Month: August 2014
Wowzers! Consular Fees for Processing U.S. Citizenship Renunciations Increased More than 500% (US$2,350 Fee)
Wowzers! Consular Fees for Processing U.S. Citizenship Renunciations Increased More than 500%
The recent U.S. Department of State announcement of new fees for renouncing U.S. citizenship have been increased significantly. The costs of the “Hotel California” have gone up to US$ 2,350 from US$450.
This information comes on the heals of distressing news that in some Consulate offices throughout the world, U.S. citizens are not able to get meetings for renunciations until the year 2015.
|Type of Service||Previous Fee||New Fee|
|Renunciation of Citizenship||$450||$2,350|
Fees for Consular Services to Change on September 12, 2014
Mexico City, August 28, 2014 – Effective September 12, 2014, the Department of State will adjust processing fees for some services. The fees for most categories of immigrant visas will change, while fees for nonimmigrant visas largely remain the same. The fee for processing an application for Renunciation of U.S. Citizenship is increasing to reflect the true cost of providing this service.
The Department seeks to recover, as far as possible, the cost of providing consular services through the collection of consular fees. The Department regularly reviews these costs and adjusts fees as necessary to reflect the cost of service.
Although most categories of nonimmigrant visa processing fees will remain the same, the fee for E visas (treaty-traders and treaty-investors) will decrease and the fee for K visas (for fiancé(e)s of U.S. citizens) will increase. The fee charged for Border Crossing Cards for Mexican citizen minor applicants under the age of 15 will increase by $1.
For immigrant visa processing, the fee for family-sponsored immigrant visas will increase, as will the fee for domestic review of an Affidavit of Support. All other immigrant and special visa processing fees that are changing will decrease.
Documenting a U.S. citizen’s renunciation of citizenship is extremely costly, requiring U.S. consular officers overseas to spend substantial amounts of time to accept, process, and adjudicate cases. The fee for processing renunciation of citizenship, which had previously been subsidized, is now reflective of the true cost.
Nonimmigrant Visa Processing Fees
|Type of Visa||Previous Fee||New Fee|
|Treaty Investor and Trader visas (E)||$270||$205|
|Fiancé(e) visas (K)||$240||$265|
|Border Crossing Card (under age 15)||$15||$16|
Immigrant Visa Processing Fees
|Type of Visa||Previous Fee||New Fee|
|Immediate Relative and Family Preference Applications||$230||$325|
|Other Immigrant Visa Applications||$220||$205|
|Determining Returning Resident Status||$275||$180|
|Waiver of Two-Year Residency Requirement||$215||$120|
|Affidavit of Support Review (only when reviewed domestically)||$88||$120|
Citizens’ and Administrative Services
|Type of Service||Previous Fee||New Fee|
|Renunciation of Citizenship||$450||$2,350|
|Charge for Consular Time (for fee services performed outside of normal business hours or away from the office)||$231||$135|
The proposed fees were published in the Federal Register today, and will take effect in 15 days. To view the interim final rule, visit www.regulations.gov. Comments will be accepted until 60 days after publication. At that time, the Department will consider the public comments, and the published final rule will include the Department’s response to any comments received.
Fee information may also be found on the Bureau of Consular Affairs website, travel.state.gov, and on the websites of U.S. embassies and consulates.
Will the IRS treat a USC or LPR residing outside the U.S. who purposefully refuses to file U.S. income tax returns and information returns the same as “tax protesters”?
What is a “tax protester”? What is the significance for USCs and LPRs residing overseas?
What if the U.S. tax and its applicability to USCs and LPRs living overseas, specifically including the tax on expatriation seems unfair, unjust, overreaching, burdensome, etc.? Is that a legal basis for defying the law’s application and reach?
The author has consistency argued, that from a tax policy perspective, U.S. citizenship based taxation of worldwide income for those who live outside the U.S. needs to be repealed as it is unique in the world, dates to the 19th Century Civil War and is inappropriate for the global world we live in. See, “Tax Simplification: The Need for Consistent Tax Treatment of All Individuals (Citizens, Lawful Permanent Residents and Non-Citizens Regardless of Immigration Status) Residing Overseas, Including the Repeal of U.S. Citizenship Based Taxation,” by Patrick W. Martin and Professor Reuven Avi-Yonah, 2013.
