Maybe you can help me:
I became a Canadian in 1976 and had to renounce my US citizenship
in the ceremony. I would like to be able to go back to the
states. What do I do.
========================================================
david ingram replies:
The GOOD NEWS is that you did not really lose your US citizenship
even though you had every reason to think that you had. Taking
out Canadian citizenship was an "expatriating act" but unless you
received a notice of loss of citizenship from the Department of
State as in Situations 1 and 2 below, you are in situation 3.
The general rule is that you must file 6 years of back tax
returns and the current year. - That is what We do well. In fact
we can file all Canadian and American returns back to 1973 if
required.
You can find out more about the court cases and legislation that
makes this so by going to www.centa.com and reading the October
1993 Newsletter (The first newsletter posted to this site) in the
top left hand box - click on newsletters, 1993, October. The
following and some more can be found at:
http://www.centa.com/articles/Lost_US_Citizenship.htm
.
Financial SCAM
Alien Commuters
Cdn/US Social Security
Entering The US
Legal Expenses
Lost US Citizenship
SIN # for Children
US/Cdn Taxation Canadian Taxes, U.S. Taxes, Visas and
Immigration British Columbia Income Tax, Real Estate
INDIVIDUAL INCOME TAX
REVENUE RULE 92-109
1992-2 C.B. 3, 1992-52 I.R.B. 5.
Internal Revenue Service
Revenue Ruling
INDIVIDUAL LOST U.S. CITIZENSHIP; SUBSEQUENTLY CITIZENSHIP
RETROACTIVELY RESTORED
Published: December 8, 1992
26 CFR 1.1-1: Income tax on individuals.
(See Also Sections 871, 877, 2501, 2511, 6012, 6019, 6159,
6501, 7122, 7701, 7805; 1.871-1, 1.6012-1, 25.2501-1,
301.7805-1.)
Individual lost U.S. citizenship; subsequently citizenship
retroactively restored. Guidance is provided to several
categories of individuals who have failed to file past years'
federal income and gift tax returns, including individuals who
lost their U.S. citizenship and subsequently had (or have) that
citizenship retroactively restored.
ISSUES
Issue 1.
Whether, and to what extent, United States citizens who
lost their United States citizenship and subsequently had that
citizenship retroactively restored. are liable for federal income
and gift taxes as United States citizens.
Issue 2.
Whether, and to what extent, former United States citizens
who are eligible to have their United States citizenship
retroactively restored (but have not applied to do so) are liable
for federal income and gift taxes as United States citizens.
Issue 3.
Whether, and to what extent, United States citizens who
performed certain expatriating acts but did not lose their United
States citizenship are liable for federal income and gift taxes
as United States citizens.
Issue 4.
Whether, and to what extent, United States citizens
residing outside the United States who did not perform
expatriating acts and did not lose their United States
citizenship are liable for federal income and gift taxes as
United States citizens.
FACTS
Situation 1.
A is a United States citizen. On June 17, 1981, A performed
an expatriating act, as defined in the Immigration and
Nationality Act, section 349, 8 U.S.C. section 1481 (1976 & Supp.
III 1977-1980) (amended 1981, 1986, and 1988). A's expatriating
act did not have for one of its principal purposes the avoidance
of federal income, estate, or gift taxes.
A's expatriating act was reported to the United States
Department of State ("Department of State"). Following review,
the Department of State determined that A had lost her United
States citizenship, and, on November 16, 1981, approved a
certificate of loss of nationality for A. In 1989 A applied to
have her loss of United States citizenship administratively
reviewed. The Department of State reviewed A's loss of United
States citizenship, and determined that A did not intend to
relinquish her United States citizenship when she performed her
expatriating act. As a result in 1990 the Department of State
vacated A's certificate of loss of nationality, and retroactively
restored her United States citizenship.
