Cook v. Tait 13: The US can no longer be permitted to levy taxes on border babies living in Canada

Introduction – The Cook v. Tait Series of Posts

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 YET 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

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Cook v Tait 13: Citizenship-based taxation must come to an end

It's painfully evident that #Americansabroad are not citizens but are property. This can't continue http://t.co/pYslEUyCNU #12yearsaslave

— U.S. Citizen Abroad (@USCitizenAbroad) March 26, 2014

The above tweet references a calm, but desperate plea posted at the Isaac Brock Society. The plea includes:

 

I was born in the US to Canadian parents who were there temporarily for work – we moved back to Canada in 1967, when I was 1 year old and my sister was 3 years old. As my parents had registered our births abroad to the Canadian consulate, we became Canadian citizens at birth. We have never claimed our US citizenship, have absolutely no link to the US and were never told that we had tax obligations to the US simply by virtue of being born there – had I known, I would have renounced when I was 18 and had nothing to my name !

Under FATCA, the IRS wants all our banking information to find out the value of our assets; this includes any joint accounts I share with my solely Canadian citizen husband. As the IRS considers us “tax cheats”, if we try to renounce/relinquish our US citizenship now, we expose ourselves to punitive penalties for “willful non-compliance”, not to mention accounting and cross-border specialists fees which can also be substantial.

Really, the time has come to put an end to this absurdity.

There are a number of aspects to this issue including:

1. The right to levy taxes: The U.S. is claiming the right to levy taxes on people solely because they were born in the U.S. Yet nobody has a choice where they are born. As a matter of fact, those who were born in the U.S. and continue to live in the U.S. are part of the U.S. community and are the recipients of the benefits/burdens of living in the U.S. Those who never lived in the U.S. and don’t live in the U.S. are entitled to none of these things. Furthermore, as the comment states, this person NEVER thought of herself as American, NEVER held herself out as an American, and NEVER has attempted to claim/use any of the supposed “benefits of U.S. citizenship”. Yet, the U.S. claims both the legal and moral right to levy taxes on this person who does NOT reside in the U.S. and does not have income associated with the U.S.

2. Citizenship as a bundle of rights and obligations: There is no one definition of citizenship. Much thought has gone into the questions of: how does one qualify for citizenship or how does one renounce citizenship. But, very little thought has focused on “what is the meaning  of citizenship”. A google search reveals many different answers to the question of what is citizenship.

There is no one definition of the meaning of citizenship. (See for example Mr. Mopsick’s difficulties with defining the meaning of American citizenship). But, all definitions of citizenship include an acknowledgement that citizenship includes both rights and obligations. At certain times citizenship has been defined more in terms of obligations (think conscription in World War 2) and at certain times more in terms of rights. At the present time, the U.S. is attempting to define citizenship more in terms of “obligations” (think FATCA). That said,  if “citizenship” doesn’t offer some rights, it cannot be citizenship.

3. There are both legal and moral aspects to citizenship: It’s obvious that there must be legal rules (laws) that define the circumstances under which one acquires or loses citizenship. But between acquiring citizenship and losing citizenship. one must be a citizen. “Being a citizen” triggers certain moral aspects of citizenship. These aspects are related to how one interacts with others who are members of that same “citizenship community”. Citizenship is more than legal status. As Barack Obama said in his 2013 State of the Union Address:

We are citizens.  It’s a word that doesn’t just describe our nationality or legal status.  It describes the way we’re made.  It describes what we believe.  It captures the enduring idea that this country only works when we accept certain obligations to one another and to future generations; that our rights are wrapped up in the rights of others; and that well into our third century as a nation, it remains the task of us all, as citizens of these United States, to be the authors of the next great chapter in our American story.

This commenter has no engagement in and is no way part of the “community of Americans”. Her “rights” are no way tied into the “rights of Homelanders”. She has no connection to the United States. She is at most, by virtue of an accident of birth, a citizen in a legal citizen. She is NOT a citizen in any moral sense.

4. Citizenship includes “membership” and citizenship should include the right to NOT be a member: There is and should be a difference between citizenship and slavery. The right to membership in a community should include the right to NOT be a member of a community. For adults, the right to expatriate is part and parcel  of the right to citizenship. Those who are born in the U.S. and leave the U.S. before becoming adults should be required to “opt in” to U.S. citizenship. An “opt in” is necessary so that U.S. citizenship  is substantive and meaningful.

