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In additional to background on the problems delineated by its title it collects links to primary and secondary law and commentary and to some degree to comparative law and conflict of laws sources. practice: "[A]n innocent mistake would not give rise to a power to order deprivation under this provision." Canada: Afzal v. This is an international law principle: that consent of the individual (or guardian) is required at a time other than birth, adoption, state succession or (now rarely) marriage. 873 (2017); Scotusblog (with downloadable case documents). Northern Ireland raises particular questions in that the U. Law librarians, lawyers, students and academics will know what authority to give each of these. ___ (2017) (numerous commentaries have been published online and can be found with a search engine query, and the State Department analyzed the case prior to the publication of Justice Ginsburg's opinion in its Digest of United States Practice in International Law (2016)) Justice Ruth Bader Ginsburg determined that such citizenship treatment of nonmarital children was discriminatory and (at the Government's invitation) somewhat arbitrarily substituted the 5-year (of which 2 years after the age of 14) rule prospectively. law does not encompass the concept of "possession d'état" which could resolve such problems in France and some other countries. Canada, 2014 FC 1028 (setting aside certificate of nationality granted in error). On the matter of automatic naturalization through marriage and its exorbitant attribution generally, see Alfred M. 2461 (2016), Note: Benjamin Wallace Mendelson, "Courts Have Gone off the Map: The Geographic Scope of the Citizenship Clause", 95 Tex. The Philippines inherited American citizenship-based taxation in 1913 but abolished it in 1998 (Republic Act 8424). K.'s Ireland Act 1949 and similar Irish legislation provide for a Common Travel Area and that the citizens of the other country are not aliens. From the standpoint of this essay an interesting question is whether the Court of Justice of the European Union would allow a Member State to implement a reciprocal collection provision of a tax treaty with the United States as against a migrant worker exercising his or her EEA rights: CJEU case law on direct taxation. It is intended to set out the basic comparative-law and conflict of laws issues, and the U. notion of worldwide primacy of its claims to allegiance and its claims to impose tax on those who fall within the scope of its definition of "U. While the obligation of American citizens and legal residents, wherever situated, to pay tax and to declare foreign financial assets have existed (since 1913 in the first case, and since 1971 in the second), it is only in recent years that aggressive action has been taken by the Congress and by U. Government agencies to ferret out, and to punish, noncompliant taxpayers. The linked cases, articles and reports highlight the issue and the statistics of citizenship renunciation suggest one result. Army deserter, recorded birth in Mexico using fictitious name); Corona-Palomera v. 24, 2018, "One ruled a US citizen, the other not: gay couple's twins face unusual battle". Congress has as a matter of practice overridden tax treaty provisions and doubtless will continue to do so. Thus: Phil Hodgen, "The Dual Citizen Exception to Covered Expatriate Status". Even among "accidental Americans there is a division: among those who can plausibly deny U. status because, born abroad, their existence has never been recorded with any U. consular office or tax agency (and perhaps whose American parent(s) qualifying residence or presence is subject to doubt) and those born on American or U. territory soil, flagged for attention if that fact is known.[6] Note that this bibliographic essay is not, itself, intended as legal advice. INS, 661 F.2d 814, 818 (9th Cir.1981); Matter of Leyva, 16 I. The involuntary attribution of nationality later than at birth and other than as a matter of law when previously unknown facts (such as place of birth, parentage or parental residence prior to birth) come to light requires consent. nationality is only one of the criteria by which an individual may become subject to U. Deemed residence ("Green card" status), physical presence and certain cases of former nationality at least since 2008 give rise to indefinite tax obligations in the absence of particular administrative demarches having been effected: and this is true whether the individual has any right to enter or work in the United States, and can be true even if he or she has been deported. Two examples: the Alternative Minimum Tax and the Net Investment Income ("Obamacare") 3.8% surtax on unearned income of individuals with adjusted gross income exceeding 0,000 (0,000 in the case of married couples filing jointly). This exception still leaves certain questions open, particularly for persons exercising the right of establishment in another country within the EU/EEA/Switzerland and more interestingly for Irish and British citizens who reside in the other country. I am grateful to those libraries and their librarians for their assistance. In 2004 its estimate was 3.2 million, in 2008 4 million , in 2012 6.3 million and in 2013 6.8 million. citizens will, themselves, only be citizens if the parent(s) have had qualifying residence or presence in the U. The definition of marriage itself varies by jurisdiction, most interestingly in countries following legal pluralism where personal status may depend on one's religion or tribal culture: the Philippines, Israel, India, Lebanon, and most predominantly Muslim countries, much of Africa and among North American native tribes. 