Introduction:
I have been blogging on U.S. citizenship-based taxation since 2011. In February of 2012, I wrote the “Prologue” for this series of posts:
Citizenship renunciations soaring under Obama – Renunciation as an Act of Self Defense
That post included the following poll. The results are shocking!
In January of 2013 I began a series of posts to explore the rationale (if there is one) for “citizenship-based taxation”. I simply cannot understand how the United States of America, a country that once was a leader in human rights, can treat it’s citizens (not to mention Green Card holders) so badly. I assume that Congress has simply not considered this issue.
This series of posts (including the Prologue are):
Cook v. Tait Prologue: Citizenship renunciations soaring under Obama – Renunciation as an Act of Self Defense
Cook v. Tait 1: Does Cook v. Tait really mean that citizenship-based taxation is constitutional in all cases?
Cook v. Tait 2: The presumption of government benefit
Cook v. Tait 3: Legal Scholar agrees justification in Cook v. Tait, but offers new justification for citizenship-based taxation
Cook v. Tait 4: Taxation of #Americansabroad based on US culture 150 years ago! Time warp or what!
Cook v. Tait 5: Citizenship-based taxation was never justified – League of Nations reports!
Cook v. Tait 6: Taxation of Green Card holders who reside outside the U.S.
Cook v. Tait 7: Equality: Law prohibits both rich and poor from sleeping on the park bench
Cook v. Tait 8: Does citizenship-based taxation cross the boundaries of tax justice?
Cook v. Tait 9: US may have to stop citizenship-based taxation to get #FATCA IGAs
Cook v. Tait 10: Those born outside the U.S. to U.S. citizens, may not be U.S. citizens
Cook v. Tait 11: Who should #Americansabroad be compared to for tax purposes? Even U.S. citizens are entitle to “equal protection” under the 14th amendment
Cook v. Tait 12: Afroyim v. Rusk, The 14th amendment and the forcible destruction of citizenship
___________________________________________________________________________________
In our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship. Our Constitution governs us and we must never forget that our Constitution limits the Government to those powers specifically granted or those that are necessary and proper to carry out the specifically granted ones.
– Justice Black Afroyim v. Rusk
Citizenship, the 14th amendment and what Afroyim v. Rusk implies about the limitations of government power (Congress and the Executive)
The 14th amendment is an important part of the U.S. constitution and reads as follows:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In Cook v. Tait 11 I discussed the “citizenship penalty” and the equal protection component of the 14th amendment. I argued that the “citizenship penalty” violates the constitutional guarantee of “equal protection”. Citizenship classifications are reviewable according to the standard of “strict scrutiny”.
This post will discuss citizenship-based taxation in conjunction with the first part of the 14th amendment (“All persons born or naturalized in the United States … are citizens for the United States”). The United States government has a shameful history of using citizenship as a weapon against its citizens. Examples including the pressuring Japanese detainees in World War II to renounce their citizenship, taking citizenship for reasons enumerated as “expatriating acts” in S. 349 of the Immigration and Nationality Act, and most recently the Reed-Schumer proposal to ban “covered expats” who renounce citizenship from the United States permanently. The blogger “Eric” at the Isaac Brock Society has researched the history of what I would call “citizenship abuse”. His posts are a wonderful documentation of an extremely nasty part of U.S. political culture. Senators Reed and Schumer are simply the most recent examples of a sadistic “Congressional Thugocracy” that seems to take delight in inflicting pain on U.S. citizens who leave the Homeland.
It is therefore no surprise that citizenship has achieved constitutional protection in the 14th amendment. But, what exactly is protected? What do the words “All persons born or naturalized in the United States” mean? What has the Supreme Court of the United States interpreted the constitutional guarantee of citizenship to mean? As we will see, the 14th amendment guarantee includes at a minimum:
1. The right to be a United States citizen if you were born or naturalized in the United States. In other words, the Schumers and Reeds of the world cannot take your citizenship from you. It’s yours. It’s one of the few things the government can’t steal from you.