A filed federal income and gift tax returns for 1981, the
year she lost her United States citizenship. A has not filed
federal income or gift tax returns for 1982 through 1989, the
period after the year she lost her United States citizenship and
before the year it was retroactively restored. A computes her
taxable income on the basis of a calendar year taxable year.
Situation 2.
B is a former United States citizen. On May 24, 1974, B
performed an expatriating act, as defined in the Immigration and
Nationality Act, section 349, 8 U.S.C. section 1481 (1976 & Supp.
II 1977-1979) (amended 1981, 1986, and 1988). B's expatriating
act did not have for one of its principal purposes the avoidance
of federal income, estate, or gift taxes.
B's expatriating act was reported to the Department of
State. Following review, the Department of State determined that
B had lost his United States citizenship, and, on October 19,
1979, approved a certificate of loss of nationality for B. B has
not applied to have his loss of United States citizenship
administratively reviewed.
B filed federal income and gift tax returns for 1979, the
year he lost his United States citizenship. B has not filed
federal income or gift tax returns since the 1979 returns. B
computes his taxable income on the basis of a calendar year
taxable year.
Situation 3.
C is a United States citizen. On August 25, 1980, C
performed an expatriating act, as defined in the Immigration and
Nationality Act, section 349, 8 U.S.C. section 1481 (1976 & Supp.
III 1977-1980) (amended 1981, 1986, and 1988). C's expatriating
act did not have for one of its principal purposes the avoidance
of federal income, estate, or gift taxes.
C's expatriating act was not reported to the Department of
State. As a result, the Department of State did not review C's
citizenship status, did not determine that she had lost her
United States citizenship, and did not approve a certificate of
loss of nationality for C. C did not intend to relinquish her
United States citizenship when she performed her expatriating
act. As a result, if the Department of State had determined that
C lost her United States citizenship, C would now be eligible to
have her citizenship retroactively restored.
C filed federal income and gift tax returns for 1982, the
year she performed the expatriating act. C has not filed federal
income or gift tax returns since the 1982 returns. C computes her
taxable income on the basis of a calendar year taxable year.
Situation 4.
D is a United States citizen who resides outside the United
States. D has never performed an expatriating act, as defined in
the Immigration and Nationality Act, section 349, 8 U.S.C.
section 1481 (1988), and therefore the Department of State has
never approved a certificate of loss of nationality for D. D has
not filed federal income or gift tax returns during the period of
his foreign residence.
LAW
Section 1 of the Internal Revenue Code imposes a tax on the
taxable income of every individual. Section 441(a) of the Code
provides that taxable income shall be computed on the basis of a
taxpayer's taxable year. In general, individuals compute their
taxable income on the basis of a calendar year taxable year.
Sections 1.1-1(b) and 1.871-1(a) of the Income Tax
Regulations provide that citizens of the United States, wherever
resident, and resident alien individuals are taxable on income
received from sources within and without the United States.
Section 2(d) of the Code provides that in the case of a
non-resident alien individual, the tax imposed by section 1 shall
apply only as provided by section 871 or 877.
Section 1.1-1(c) of the income tax regulations provides
that every person born or naturalized in the United States and
subject to its jurisdiction is a citizen. For rules governing the
loss of citizenship, section 1.1-1(c) refers to sections 349 to
357, inclusive, of the Immigration and Nationality Act, 8 U.S.C.
sections 1481-1489 (1976) (sections 1482 and 1484- 1487 repealed
1978) (section 1481 amended 1978, 1981, 1986, and 1988; section
1483 amended 1981, 1986, and 1988; section 1489 amended 1988).
Section 7701(b)(1)(A) of the Code provides that, for
purposes of the Code (other than the estate and gift taxes), an
alien individual shall be treated as a resident of the United
States with respect to any calendar year if (and only if) the
individual: (i) is a lawful permanent resident of the United
States at any time during that year; (ii) meets the substantial
presence test provided in section 7701(b)(3); or (iii) makes the
election provided in section 7701(b)(4). Section 7701(b)(1)(B)
provides that an individual is a non-resident alien if that
individual is neither a citizen of the United States nor a
resident of the United States within the meaning of section
7701(b)(1)(A).