“Tax protesters” and their frivolous arguments generally assert, somehow the U.S. federal tax laws are against the U.S. Constitution; i.e., unconstitutional. The U.S. Supreme Court has already ruled that U.S. citizenship based taxation is indeed Constitutional when it upheld as Constitutional the concept of citizenship based taxation in 1924 in Cook v. Tait. In that case, the U.S. citizen resided permanently and was domiciled in Mexico City with his Mexican citizen wife. See, Supreme Court’s Decision in Cook vs. Tait and Notification Requirement of Section 7701(a)(50)
These Constitutional arguments are not looked well upon by any branch of the U.S. federal government. The IRS and Tax Division of the Department of Justice regularly prosecute these cases. The Courts regularly uphold the government’s position; and the Congress has passed increasingly harsh penalties, including as late as in 2007 (See IRC section 6702 – Frivolous Tax Submissions).
The term “tax protester” became somewhat taboo after Congress passed a law designed at protecting taxpayer’s rights. The current, more politically correct terminology comes from the National Tax Defier Initiative, also known as the “TAXDEF Initiative” which was launched by the Tax Division of the DOJ.
In short, the Courts, specifically including the U.S. Supreme Court have consistently rejected a range of arguments that the tax law is unconstitutional. Those individuals who advance such arguments, which have consistently been upheld as frivolous legal arguments, are commonly referred to as “tax defiers” or “tax protesters.”
A classic quote from the 7th Circuit is apropos – Coleman v. Commissioner, 791 F.2d 68, 69 (7th Cir. 1986) –
- Some people believe with great fervor preposterous things that just happen to coincide with their self-interest. “Tax protesters” have convinced themselves that wages are not income, that only gold is money, that the Sixteenth Amendment is unconstitutional, and so on. These beliefs all lead—so tax protesters think—to the elimination of their obligation to pay taxes.
Hoards of taxpayers have been found liable for civil penalties, civil fraud penalties and criminal liability (in the most egregious of cases – with prison sentences) over the years as they have asserted a range of arguments found to be frivolous.
Will the IRS or the Tax Division of the DOJ take a similar position against UCS or LPRs who have resided overseas who argue the U.S. tax law should not apply to them? See an earlier post, Tracking U.S. Citizens and LPRs in and Out of the Country – Tracking Taxpayers (Entry/Exit System)
Who in the government will test the limits of enforcement overseas? Will the long-arm of the U.S. federal government, and its enforcement, grow even longer? Will information collected by the IRS via FATCA enable the government to compile and pursue such cases? See, U.S. Enforcement/Collection of Taxes Overseas against USCs and LPRs – Legal Limitations
Read Wikipedia for a colorful overview of – Tax protester history in the United States
Why a “long-term” LPR can NEVER avoid “Covered Expatriate” status under IRC Section 877A(g)(1)(B) if Asset or Tax Liability Test is Satisfied!
There have been multiple posts explaining the importance of the certification requirement of Section 877(a)(2)(C).
See for instance, Certification Requirement of Section 877(a)(2)(C) – (5 Years of Tax Compliance) and Important Timing Considerations per the Statute, also see Can the Certification Requirement of Section 877(a)(2)(C) be Satisfied “After the Fact”?
This specific act of “certifying” is a requirement under the law, that requires all individuals (whether U.S. citizens or LPRs) to satisfy the elements of the certification, in order to avoid “covered expatriate” status.
Also, there is an important exception to “covered expatriate” status set forth in IRC Section 877A(g)(1)(B). Only certain individuals may be able to satisfy this important requirement, which provides as follows:
The following article has little to do, directly, with the U.S. tax and legal consequences of renouncing U.S. citizenship. It is an opinion piece reflecting a Canadian perspective of renouncing Canadian citizenship.
Nothing against the United States, until now
Sen. Ted Cruz (R-Texas) will renounce his Canadian citizenship.
[U.S. News & World Report issued a story on 11 June 2014 of the renunciation of Senator Cruz’s Canadian citizenship]
That’s a perfectly logical, rational perspective.
It is one shared by many Canadians, only in reverse. They have lived their entire lives as Canadians only. They were born to Canadian parents temporarily working or studying in United States. Like Cruz, they returned to their country of citizenship as small children. Some were born in United States only because it was the closest hospital for their mother to give birth.
Like Cruz, they had no idea they had citizenship of another country. They never claimed U.S. citizenship. They never had a U.S. passport or Social Security number and never worked in United States. Until recently, they had “nothing against” United States.
Suddenly, the U.S. Congress, U.S. Treasury and Internal Revenue Service turned their lives topsy-turvy..