2. The right to relinquish your citizenship. Your U.S. citizenship is yours. You are free to “take it” or “leave it”. Until recently most people were enthusiastic about “taking it”. Now large numbers of people are enthusiastic about “leaving it”. Renunciations are on the rise. The Obama administration has unleashed an unprecedented, unprovoked, unreasonable, unjustifed and unprincipled vicious assault on U.S. citizens abroad. As a result, many are renouncing their U.S. citizenship to protect themselves and their families.
3. Justice Black’s decision in Afroyim strongly states that the 14th amendment protects citizens from the “forcible destruction of their citizenship”. This means the “forcible destruction” of all incidents of citizenship. Incidents of citizenship include both the right to retain and the right to renounce.
Therefore:
A. The government cannot put you in a position where you are forced to renounce your citizenship. “Obama Tax Terrorsism” anyone?
B. The government cannot create conditions which make it impossible or unduly burdensome for one to renounce citizenship. Exit tax anyone?
Justice Black’s closing directive was:
Citizenship is no light trifle 268*268 to be jeopardized any moment Congress decides to do so under the name of one of its general or implied grants of power. In some instances, loss of citizenship can mean that a man is left without the protection of citizenship in any country in the world—as a man without a country. Citizenship in this Nation is a part of a co-operative affair. Its citizenry is the country and the country is its citizenry. The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship. We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.
The U.S. Government, U.S. citizens abroad and the forcible destruction of their right to RETAIN U.S. citizenship
U.S. citizens abroad are living under siege. A wonderful express of this comes from Jackie Bugnion in her submission to the House Ways and Means Committee on Tax Reform. She said:
In 1776, the United States declared independence because the mother country on the other side of the ocean was imposing taxes on the colonies for the benefit of England. Resentment started when Britain tried to enforce the Navigation Act after 1763. Resentment increased with the Stamp Act in 1765, a way for Britain to tax the colonies. The British Tea Act of 1773 led to the Tea Party and we all know the outcome – the American Revolution and independence crying out “no taxation without representation”.
Today, the estimated 7 million Americans resident abroad, of whom the majority are long-term overseas residents in high tax OECD countries, face a comparable situation. Their representation in Congress is non-existent in reality. Americans abroad amount to only 1 to 2% of the votes in any particular state; Congressmen and Senators have ignored their tax issues. The unjustified myth that Americans abroad are wealthy and disloyal restricts a rational approach to the problems because of political image issues.
Citizenship-based taxation (CBT) has existed ever since the federal income tax was adopted. Despite CBT being an anomaly involving double taxation, taxation of phantom gains and explicit tax code discrimination, it was grudgingly tolerated by Americans abroad because it was essentially voluntary, most often involved little tax or no U.S. tax liability and basically was not enforced. In particular, the FBAR filing requirement was so obscure that even the big four accounting firms were not aware of the filing obligation dating from 1970 and failed to inform Americans abroad of the need to file the FBAR.
Since 2001, a series of legislative events have radically changed the situation:
In 2001, the Patriot Act made anything foreign suspect, including Americans residing overseas.
In 2004, Congress, under the Jobs Act, drastically increased the FBAR civil and criminal penalties to confiscatory levels, creating a disguised form of taxation on assets held overseas.
In 2006 administration of the FBAR reports was transferred to the IRS for enforcement.
In 2006 the Tax Increase Prevention and Reconciliation Act (TIPRA) extended the Bush tax cuts and included a compensatory revenue raising provision that reduced the benefit of the foreign earned income exclusion, limited the foreign housing allowance and pushed Americans overseas into higher tax brackets, thereby increasing U.S. tax liabilities for many Americans abroad.
In 2008 the law relating to renunciation of U.S. citizenship was revised under Section 877A and introduced an Exit Tax on wealthy individuals (defined as “covered”). The law also provided that Americans who inherit from estates of former “covered” U.S. citizens are subject to U.S.
inheritance tax with no exclusion. This outrageous discriminatory provision aims to discourage renunciation of citizenship, but in fact penalizes children of former U.S. citizens for an act they did not commit. In practice, it encourages the children to also renounce their U.S. citizenship. In 2009 the IRS launched its initiative against tax evasion linked to foreign assets through the Overseas Voluntary Disclosure Programs and a threatening public relations campaign. While it justifiably targeted U.S. resident tax evaders, it simultaneously trapped Americans abroad who necessarily have foreign assets. The IRS’s one size fits all policy and bait and switch tactics led to abuses of Americans abroad which inspired sharp criticism from the National Taxpayer Advocate.