Section 871 of the Code imposes a tax on certain income
received by a non-resident alien individual. Section 877 imposes
an alternative tax on certain income received by a non-resident
alien individual who after-March 8, 1965, and within the 10-year
period immediately preceding the close of the taxable year lost
United States citizenship, unless the loss of citizenship did not
have for one of its principal purposes the avoidance of federal
income, estate, or gift taxes, or resulted from the application
of section 301(b), 350, or 355 of the Immigration and Nationality
Act, as amended, 8 U.S.C. section 1401(b), 1482, or 1487 (1976)
(repealed 1978). Section 877 is effective for taxable years
beginning after December 31, 1966.
Section 2501 of the Code imposes a tax for each calendar
year on the transfer of property by gift during the calendar year
by any individual. For gifts made after December 31, 1970, and
before January 1, 1982, the tax imposed by section 2501 is
applicable for each calendar quarter. Section 2511 provides that
in the case of a non-resident not a citizen of the United States
the gift tax imposed by section 2501 shall apply to a transfer
only if the property is situated within the United States.
Section 25.2501-1(b) of the Gift Tax Regulations provides
that, for purposes of the gift tax, an individual is a United
States resident if the individual's domicile is in the United
States at the time of the gift. All other individuals are
non-residents of the United States for purposes of the gift tax.
Section 2501(a)(2) of the Code provides that, except as
provided in section 2501(a)(3), the gift tax imposed by section
2501 shall not apply to the transfer of intangible property by a
non-resident not a citizen of the United States. Section
2501(a)(3) provides that the gift tax imposed by section 2501
shall apply to the transfer of intangible property by a
non-resident not a citizen of the United States in the case of a
donor who after March 8, 1965, and within the 10-year period
ending with the date of transfer lost United States citizenship,
unless the loss of citizenship did not have for one of its
principal purposes the avoidance of federal income, estate or
gift taxes, or resulted from the application of section 301(b),
350, or 355 of the Immigration and Nationality Act, as amended, 8
U.S.C. section 1401(b), 1482, or 1487 (1976) (repealed 1978).
Sections 2501(a)(2) and 2501(a)(3) are effective for transfers
occurring on or after January 1, 1967.
Section 6012(a)(1) of the Code provides, with certain
exceptions, that every individual who has gross income for the
taxable year which equals or exceeds the exemption amount (as
defined in section 151(d)) shall file a federal income tax
return. Section 1.6012-1(b)(2)(ii)(b) and (c) of the income tax
regulations provides that an individual who abandons United
States citizenship or residence during the taxable year, and is
not a citizen or resident of the United States on the last day of
the taxable year, must file a Form 1040NR federal income tax
return for that year (if the individual is otherwise required to
make a return for the taxable year). This return must include a
separate schedule that shows the income tax computation for that
part of the taxable year when the individual was a citizen or
resident of the United States. Section 6019 provides, with
certain exceptions, that any individual who makes a transfer by
gift in any calendar year shall file a federal gift tax return.
For gifts made after December 31, 1970, and before January 1,
1982, the filing requirement imposed by section 6019 is
applicable for each calendar quarter.
Section 6501(c)(3) of the Code provides that in the case of
a failure to file a federal tax return, the tax may be assessed,
or a proceeding in court for the collection of that tax may be
begun without assessment, at any time. Internal Revenue Service
Policy Statement P-5-133, IRM 1218 PS P-5-133 (Nov. 24, 1980),
states that taxpayers failing to file tax returns due will be
requested to prepare and file all due returns except in instances
where there is an indication that the taxpayer's failure to file
the required return or returns was wilful or if there is any
other indication of fraud. If indications of wilfulness or fraud
exist, special procedures for handling those returns are
followed. If indications of wilfulness or fraud do not exist, the
extent to which compliance for prior years will be enforced is
determined by reference to several factors, including any special
circumstances existing in the case of a particular taxpayer or
class of taxpayers. Normally, application of these factors will
result in enforcement of delinquency procedures for not more than
six years.