These “accidental Americans” only recently learned IRS expects them to file income tax returns each year. Most owe no U.S. tax because they pay taxes to Canada, where they have lived their entire lives. Yet accounting and legal costs are prohibitive due to the complexity of the U.S. tax code, especially for non-resident aliens.
In addition to annual IRS returns, these Canadians are expected file a Foreign Bank Account Report (FBAR), outlining all “foreign” bank and credit union accounts, insurance policies, mutual funds, retirement savings and other assets and investments they have in Canada. If they don’t, they could face draconian penalties of up to 50 percent for each account or $100,000, whichever is greater.
Fortunately, the Canadian government resists that absurdity. Canada’s Finance Minister Jim Flaherty has made it clear Canada Revenue Agency (CRA) does not and will not collect penalties for IRS for any Canadian citizen or resident. Nor will CRA collect any tax liability for IRS for a Canadian citizen, even if the person was also a U.S. citizen at the time of the tax liability.
As Flaherty has stated numerous times, “Canada is not a tax haven. People do not flock to Canada to avoid paying taxes.”
That’s not enough to keep IRS away from the business of Canada, Canadian banks or Canadian citizens and residents. Beginning in 2015, IRS expects Canadian banks to report on assets held by “US persons” living in Canada under the U.S. Foreign Account Tax Compliance Act (FATCA). If banks refuse, U.S. will impose huge financial penalties. If Canadian citizens and residents refuse to give consent for personal information to be released to IRS, FATCA demands Canadian banks declare these honest, law-abiding citizens “recalcitrant” and close their legal Canadian accounts.
Flattery calls this intrusion into Canada “unwarranted” and “extraterritorial.”
These accounts are not “foreign.” They are not “offshore.” They are held in Canada where citizens and residents live, work, earn an income, bank and pay taxes. Many are retirement savings of seniors.
FATCA clearly violates Canadian banking, privacy and human rights laws and Canada’s constitution and Charter of Rights and Freedoms, as well as laws of other countries. Congress, IRS and U.S. Treasury have shown disdain for other countries as they inflict their atrocious demands on the globe.
Who are “US persons” living in Canada?
*Canadian citizen, but “acccidental Americans” born in United States to Canadian parents.
*Canadian citizens who were told clearly and firmly by United States Consulates decades ago they were “permanently and irrevocably” relinquishing U.S. citizenship by becoming Canadian citizens.
*Dual Canadian-American citizens who took pride in U.S. heritage—before FATCA, FBAR and IRS entered their responsible Canadian lives;
*Canadian-born citizens with one parent born in U.S.;
*Canadians who returned home after working in U.S. on a green card;
*and Canadian “snowbirds” who support the U.S. economy by spending winters in southern states
If Canadians and others around the world want to renounce U.S. citizenship to protect their private financial information from U.S. snooping, IRS expects five years of income tax returns, destructive penalties and a possible exit tax.
Senator Cruz, Canada respects your decision to renounce your Canadian citizenship. When it is granted, I assure you Canada will not stalk you for information about your private finances and will not demand taxes or penalties from you.
Senator Cruz, will you and your Congressional colleagues do the same to protect Canadians and others around the world from outrageous demands of the IRS and U.S. Treasury?
Swanson is a retired human resources manager, writer and blogger. Born and raised in Pennsylvania, she has been a Canadian citizen for 40 years.
Part 3 – Unintended Consequences of FATCA: Will Taxpayer (Individual’s) Personal Financial Data at IRS get “Snowdened”?
Prior posts discussed unintended consequences of FATCA, including devaluing the U.S. citizenship to some with a resulting surge in U.S. citizenship renunciations. See, Part 2 – Unintended Consequences of FATCA – for USCs and LPRs Living Outside the U.S.
Under FATCA, countries will be collecting and then delivering massive amounts of taxpayer data to and from government agencies. Will governments use private contractors to manage and move this information (as did the NSA with Mr. Snowden)? The type of information that will be provided under FATCA is extensive, including names, financial account numbers, bank account names, taxpayer identification numbers (e.g., social security numbers, etc.), income earned from account assets, etc.
The Washington Post, 14 August 2014, in an article titled IRS handed taxpayer information to contractors without background checks focused on the recently released report of the Treasury Department oversight agency (The Treasury Inspector General for Tax Administration). In that news account, the article stated that the ” . . . that the IRS handed over a disc containing sensitive data on about 1.4 million taxpayers to a printing firm without any of the company’s employees being subjected to screenings. . . ”
The full TIGTA report from 7 July 2014 can be reviewed here and is titled, Some Contractor Personnel Without Background Investigations Had Access to Taxpayer Data and Other Sensitive Information
As more and more information is made available, and as it goes through more and more hands via FATCA channels, there is bound to be significant leaks and stolen personal financial information of individuals around the world.