In 2010 FATCA was slipped into the HIRE bill with no debate in Congress and no cost/benefit
analysis. FATCA aims to provide the door that closes the fiscal trap by requiring foreign financial institutions to report to the IRS on assets held overseas by U.S. persons. It effectively cuts off many Americans from foreign financial institutions which find it too onerous to maintain American clients. FATCA creates a barrier to free movement of capital and people. In 2012 S.3457 proposed to grant the IRS the authority to have a U.S. passport cancelled or not issued if the IRS determined that the individual owed $50,000 or more U.S. tax.
In 2012 the Ex-patriot Act, S.3205, proposed to deny any “covered” expatriate re-entry into the United States, with retroactive effect for ten years prior to enactment of the law. The Reed
Amendment of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act already
allows the United States to deny entry of former citizens into the United States. In 2013, S.268 was introduced; it compounds difficulties created by FATCA.
In 2013 the Senate Finance Committee included in its tax reform recommendations a provision which would grant the IRS authority to cancel a U.S. passport for tax collection purposes.
This stream of legislation and proposals categorizes Americans abroad as suspected criminals seeking to escape U.S. taxes. Congress has outdone George III and has turned the United States into a fiscal prison, including legislation which is deemed anti-constitutional under the Fifth Amendment1 and is contrary to Articles of the Universal Declaration of Human Rights.2
The foundation of the U.S. fiscal prison is citizenship-based taxation. Americans working and living abroad carry a ball and chain of dual taxation throughout their entire lives up to and including death.Americans abroad already pay taxes in the country where they reside and receive governmental services.
The additional U.S. tax obligation creates inevitable incompatibilities and discrimination and even requires Americans abroad to break foreign exchange control laws to pay U.S. taxes.
A revolution among long-term overseas residents is now underway. Five years ago, Americans abroad never talked about renunciation of citizenship. Today, it is a common topic in the press and among the community abroad. For more and more individuals, renunciation is the only solution to an intolerable situation created by the U.S. imposing its laws beyond its borders. The United States is literally destroying the community of Americans abroad, which plays an essential role in representing U.S. interests and goodwill overseas. The United States is shooting itself in the foot.
While the absolute number of renunciations, currently around 2,000 a year, is insignificant compared to the average annual U.S. citizenship naturalizations of 680,000, renunciations have multiplied seven times over the last four years. So far we have seen only the tip of the iceberg if CBT remains in force.
Today’s situation leads to serious hidden prejudice for the United States. U.S. exports are far below where they should to be because citizenship-based discourages U.S. companies from deploying U.S. citizens overseas to sell U.S. products; the law makes them too expensive. U.S. tax law and FATCA create insurmountable barriers for small and medium-sized companies to establish beachheads abroad to develop exports. The loss represents millions of U.S. jobs, hundreds of billions of dollars of exports, billions of dollars of U.S. tax revenue, and an unsustainable trade and budget deficit. Americans married to a foreign spouse, who represent about a third of the Americans resident abroad, now hesitate to register their children born abroad with the U.S. Embassy. The hot thing among young adults in their twenties is to renounce U.S. citizenship; they are aware of the impossible web of U.S. regulations that restrict job opportunities and personal freedom. Pushing away the young generation of Americans abroad is an immense loss to the United States. In prior generations, many highly educated multi-lingual American children returned to the United States, founded companies and created jobs in the U.S.
Adopting RBT will stop this revolution immediately. RBT law needs to be drafted in the spirit to allow free movement of individuals to leave and return to the United States, to reinforce the competitiveness of Americans and the United States overseas, to provide a simple, non-penalizing transition to RBT for the community of Americans already overseas, to ensure that Americans abroad are not subject to FATCA and FBAR, to adapt existing bilateral tax treaties and enter into new tax treaties so that withholding tax rates on U.S. source income are reasonable and to ensure that Americans abroad who have the majority of their assets in the United States (retirement funds, pension funds, real estate) are not disadvantaged under RBT with regard to either income or estate taxes.