Section 6159(a) of the Code authorizes the Internal Revenue
Service to enter into written agreements with a taxpayer under
which the taxpayer may satisfy a tax liability in instalment
payments. An instalment agreement is considered when the Service
determines that instalment payments will facilitate collection of
a tax liability.
Section 7122(a) of the Code authorizes the Internal Revenue
Service to compromise any civil case arising under the internal
revenue laws before the case is referred to the Department of
Justice for prosecution or defense. Internal Revenue Service
Policy Statement P-5-100, IRM 1218 PS P-5-100 (Jan. 30, 1992),
states that the Service will accept an offer in compromise when
it is unlikely that the tax liability can be collected in full
and the amount offered reasonably reflects collection potential.
Internal Revenue Service District Directors administer the
internal revenue laws and related statutes as they relate to
persons residing within their districts. The Assistant
Commissioner (International) administers the internal revenue
laws and related statutes as they relate to United States
citizens residing abroad and non-resident aliens deriving income
from sources within the United States.
Section 349(a) of the Immigration and Nationality Act, 8
U.S.C. section 1481(a) (1988), provides that United States
citizens shall lose their citizenship if they voluntarily perform
certain acts with the intention of relinquishing United States
citizenship. Section 358 of the Immigration and Nationality Act,
8 U.S.C. section 1501 (1988), and section 50.41 of Title 22 of
the Code of Federal Regulations, 22 C.F.R. s 50.41 (1991),
provide that a diplomatic or consular officer of the United
States shall prepare a certificate of loss of nationality
whenever that officer has reason to believe that a United States
citizen has lost United States citizenship. If the Department of
State approves a certificate of loss of nationality, thereby
determining that the individual lost United States citizenship, a
copy of the certificate is issued to the affected individual. If
a certificate of loss of nationality is not approved by the
Department of State for an individual under section 358 of the
Immigration and Nationality Act, that individual is not
considered to have lost United States citizenship. When a
certificate of loss of nationality is approved, the loss of
United States citizenship is considered retroactively effective
to the date of the expatriating act.
Prior to November 14, 1986, the Immigration and Nationality
Act did not expressly state the requirement that an expatriating
act be performed with the intention of relinquishing United
States citizenship. See Immigration and Nationality Act, section
349, 8 U.S.C. section 1481 (1982) (amended 1986 and 1988). On
November 14, 1986, the Immigration and Nationality Act was
amended to expressly state this requirement. immigration and
Nationality Act Amendments of 1986, pub. L. No. 99-653, section
18(a), 100 Stat. 3655, 3658 (1986). This amendment was made
applicable to actions taken before, on, or after November 14,
1986. Immigration and Nationality Act Amendments of 1986, Pub. L.
No. 99- 653, section 23(g), as added by the Immigration Technical
Corrections Act of 1988,, Pub. L. No. 100-525, section 8(r), 102
Stat. 2609, 2619 (1988).
In accordance with this amendment, individuals who were
determined by the Department of State to have previously lost
United States citizenship may apply to the Department of State to
have their citizenship status administratively reviewed. Pursuant
to this review, the Department of State may determine that
individuals did not intend to relinquish their United States
citizenship when they performed expatriating acts. In these
cases, the Department of State will vacate the individuals'
certificates of loss of nationality, and retroactively restore
their United States citizenship. Individuals who have their
United States citizenship retroactively restored are considered
to have been United States citizens since birth or
naturalization, and are taxable as United States citizens since
birth or naturalization.