The answer to the above question will only matter, for purposes of “tax expatriation” if the LPR plans on living and moving outside the U.S. The law defines a “’long-term resident’ as any individual (other than a citizen of the United States) who is a lawful permanent resident of the United States in at least 8 taxable years during the period of 15 taxable years.” See, IRC Section 877 (e)(2.
Importantly, there are key concepts of who satisfies these requirements, which is not as simple as it seems on its face. See, for instance Section 7701(b)(6) with specific rules for individuals who live in a country with a U.S. income tax treaty. Importantly, the definition of a lawful permanent resident for tax purposes (as defined in Section 7701(b) ) is not identical to the definition for immigration law purposes.
The importance of LPR status for tax purposes in the expatriation context is crucial. Its the saying “black or white” or “night or day” when thinking about the U.S. “expatriation” tax consequences to LPRs. In short, a LPR who never becomes a “long-term resident” as that technical term is defined in IRC Section 877 (e)(2) can avoid the various taxes that arise from otherwise being a “covered expatriate”. The future heirs and beneficiaries who receive assets from this LPR (who never was a “long-term resident?) can also avoid a major tax; currently 40% of the value of the gift or bequest. See, Revisiting the consequences of becoming a “covered expatriate” for failing to comply with Section 877(a)(2)(C).
The reason it is so important, is that if a LPR never becomes a “long-term resident”, he or she can never cause themselves to “expatriate” as that term is defined in IRC Section 877A(g)(2).
If a LPR never can “expatriate” under the tax law, he or she can never become subject to a range of adverse (some would say draconian) tax consequences that apply. See the following post for a further explanation of the various adverse tax consequences: Why “covered expat” (“covered expatriate”) status matters, even if you have no assets! The “Forever Taint”!
If there is no way in these circumstances for the LPR to “expatriate” there can be no “mark to market” tax and no future tax on covered gifts or covered bequests. See, Oops…Did I “Expatriate” and Never Know It: Lawful Permanent Residents Beware! International Tax Journal, CCH Wolters Kluwer, Jan.-Feb. 2014, Vol. 40 Issue 1, p9
Obviously, this is a very good result for a LPR to never become a “long-term resident”. Planning for it is another task; particularly given the personal living arrangements of each particular individual.
The determination of if or when one becomes a “long-term resident” is highly complex, due to different cross-provisions in the tax law. Specifically, Section 7701(b)(6) has a provision that can have unintended consequences for the unwary LPR. See, for instance, LPR status can be abandoned for tax purposes (since 2008 tax law changes) by merely leaving and moving outside the U.S. in some cases?
An earlier post discussed how USCs and LPRs living overseas have historically not been a focus of the policy makers at the federal government under FATCA; until now. See, Part 1- Unintended Consequences of FATCA – for USCs and LPRs Living Outside the U.S.
Another unintended consequence of FATCA is that U.S. citizenship (at least among a certain group of individuals) has become devalued. This is a reflection of how many people are renouncing citizenship, which in relative terms has been an explosion; e.g., a 500%+ increase in ten years from 2003 to 2013.
Still, in absolute terms, it is a very small number; particularly considering the number of non-U.S. citizens who wish to become a USC. In 2012, the USCIS reported there were 13.3 million lawful permanent residents (LPRs). See, DHS report, Estimates of the Legal Permanent Resident Population in 2012.
Presumably, most of these LPRs wish to become naturalized citizens?
In addition, 779,929 individuals became naturalized citizens in 2013. See, Department of Homeland Securities, Office of Immigration Statistics, U.S. Naturalizations: 2013.
In relative terms, there are many fewer individuals leaving/renouncing USC status, compared to those who are coming to the U.S. To put this into perspective, more individuals naturalized from each of the following countries compared to the total number of USCs who renounced in the entire year:
Nevertheless, I am confident that this large percentage increase in USC renunciations was not a goal or intention of the policy makers behind FATCA; an unintended consequence.
As the Foreign Account Tax Compliance Act (“FATCA”) has gone into effect (1 January 2014), there are an increasing number of consequences to United States citizens (USCs) and lawful permanent residents (LPRs) residing overseas.