22, 2013 (with court documents from PACER and Scribd). See the Meyer Kahane cases, notably United States v. It has historically been impossible for the IRS to enforce this presumptive declaration of status against individuals who, having expatriated or had their U. nationality annulled, built their family and economic lives, and given birth to those ostensibly non-American children, elsewhere in the world, perhaps accumulating assets that would from 1986 subject them to exorbitant PFIC (foreign collective investment, as in mutual funds and pensions) taxation (see below). Pitkanen, eds, Multiple Citizenship as a Challenge to European Nation-states (2007) Google Books — Chapt. Two Web forums discuss issues of conflict of laws, inequitable taxation, loss of tax-sparing provisions of the laws of one or the other country, and anomalous situations involving minors and mentally disabled persons unable to renounce U. citizenship and so unable to benefit fully from disability benefits and tax-sparing savings and pension provisions of Canadian law: On Australian pensions: Mondaq, Aug. For the United States, however, place of birth, in the absence of foreign diplomatic status, creates a jus soli nationality claim that is difficult to deny absent clear proof of an expatriating act that precedes controlling Supreme Court cases, or at the latest the 2008 tax statute. Even diplomatic status is not always properly addressed. As these numbers are generated to justify consular assets and budget they may be self-serving; no basis for their calculation is offered. nationality law has changed substantially in the 20th and 21st centuries, both by legislation and, especially by U. Supreme Court decisions implementing evolving concepts of civil rights, gender and nonmarital equality and other unconstitutional discrimination. In Canada, the Heritage Committee of Parliament addressed the issue. Expatriation is a right, but the exercise of that right is conditional and sometimes impossible for economic or mental capacity reasons. "Deportation Nightmare: Eduardo Caraballo, US Citizen Born In Puerto Rico, Detained As Illegal Immigrant", Huffington Post, May 25, 2010. There is a parallel here in the FATCA enterprise and its application to a universe of refuseniks and of expatriates who thought they never had, or had fully disposed of, American citizenship rights and obligations. 1, "Theorizing Multiple Citizenship" Many of the dual nationals and former U. 12, 2016: "Australia: The 'Super' Reason Australians Are Renouncing Their US Citizenship"; Marsha-laine Dungo, "U. taxation of Australian Superannuation funds: when the Super is NOT so super after all", Moodys Gartner, July 27, 2016; Compare International Tax Blog. 14, 2017, "Withdrawal of Prior Blog Post Regarding Australian Superannuation Funds" (persisting uncertainty). Or outright renunciation or relinquishment (if that is different), acknowledged by the U. There's a certain amount of unjustified hysteria in the literature: citizenship administratively assumed based on a birth certificate and wrongly issued Social Security account has no legal validity and would be revoked if brought to the attention of the State Department and the Social Security Administration. S.-born children are citizens (see next paragraph); and there are consulate officers and diplomatic staff on the White List as to whom the jus soli exception does not apply. Becker, "The State Department White List and Diplomatic Immunity", 47 Am.

Future hostility to repeated treaty overrides and perceived intrusion into sovereignty and vital national interests could yield blocking statutes and commercial espionage provisions as seen in trade matters in the 1980s: United Kingdom's Protection of Trading Interests Act, 1980 French Law No. 273 of the Swiss Penal Code, the Mexican law "to protect trade and investment from foreign norms that contravene international law", the Canadian Foreign Extraterritorial Measures Act. Whether this is a long-term viable solution or not remains to be seen. It is only since World War II that birth certification became standardized in the United States. While home births in border areas continue to create "birther"-type disputes, birth registration fraud is negligible for in-hospital births. What role there may be for comity and its cousin "forum non conveniens" is difficult to discern. Government that constitutional, international law and privacy issues are bypassed through the recruitment of foreign governments and foreign financial institutions to undertake implementation. Whether or not foreign financial assets give rise to income and whether or not U. tax is due, failure to file timely declarations to the IRS invokes draconian penalties of the order of ,000 per tax form per year, much more in cases of noncompliance deemed "willful" (defined and discussed in commentary and case law below). 