I thank you for the opportunity to comment and hold high hopes that your bi-partisan efforts will lead to the constructive tax reform so necessary for Americans residing abroad.
Sincerely yours,
Jacqueline BugnionTo quote again:
The United States is literally destroying the community of Americans abroad, which plays an essential role in representing U.S. interests and goodwill overseas. The United States is shooting itself in the foot.
While the absolute number of renunciations, currently around 2,000 a year, is insignificant compared to the average annual U.S. citizenship naturalizations of 680,000, renunciations have multiplied seven times over the last four years. So far we have seen only the tip of the iceberg if CBT remains in force.
The forcible destruction of U.S. citizenship
The decision of Justice Black in Afroyim v. Rusk states that the forcible destruction of U.S. citizenship is unconstitutional. Jackie Bugnion’s “plea” to the Ways and Means Committee is as clear a statement of the destruction of U.S. citizenship that there could be.
What exactly is causing the forcible destruction of U.S. citizenship?
It is NOT citizenship-based taxation that is causing the forcible destruction of U.S. citizenship. It is “residence based life control” that is forcing the destruction of citizenship. Those who are in compliance with the rules of “residence based life control” are “life compliant”.
There are two types of U.S. citizens abroad: those who are “life compliant” and those who are not “life complaint”. Notice I am not saying “tax compliant”. I am saying “life compliant”. It is entirely possible to owe zero taxes and still not be in compliance with all the other obligations entailed by exercising (what Democrats Abroad call) the “privilege of living abroad“.
“Life compliance” and the constitutionality of citizenship-based taxation
Approximately 100 years ago, in Cook v. Tait, the Supreme Court of the United States ruled that citizenship-based taxation was constitutional. The decision, written by Justice McKenna, rested on the assumption that “government by its very nature benefits its citizens“. If this was true then, it most certainly is NOT true now. But, let’s assume the correctness of the decision and explore it from another angle. Cook v. Tait held that citizenship-based TAXATION was constitutional. In 1924 taxation was a much simpler thing. It didn’t include reporting requirements. It didn’t include the “life compliant” requirements of “residence based life control”. It didn’t include:
“FATCA, FBAR, OVDI, OVDP and the rest of the Treasury/IRS/HIRE/IGA alphabet-soup train wreck that is coming down the tracks to destroy the lives of U.S Persons abroad, and ultimately the homeland United States as well”.
It is NOT the paying of taxes that is the problem for U.S. citizens abroad. The problem is the “requirements of residence based life control” – which are NOT about taxation – but operate to effectively lock U.S. citizens abroad in a fiscal prison that makes their lives impossible.
The U.S. government takes the position that citizenship-based taxation is constitutional. That may or may not be. The U.S. government cannot by calling something at tax, claim that it is justified pursuant to Cook. v. Tait. Although the constitution may allow the U.S. to tax U.S. citizens abroad on their world income. It cannot do it in a way that results in the “forcible destruction of their citizenship”. I have long argued that the problem is NOT citizenship-based taxation per se. The problem is the rules that are applied to U.S. citizens abroad. The problem i is that the rules that are applied to U.S. citizens abroad are the same rules that are applied to Homelanders. The reporting requirements apply to all U.S. citizens. The truth is that reporting requirements apply disproportionately to U.S. citizens abroad. I suspect there are very few Homelanders who have ever heard of the “alphabet soup” collection of forms that apply to U.S. citizens abroad.
There is no reason why U.S. citizens abroad should be subjected to the same rules as Homelanders. In a previous post I argued that under the current rules U.S. citizens abroad are subject to discrimination that may violate the 14th amendment guarantees of equal protection. U.S. citizens abroad are subject to “citizenship penalty” in the way they are taxed.
There are other ways to ensure that U.S. citizens abroad pay their “fair share”. For example, U.S. citizens abroad could simply be charged an annual “fee” to maintain citizenship.