There are many intended consequences of the FATCA law, such as the following:
- Identifying non-U.S. financial, investment and company assets of USCs and LPRs;
- Identifying the foreign financial institution (“FFI”) where such assets are located;
- Identifying non-financial foreign entities (“NFFE”) owned by the USC or LPR;
- Generally bringing transparency to the assets, accounts and information of worldwide assets of USCs and LPRs.
Ironically, I see a number of unintended consequences of FATCA; meaning consequences that were never contemplated by the U.S. Congress or the President when the laws were passed. Nor were they intended consequences of the U.S. Treasury Department as the FATCA Intergovernmental Agreements (“IGA) were negotiated throughout the world with various countries. See, Complete List of IGA Countries to Date (Very Few Notable Absences)
This and other follow on posts will discuss these unintended consequences.
One of the most significant unintended consequence, is that the U.S. federal government (the IRS, the Treasury Department, or Congress) never initially even contemplated USCs and LPRs living overseas. In other words, the group targeted were U.S. resident individuals who were evading taxes through foreign financial institutions. I say this, based upon extensive conversations I have had with ex-government officials and some government officials who were involved in the original policy discussions.
The focus then was on U.S. resident taxpayers; even though the U.S. imposes U.S. income taxes on the worldwide income of USCs living anywhere in the world. See, “Tax Simplification: The Need for Consistent Tax Treatment of All Individuals (Citizens, Lawful Permanent Residents and Non-Citizens Regardless of Immigration Status) Residing Overseas, Including the Repeal of U.S. Citizenship Based Taxation,” by Patrick W. Martin and Professor Reuven Avi-Yonah, 2013.
In practice, the U.S. federal government has known for many years that it can be nearly impossible to collect a tax liability against USCs who live and have their assets outside of the U.S. Specifically, the Treasury Department noted back in 1998 that . . .
- Other factors also operate to limit both compliance measurement and improvement. Because the United States asserts taxing jurisdiction over those with little or no connection to the United States other than citizenship or status as a lawful permanent resident, in many cases overseas U.S. taxpayers are difficult to trace or contact. Moreover, even when valid tax assessments can be made against overseas taxpayers, IRS has limited enforcement recourse if the taxpayer’s assets are physically located outside of the United States.
See pages 13-15 of the Treasury report which can be found at the post, Sometimes Old is as Good as New – 1998 Treasury Department Report on Citizens and LPRs
Also, the original offshore voluntary disclosure initiative in 2009 never even contemplated any particular treatment for USCs or LPRs residing overseas. I submit, the USC and LPR living overseas was not even on the “radar” of the IRS at the time the first program was created. It was not until 2011, that a new category was created that imposed a 5% penalty for persons residing overseas, but who also had only US$10,000 of U.S. sourse income.
As time has gone on, the IRS has realized that numerous USCs and LPRs indeed live somewhere other than the U.S. (millions of them) and yet again modified the 2014 OVDP to provide for a “0%” penalty in certain circumstances for these individuals.
Now even the Senate has started to focus on USCs living overseas. The Senate Permanent Subcommittee on Investigations focused extensively on Swiss accounts opened by USCs living overseas. The full report can be read REPORT: Offshore Tax Evasion:The Effort to Collect Unpaid Taxes on Billions in Hidden Offshore Accounts (February 26, 2014) –
In those reports, the Senate Permanent Subcommittee on Investigations focused extensively on USC owned Swiss accounts opened by USCs living outside the U.S. See, Key Take Aways from Senate Investigations re: Foreign Banks and “Offshore Tax Evasion”: U.S. Citizens Residing Overseas have Become a Focus of the Government.;
The U.S. federal government, led by the Department of Homeland Security (“DHS”) has taken great efforts and incurred great cost to develop technology and systems to track individuals as they come into the U.S. There are also programs afoot, specifically the Entry/Exit system with Canada, that helps track individuals as they leave the U.S. For more details, see the Wilson Center and its review of the Entry-Exit Systems in North America.
This tracking is very specific and part of the TECS database that is operated and managed by the DHS. The TECS database has been discussed in prior posts, including Does the IRS investigate United States Citizens (USCs) and Lawful Permanent Residents (LPRs) residing overseas?
See also, an earlier post that discusses the TECS database and its usage by the Internal Revenue Service in U.S. Enforcement/Collection of Taxes Overseas against USCs and LPRs – Legal Limitations
This topic will become even more relevant starting in 2015 as the IRS collects financial and account information via FATCA of USCs and LPRs residing in various countries throughout the world.
A series of posts dedicated to this topic will be made, including by guest immigration lawyers, discussing various legal implications of the tracking of U.S. citizens and LPRs.
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