ANALYSIS AND HOLDINGS
The following analysis and holdings relate to the federal
tax treatment of the individuals described in this revenue
ruling. This revenue ruling does not affect an individual's right
to petition the Department of State for administrative review of
that individual's citizenship status at any time.
Situation 1.
Individuals who lost their United States citizenship and
had (or have) it retroactively restored before January 1, 1993,
will not be held liable for federal income taxes as United States
citizens between the date they lost their United States
citizenship and the beginning of the taxable year when their
citizenship was (or is) restored, and will not be held liable for
federal gift taxes between the date they lost their United States
citizenship and January 1 of the calendar year when their
citizenship was (or is) restored.
As a result, A is not liable for federal income or gift
taxes as a United States citizen between June 17, 1981, the date
she lost her United States citizenship, and December 31, 1989,
the end of the year preceding the year in which her United States
citizenship was retroactively restored. A is liable for federal
income and gift taxes as a United States citizen for taxable
years beginning on or after January 1, 1990, the year in which
her United States citizenship was retroactively restored.
Situation 2.
B is not taxable as a United States citizen, and has not
been taxable as a United States citizen since May 24, 1979, the
date he lost his United States citizenship. B is considered an
alien individual under the Code, either a non-resident alien
under section 7701(b)(1)(B) or a resident alien under section
7701(b)(1)(A). If B qualifies as a non-resident alien, he is
taxable under section 871. Alternatively, if B is considered a
resident alien, he is taxable under section 1.
For purposes of the gift tax, B's United States residency
status is determined under section 25.2501-1(b) of the gift tax
regulations. If B is considered a non-resident under section
25.2501-1(b), he is taxable under section 2511. If B is
considered a resident under section 25.2501-1(b), he is taxable
under section 2501.
B may apply to the Department of State to have his
certificate of loss of nationality administratively reviewed. If
B applied for this review, and if his certificate of loss of
nationality is vacated, B's United States citizenship will be
retroactively restored.
Individuals who lost their United States citizenship and
have it retroactively restored after December 31, 1992, will not
be held liable for federal income taxes as United States citizens
between the date they lost their United States citizenship and
the beginning of their first taxable year beginning after
December 31, 1992, and will not be held liable for federal gift
taxes between the date they lost their United States citizenship
and January 1, 1993.
As a result, if B has his United States citizenship
retroactively restored after December 31, 1992, B will not be
liable for federal income or gift taxes as a United States
citizen between May 24, 1979, and December 31, 1992. B will be
liable for federal income and gift taxes as a United States
citizen for taxable years beginning on or after January 1, 1993.
Situation 3.
C is, and always has been since birth or naturalization, a
United States citizen taxable under sections 1 and 2501 of the
Code. The Department of State never determined that C lost her
United States citizenship, and never approved a certificate of
loss of nationality for C. As a result, C never lost her United
States citizenship. Therefore, C is not eligible for the relief
granted in situations 1 and 2 of this revenue ruling.
Pursuant to policy statement P-5-133, the Internal Revenue
Service has designated for special Consideration individuals who
did not file federal income and gift tax returns as United States
citizens because they had a reasonable, good faith belief that
they had lost their United States citizenship. These individuals
performed expatriating acts (as defined in the Immigration and
Nationality Act as in effect at the time the acts were committed)
but were not determined by the Department of State to have lost
United States citizenship, and certificates of loss of
nationality were not approved on their behalf. As a result, these
individuals did not lose their United States citizenship.
Furthermore, these individuals did not intend to relinquish their
United States citizenship when they performed these acts. Under
current law the acts these individuals performed are no longer
considered expatriating, absent proof of intent to relinquish
United States citizenship. As a result, if the Department of
State had determined that these individuals lost their United
States citizenship, these individuals would now be eligible to
have their citizenship retroactively restored.