Residence based life control = “the forcible destruction of U.S. citizenship”
Jackie Bugnion and others who sent their submissions to the Ways and Means Committee have it right. “Residence-based life control” is forcing people to renounce their citizenship. The forcible destruction of citizenship is in conflict with Afroyim v. Rusk.
The Schumers of the world would say:
You have a choice!
There is choice only in a “logical sense”. The reality is that “residence based life control” is the equivalent of “constructive dismissal” in an employment context. Imagine you have an employee that you want out. Imagine that you can’t legally fire the person. You should make it impossible – through threats and harassment – for them to continue the job. The reporting requirements, compliance costs, threats and penalties are causing the “forcible destruction of U.S. citizenship”.
Americans abroad are either “life compliant” or not “life compliant”, but either way …
Those who are NOT “life compliant” have to live with the fear of being branded criminals and all the consequences.
Those who attempt to be “life compliant” are in a far worse situation. The harder Americans Abroad try to be “life compliant” the greater the risks. Congress is forcibly destroying U.S. citizenship for all U.S. citizens abroad.
Congress may have the right to tax U.S. citizens abroad. But, U.S. citizens have the right to NOT have their citizenship destroyed by the incidents of that taxation. Most of what Congress calls “citizenship-based taxation” is actually “residence based life control”.
What would the United Nations think?
In 2008 the United Nations celebrated the 60th anniversary of the Universal Declaration of Human Rights. The United States of America celebrated by enacting the Exit Tax. Basically the Exit Tax forces “covered expatriates” to pay
Update January 16, 2014 – Some additional references:
On the issue of the “forcible destruction of citizenship”, I wanted to add the following comment that appeared at the Isaac Brock Society:
Has your life been stolen by the IRS: Comment of the Day
AtticusinCanada has written a nice little summary of her sufferings–I nominate it for the comment of the day award:
My whole life has changed because of this. I’ve felt immense grief that the only way to deal with and move on is to renounce. I always assumed if you were born some place you were entitled to that citizenship without any other need of proof. As long as you didn’t commit treason or some serious crime you were a citizen. I had never, once heard of an FBAR! I called the IRS many times over the years to make sure I still was within their rules and nobody every mentioned such a thing. Nobody mentioned when after 9/11 we were required to get a U.S. passport either. Some have said that it’s written on page 4 of the passport. Well, my vision is VERY bad even with glasses and I never even attempted to read those pages. I assumed if it was anything important I would have been told about it and barely glanced at the tiny,tiny print on those pages. Couldn’t someone have informed us when we landed here? In fact up until I had to get a U.S. passport I wasn’t too sure I was even a citizen there anymore sometimes since the person I spoke with when I landed at Buffalo insisted over and over that “You may lose your U.S. citizenship over this” So when I went for that passport in the back of my mind I was worried they might not give me one. When they did I mentioned the fact I’d been told I might lose my citizenship and the person there did say “No, you were misinformed.” I came here in 1980 so maybe the rules were different or something back then but, I only landed and had not taken citizenship.
The constant worry about money and fines, fees, penalties. The hours and hours lost trying to figure out the right paperwork, how to fill it out, who to trust or not and how in the bloody hell to pay for this “compliance” has made my rheumatoid arthritis flare up over and over when it was under control before. I have been in the hospital once with a terrible breathing problem they couldn’t get under control except for the use of steroids over a long period. I now think this was brought on by extreme stress. The situation was so bad at the hospital that I was questioned about extensive measures and did I want to be “revived” if things got worse. That situation also made my son’s illness worse since one of the things wrong with him is severe panic disorder and depression. He was there and had to witness the situation in the emergency room and hospital. I have no doubt in my mind at all that I was made sicker by worrying over this and fretting day in and day out. Loss of sleep, constantly trying to figure out “the right thing” only to find out that not even the IRS knows the “right thing” many times.
I found out about all this after the death of my mother and in the midst of dealing with a very difficult sibling. I wouldn’t have owed them a thing. In fact they owed me 600 dollars which I am afraid to claim. I still believe there are thousands of people who do not yet know about this at all!
