S. 252 (1980)). The Supreme Court underscored in Vance v. Terrazas that “expatriation depends on the will of the citizen rather than the will of Congress,” and the Department gives great weight to the expressed intent of the individual. However, the Terrazas Court also recognized that intent may be “expressed in words or found as a fair inference from proved conduct,” and the Department has taken the view that actions inherently inconsistent with allegiance to the United States may be more probative than words. See 7 FAM 1285 for a fuller discussion of the subject.

c. The presumption stated in 7 FAM 1222, paragraph a, found in 22 CFR 50.40, that a U.S. citizen/noncitizen national intends to retain U.S. nationality applies when he or she accepts nonpolicy level employment in the government of a foreign state. (See 7 FAM 1285 for a discussion on what constitutes a policy-level position which the Department now construes as meaning a head of a foreign state.)

d. If a consular officer becomes aware that a U.S. citizen/noncitizen national accepted a nonpolicy-level position in the government of a foreign state and the individual does not advise you that his or her intent was to relinquish U.S. nationality, the administrative presumption of intent to retain citizenship applies. You should:

(1) See 7 FAM Exhibit 1223 and prepare the Consular Officer Attestation of Non-Loss;

(2) Enter case in ACS System; and

(3) Send attestation to Passport Records for filing attached to Form DS-11, Application for a U.S. Passport, Form DS-82, Application for a U.S. Passport by Mail, or Form DS-4085, Application for Additional Visa Pages, or other passport service. If the person is not applying for a passport, use Form DS-4085, which has been modified for this sort of purpose.

e. If the person indicates that he or she did intend to relinquish U.S. nationality in accepting a nonpolicy-level position in the government of a foreign state, follow the procedures outlined in 7 FAM 1220 for development of a loss-of-nationality case.

f. The presumption of intent to retain nationality is not applicable to a policy-level job, but that said, the intent to relinquish nationality must always be established, including for a foreign government policy-level position. Much depends on the nature of the position. Many policy-level jobs involve relatively mundane duties, e.g., health, education, etc., which do not have implications for allegiance. Additionally, even higher-level positions with a foreign government may not be inconsistent with loyalty to the United States. In Vance v. Terrazas, the U.S. Supreme Court recognized that intent can be expressed “in words or found as a fair inference from conduct.” (See 7 FAM 1285 for a discussion of the Department position that for the purposes of INA 349(a)(4) (8 U.S.C. 1481(a)(4)) a policy level position constitutes a head of a foreign state.) Development of a loss of nationality for a person in such a position is explained in 7 FAM 1286.

Therefore, the State Department would be required to explore whether Mr. Johnson accepted the role of British foreign minister with the intent to relinquish U.S. citizenship. If Mr. Johnson agreed that he intended to relinquish U.S. citizenship by becoming the British foreign minister, it is likely that the State Department would determine that he had relinquished.

2. If his acceptance of the position of “foreign minister” were a “relinquishing act” (under U.S. law) would Mr. Johnson be subject to the United States S. 877A Exit Tax?

Why is this important? Isn’t this a private matter? NO, this is NOT a private matter. The U.S. “Exit Tax” found in S. 877A of the Internal Revenue Act is a way in which the United States exercises control over individuals. (Obviously the British foreign minister cannot be subject to control by a foreign nation.)

The S. 877A Exit Tax In General:

Whether by “accident” or whether by “design”, it’s application is particularly punitive in relation to Americans abroad. To put it simply: The S. 877A Exit Tax operates to virtually confiscate the non-U.S. pensions and the non-U.S. assets of Americans abroad. The Exit Tax is designed to create disincentives to relinquish U.S. citizenship. Of course, by remaining a U.S. citizen, Mr. Johnson as Britain’s foreign minister, would remains subject to U.S. jurisdiction.

The “Dual Citizen” Exemption From The Exit Tax:

Remember our assumption that Mr. Johnson was born BOTH a U.S. and U.K, citizen. This fact (along with additional circumstances found in the statute including U.S. tax compliance) allows him to relinquish U.S. citizenship and avoid the S. 877A “Exit Tax”.

3. Assuming that Mr. Johnson were to retain “dual” U.S./U.K. citizenship, how would his “divided loyalties” impact on this ability to serve as the British foreign minister?

Mr. Johnson is NOT just an ordinary citizen. He has lived a privileged and successful life. I am reminded of the wisdom:

“To whom much is given, much is expected.”

Since British foreign policy will necessarily diverge from U.S. foreign policy, Mr. Johnson simply cannot have allegiance to both nations and be the foreign minister of one nation.

(This topic reminds me of the “Christine Keeler” chronicles. Although not a perfect analogy, Ms. Keeler was a London socialite who had links to both the British and Russian governments.)

4. Assuming that Mr. Johnson were to retain “dual” U.S./U.K. citizenship, how does the fact that the IRS has the jurisdiction to threaten him with fines and penalties impact the situation? What about the reporting requirements?

It’s really about Mr. FBAR and the other “reporting requirements”. Under the current law, Mr. Johnson is required to report to the Financial Crimes Division of U.S. Treasury (FinCEN) information about accounts that he has:

– signing authority over; and/or

– can control the disposition of funds …

This is clearly an intolerable situation.

The attitude of the United States toward the obligations of Americans abroad to report on their “local” financial accounts in other nations is included in S. 6038D of the Internal Revenue Code as follows:

(g) Reasonable cause exception

No penalty shall be imposed by this section on any failure which is shown to be due to reasonable cause and not due to willful neglect. The fact that a foreign jurisdiction would impose a civil or criminal penalty on the taxpayer (or any other person) for disclosing the required information is not reasonable cause.

Congress is saying that: When it comes to the reporting requirements, and U.S. citizens living outside the United States, the laws of the United States take precedence over the laws of the country where the person resides. This is true even when the individual is a citizen of that other nation and has never lived in the United States!

5. Should Boris Johnson formally relinquish his U.S. citizenship in order to avoid the conflict of interest that would arise because of divided loyalties?

In my opinion the answer is: Yes, Boris Johnson must relinquish his U.S. citizenship upon his becoming the British foreign minister. This is NOT just a question of optics and the “appearance” of possible conflicts of interest. The U.S. claims the right to control the finances and lives of U.S. citizens abroad. U.S. citizens abroad are also subject to the threats of fines and penalties that are part and parcel of “Life In The Penalty Box“. (It’s very difficult for Americans to live abroad in a FATCA and FBAR world.)

(It’s fair to say that the United States (given its negative attitude toward dual citizenship) and the reality of “divided loyalties would be unlikely to allow a “dual citizen” to have a cabinet level position in the U.S. Government.)

I began writing this post without a title for the post. The title of the post will be:

“Why Boris Johnson must relinquish US citizenship on the occasion of his appointment as British Foreign Minister”.

His relinquishment may be accomplished in one of two ways.

1. He can relinquish U.S. citizenship by stating that he voluntarily assumed the role of British foreign minister with the intention of relinquishing U.S. citizenship; or

2. He can formally renounce U.S. citizenship.

Since he is now the British foreign minister, it is incumbent on him to inform the people of the U.K. how he is resolving the question of his U.S. citizenship. He simply cannot allow the United States to continue jurisdiction over him!

John Richardson

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