Pursuant to policy statement P-5-133, the Assistant
Commissioner (International) and District Directors may grant
relief similar to the relief granted in situations 1 and 2 of
this revenue ruling. Among the circumstances that will be
considered by the Assistant Commissioner (International) and
District Directors when evaluating requests for relief from the
individuals described in this situation 3 is whether they acted
in a manner consistent with a good faith belief that they had
lost United States citizenship by, among other things, not
affirmatively exercising any rights of United States citizenship
in the period when they did not file federal tax returns as
United States citizens.
As a result, pursuant to policy statement P-5-133, C may
apply to the Assistant Commissioner (International) or to the
appropriate District Director for relief based on the particular
circumstances of her case, and may be eligible for special
consideration. Following review, the Assistant Commissioner
(International) or the appropriate District Director may grant C
relief similar to the relief granted in situations 1 and 2 of
this revenue ruling. Decisions made by the Assistant Commissioner
(International) and District Directors are not determinations of
citizenship, and any relief granted by the Assistant Commissioner
(International) or by a District Director only relates to federal
taxes.
Situation 4.
D is, and always has been since birth or naturalization, a
United States citizen, taxable under sections 1 and 2501 of the
Code. D is not eligible for any relief from federal income or
gift taxes based on this revenue ruling.
If extenuating circumstances prevented D from filing
federal income and gift tax returns during the period of his
foreign residence, D may apply to the Assistant Commissioner
(International) and attempt to show that the extenuating
circumstances justify relief under policy statement P-5-133.
However, D is not eligible for any special consideration based on
this revenue ruling. D may also attempt to show that he is
eligible to settle his tax liabilities pursuant to an instalment
agreement or an offer in compromise. See sections 6159(a) and
7122(a) of the Code, and policy statement P-5-100. See also
Internal Revenue Service News Releases IR-92-114 (Dec. 7, 1992)
and IR-92-94 (Sep. 30, 1992) (concerning the Internal Revenue
Service initiative to bring nonfiling taxpayers back into the
federal tax system).
PROSPECTIVE APPLICATION
The relief granted by this revenue ruling to individuals
who lost their United States citizenship and subsequently had (or
have) it retroactively restored is based on the authority
contained in section 7805(b) of the Code.
DRAFTING INFORMATION
The principal author of this revenue ruling is Irwin
Halpern of the Office of Associate Chief Counsel (International).
For further information regarding this revenue ruling, contact
Mr. Halpern on (202) 622-3850 (not a toll-free call).
-----------------------------------------------------------------
---------
Rev. Rul. 92-109, 1992-2 C.B. 3, 1992-52 I.R.B. 5.
==========================================
Jerome Schneider copied the above document from my
materials and handed it out as part of his scam offshore trusts
for which he was incarcerated two years ago. We knew he got it
from me because the copy he used had one of my legendary "copy
catchers in it". I will give just about anyone permission to use
something from my website but do like to be asked first and do
expect credit for its source..
==============================================
David Ingram's US/Canada Services
US / Canada / Mexico tax, Immigration and working Visa
Specialists
US / Canada Real Estate Specialists
Home office at:
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Cell (604) 657-8451 -
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Calls welcomed from 10 AM to 10 PM 7 days a week (please do
not fax or phone outside of those hours as this is a home office)
email to taxman at centa.com
www.centa.com www.david-ingram.com
Disclaimer: This question has been answered without
detailed information or consultation and is to be regarded only
as general comment. Nothing in this message is or should be
construed as advice in any particular circumstances. No contract
exists between the reader and the author and any and all
non-contractual duties are expressly denied. All readers should
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message, this disclaimer must be included."
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Cape Spears,
Truro, Charlottetown, Summerside, Niagara Falls, Albany
Zimbabwe
David Ingram specializes in giving expert income tax and
immigration help to American and Canadian citizens living out of
their home countries from Zimbabwe to Saudi Arabia to Mexico to
China or Chile - Cross border, Non-resident - dual citizen - out
of country investments are all handled with competence and
authority.
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CEN-TA Cross Border Services - Tax, Visas, Immigration
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