I’ve had my tax forms prepared twice at quite an expense and I’m sure the paperwork is wrong and so have not sent it in. I have not done FBARS as I would need help with them and cannot afford it. My sons illness has flared really badly twice since I found out about this and some of his treatments are very expensive so any “extra” money I have goes to that. Not that we have any “extra” money!
How can anyone actually say how much they are affected by this since it just invades every area of your life. I haven’t been able to put this on the back burner and not worry about it even when something good is happening. As I said above I have one sibling who is a very, very difficult person and so telling my family I’m renouncing has been just peachy. That sibling will use this for the rest of my life to portray me as a “bad” person to other family members at every opportunity. So not only did it strain my marriage, it put me in the position of being a perpetual “black sheep” who will be “tolerated, pitied and disliked” an outsider, not “one of them” I’m so looking forward to having to deal with the dynamics that will go on once I have renounced. Some will know better but, others won’t.
Lately, this situation has lead to problems with my spouse because I haven’t renounced yet. It’s not that I don’t want to. I am terrified to go forward and file all that mess should a penalty be assigned to me. And tax payer advocate or not, I am just not in any physical shape right now to drag myself through such an ordeal. It’s GOT to be done but, this is such a catch 22!
This stupid witch hunt which people inside the U.S. think is going after the uber rich “off shoring” in “tax havens” has done more to harm low and middle income “targets” than anything I’ve seen them do down there in a long time. I have learned a hard lesson about what citizenship taxation is and what it means. I’m sickened by the comments I see on certain U.S. based articles. Is this who they really are?? Oddly, I think not. I think if it were happening to THEM they’d have a completely different opinion which makes them very selfish. The thing I am most angered about at the moment is that comment by President Obama last week that they are paying to fix their infrastructure by “repatriating taxes” First off that is a LIE, it’s NOT “taxes” It is fines and fees and penalties on paperwork nobody ever heard of outside the U.S. for the most part and they know it. If it were taxes it would even come close to being enough as according to American Citizens Abroad 82 percent of expats would owe zero taxes. Secondly, it told me that all this suffering was PLANNED. That they are NOT going to RBT and do not ever want to. That they know what they are doing and know no one inside the U.S. will care.
As some here have said it’s not the America we grew up in for those of us that did grow up there. Or maybe it is and we’re just now seeing how they operate with those that don’t live there. At any rate the feeling of betrayal and back stabbing runs deep. Like many of you I have spent decades here feeling I had to defend the U.S. at times and stand up for Americans because I felt many times they were all negatively portrayed and not all Americans are bad people. I had to deal with this daily since my mother in law was staunchly anti American. Coming to a new country and having to deal with her hurtful remarks was hard but, I DID win her over. Her and most people who got to know me well. I feel the U.S. is losing something they cannot get back. They can never make us back into good will ambassadors ever again. There was little justification for us to do that in many cases to begin with and now there will be none.
At any rate my main worry is keeping MY health up because my son needs me to be healthy. I can’t help him when he needs it if I go down too far. I’m just going to renounce, file what I can by sending it straight in and not going into any “program” as I do NOT trust ANY of their “programs” Why they would put families abroad who would not owe them a dime in taxes through this is beyond shocking to me. As Obama said they are going to rebuild their infrastructure by “repatriating taxes” NO it’s not “taxes” It is fines and fees and penalties on zero taxes owed in most cases. Who ever thought up such a plan and feels it is right is an immoral, vicious jerk.
I now believe there is no hope for them to resolve any of this with residency based taxation as the evidence and Obama’s comments show this was planned and is being done on purpose so why on earth would the let any minnows go and not penalize them?
U.S. Persons Abroad - Members of a Unique Tax, Form and Penalty Club 
Pingback: Cook v. Tait 14: It’s NOT “citizenship-based taxation”, It’s “extraterritorial taxation” | U.S. Persons Abroad – Members of a Unique Tax, Form and Penalty Club
Pingback: Cook v. Tait 15: Why did the Soviet Union, Bulgaria, Vietnam and Myanmar adopt CBT? To maintain control? | U.S. Persons Abroad – Members of a Unique Tax, Form and Penalty Club