17), Native Canadians with Jay Treaty rights, citizens of Micronesia, Marshall Islands and Palau (per the Compact of Free Association) and certain noncitizen military members who may have right of residence giving rise to tax liability without necessarily leaving a clear paper trail. If dual citizenship is indeed a human right, what does that say about the right to renounce? "Tax-Expatriation" is a Web site maintained by Patrick W. Expatriation, while a constitutional "right" from the time of Thomas Jefferson can come at great cost, quite beyond the nonrefundable ,350 consular fee currently charged. Foreign Service Officer who served in Seoul, Abidjan, London, Tehran, Algiers and Geneva. The failed Bill is mentioned here to show how the Congress has targeted the entirety of the U. expatriate population, and domestic owners of foreign financial assets with obscene fines for noncompliance: collateral damage of legislators' reaction to an unknown number of tax avoiders and tax evaders, the fines not necessarily reflecting whether there was any tax revenue loss, or the source of the overseas funds. 24, 2016, "Treasury proposal may fine tax evaders up to 200% of amount owed" but such U. fines would be on unpaid tax, not on penalties for nondeclaration of assets, and the tax is residence-based, not citizenship-based. K.) FATCA (the Foreign Account Tax Compliance Act), a component of the HIRE Act of 2010, mandated these IGAs and enhanced enforcement of reporting obligations. A-20968308 (1975)), of American Samoa and Swains island (pop. Nationality of an unrecognized State may be acknowledged for some purposes and not others. Uhl that are of limited usefulness in the more recent context of common multiple nationality, it makes sense that "international law should candidly analyze and regulate nationality in terms of its functions so as to better effectuate the diverse roles that nationality serves today": R. Sloane, "Breaking the Genuine Link: The Contemporary Legal Regulation of Nationality", 50 Harv. Foreign Financial Institutions (FFIs) have been cued to demand a Certificate of Loss of Nationality (CLN) as means of proving citizenship loss, but such documents (now form DS-4083, formerly form FS-348, per ) were not required for any obvious purpose prior to June 16, 2008 (26 U. Philip Hodgen, a Pasadena, CA lawyer, manages a similar law practice. The upshot of this nationality discussion is that before addressing issues of possible liability for taxes and penalties for prior years and for undeclared foreign assets, entities and trusts, an expatriate or presumed "accidental American" should determine his or her actual citizenship status. The issue of taxation as a controlling or motivating factor in nationality is addressed in Michael S. As the case documents show, Dewees brought himself to the attention of the IRS after a professional advisor brought an OVDP case on his behalf. The case, mentioned throughout this essay, holds many lessons and warnings for U. Persons abroad and shows how it is the middle and professional classes without the resources or awareness to hire expensive international tax and legal advisors who fare the worst under U. laws aimed at that group within the wealthy class who deliberately flout American reporting and tax obligations. 124; 2 Juris-Classeur Droit Fiscal International, Fasc. The current treaty with Senegal was signed in 1974 and with Mali in 1972. And see comment on UK case, HMD Response International v CRC (TC01322). (In much of the world, lack of "papers" obliterates one from society: "In Mexico, a Paper-Thin Barrier to School".) By reason of FATCA, FFIs may put clients to the proof of non-U. At what point does a demand to prove a negative become exorbitantly expensive and time consuming, and at what point does it intrude upon the paramount national interests of other sovereigns? Switzerland, ECHR 75/1996/694/886, 1997-V at 1509; A. The French treaty provides: "The assistance provided for in this Article shall not be accorded with respect to citizens, companies, or other entities of the Contracting State to which application is made…." The French Cour de Cassation invalidated such treaty provisions with Mali and Senegal on technical grounds: Ass. There can be anomalies in cross-border collection: Van de Mark v. Earlier Canadian tax advisors had failed to advise him as to his reporting obligations to U. As to treaty mutual tax collection provisions, the citizen exception is generalized. Issues of administrative and judicial integrity and compliance with human rights norms have arisen in connection with collection assistance requested by some countries. He now lives in Switzerland, where he writes on private international law issues, especially in the fields of nationality and tax. His previous work in this series is "Finding the Law: the Micro-States and Small Jurisdictions of Europe" and "A Research Guide to Cases and Materials on Terrorism". Beginning with June 3, 2004 it became possible to relinquish U. 2847) led to a web of Intergovernmental Agreements (IGAs) with virtually every foreign country providing for reporting to the IRS of accounts held by presumed "U. Persons" with foreign banks, brokerages and other financial institutions. (University College London) and of Licencié en droit européen et international, Maître & Docteur en droit (Louvain-la-Neuve) and is a member of the New York Bar. If one was not a citizen for 'nationality purposes' one was not a 'citizen for tax purposes'.