In the past, U.S. citizenship laws (See for example former INA S. 350) have required U.S. citizens born abroad, or dual citizens from birth, to affirm their ties to the U.S. in order to continue to be a U.S. citizen. In other words, where there is no connection to the “American community”, citizenship should not be defined solely in terms of the “circumstances of birth”.

Barack Obama himself believes, or says he believes that:

The outcome of your life should not be the result of the circumstances of your birth.

5. Citizenship should ALWAYS include the right to vote: Citizenship includes membership in a political community. Membership in a political community should ALWAYS include the right to vote. (The only possible prerequisite being age.) Amazingly, U.S. citizenship does NOT include the right to vote. Voting rights are determined under state laws.  Because many Americans abroad (like the commenter) have NO connection to any state they are NOT entitled to vote. A superb description of this reality comes from Fair Vote and includes:

American adults living in states typically can vote, but they do not have a federally protected right to vote enshrined in the Constitution. States protect the right to vote to different degrees based on the state’s constitutional language and statutes. The federal government traditionally only steps in to prevent certain broad abuses, such as denying the right to vote based on race (15th Amendment), sex (19th Amendment), or age (26th Amendment).

In most states, counties design their own ballots, pursue their own voter education, have their own policies for handling overseas ballots, hire and train their own poll workers, select polling place locations and maintain their own voter registration lists. States have wide leeway in determining policies on absentee voting, polling hours and funding of elections.  As a result, voters and potential voters have different experiences going through the registration and voting process depending on where they live. These differences can be even more pronounced in some local elections because of varying degrees of federal and state support.

States also currently have the power to explicitly limit the franchise.  Current data shows states have chosen to deny nearly five million American citizens the right to vote because of felony convictions, including millions who have completely paid their debt to society. Some states even deny certain classes of overseas voters the right to vote.

It’s clear that this commenter has no right to vote in U.S. elections. She is denied one of the fundamental attributes of citizenship. Yet, the U.S. expects her to pay taxes.

Citizenship as slavery: All of the obligations, none of the rights and no citizenship in a moral sense

Clearly, this person is not a U.S. citizen in any moral or meaningful sense. Unless she moves to the U.S. she is not entitled to vote in the U.S. Unless she has U.S. source income she will never be entitled  to  Social Security of Medicare benefits in the U.S. (Yet, the U.S. expects her to pay for Obamacare pursuant to the new 3.8% Obamacare surtax).

To treat this person as a U.S. citizen for tax purposes, when she dose not live in the U.S. and has none o the moral attributes of citizenship is simply wrong.

One man’s citizenship is another man’s slavery:

1. The practice of imposing taxation based solely of the accident of being born in the U.S., when one has no benefits of citizenship, is approaching the immorality of slavery.

2. No country should aid and abet the USA in facilitating its immoral practices.

The United States of America – that so called “great citadel of freedom and justice” – is using the 14th amendment (a provision to end the effects of slavery) to force the payment of taxes without the full benefits of citizenship.

The solution:

Canadian citizens, resident in Canada, should at their request, be treated ONLY as Canadian citizens. This can and should be allowed by making a tax treaty election (similar to the election available to Green Card Holders).

The time has come for the rest of the world to forbid the United States from levying taxes on people who do NOT live in the United States on income not earned in the United States.

A final thought for another post – and this is important:

It’s obvious that this commenter does not believe she is a U.S. citizen. It’s obvious that the U.S. has no moral right to levy taxes on her. People wishing to sever their citizenship ties with the U.S. are required to complete Form 4079 which is a questionnaire to determine U.S. citizenship. It asks about the payment of U.S. taxes.

The question is:

If this commenter files a U.S. tax return or applies for a U.S. Social Security number, is she agreeing that she is a U.S. citizen? Through FATCA, the U.S. is pressuring people to take affirmative steps that are indicative of a belief that one is a U.S. citizen.

Can the U.S., use the 14th amendment to force the unwanted obligations of citizenship, on “border babies”?

It’s just not right!