USCs without a Social Security Number (and a Passport) Cannot Travel to the U.S.

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Recent posts have focused on the dilemma facing U.S. citizens (USCs) who have no social security number (“SSN”).  See an older post (23 July 2014) –  Why do I have to get a Social Security Number to file a U.S. income tax return (USCs)?

These problems are quickly coming to the surface, now that financial institutions US Passport(“FFIs”) around the world and private companies and trusts (e.g., non-financial foreign entities -NFFEs) must have their owners and clients certify they are not U.S. citizens; OR report the accounts of such U.S. citizens to the IRS under FATCA and the intergovernmental agreements (“IGAs”).

See, U.S. Citizens Overseas who Wish to Renounce without a Social Security Number will Necessarily be a “Covered Expatriate”

The intricacies of this problem are highlighted in a technical paper I recently drafted and presented to the U.S. Treasury Department and the Joint Committee of Taxation, among other federal government groups.  Some key excerpts of that paper titled URGENT NEED FOR U.S. CITIZENS RESIDING OUTSIDE THE U.S. TO BE ABLE TO OBTAIN A TAXPAYER IDENTIFICATION NUMBER (“TIN”) OTHER THAN A SOCIAL SECURITY NUMBER are set out below in this section:

The U.S. tax law imposing taxation on the worldwide income of USCs[1] residing overseas has created a dilemma that prejudices these USCs without a SSN. This strict SSN/TIN regulatory rule undermines the basic tax administration system and discourages tax compliance for those USCs who never obtained a SSN.  This dilemma affects numerous USCs throughout the world, which is now compounded by the certification and reporting requirements of USCs and third parties, such as FFIs and NFFEs[ under the Foreign Account Tax Compliance Act (“FATCA”).

In short, USCs without a SSN, necessarily cannot be in compliance with U.S. federal tax law.  As I point out in my paper, such –

A law that cannot be complied with is surely a bad law, the same as a “ . . .law that cannot be enforced is a bad law.”[a]

[a] See, The Case Against Taxing Citizens, Reuven S. Avi-Yonah (March 31, 2010), University of Michigan School of Law, Law & Economics Working Papers.

The paper referenced above explains how difficult it is for USCs residing overseas to ever obtain a SSN.  Specifically, it explains how difficult it is to have an in-person interview at only 18 different locations around the world with a U.S. Department of State employee.  See,  12 Year Old (and Older) U.S. Citizens Residing Outside the U.S. Must Have An “In-Person” Interview in a U.S. Embassy or Consulate for SSN Application in 1 of Just 17 Posts WorldwideExpatriates US citizens renounced chart through 2014

As a USC residing somewhere around the world, you might decide to simply spend the time, money and resources to travel internationally to arrive in the U.S. to apply for a SSN directly with the Social Security Administration within the U.S.  Unfortunately, any USC is now legally prohibited from traveling in or out of the U.S. without a U.S. passport.  There are few exceptions to this general rule, none of which contemplate U.S. federal tax compliance.    See, the relevant excerpts from the white paper:

C.               Travel to the U.S. is Also Not An Option for a USC without a SSN, Due to 22 CFR § 53.1 Requiring a U.S. Passport

A possible solution to this TIN/SSN dilemma may appear to be a trip to the U.S. by the USC to apply for a SSN in the U.S. Unfortunately, this simply creates another dilemma, since the USC must have a U.S. passport to travel to the U.S.   The immigration law regulations 22 CFR § 53.1 require that a U.S. citizen have a U.S. passport to enter or depart the United States. The relevant part of the regulations is § 53.1(a) which provides as follows:

Passport requirement; definitions.

(a) It is unlawful for a citizen of the United States, unless excepted under 22 CFR 53.2,[2] to enter or depart, or attempt to enter or depart, the United States, without a valid U.S. passport.

These regulations were first published in 2006 and unfortunately, simply create another dilemma for the USC residing overseas without a SSN. This additional dilemma is that an application[3] for a U.S. passport requires the individual have a SSN; a vicious circle back to the inability to obtain a SSN.

At the end of the day, the restrictions imposed on USCs make it legally impossible for a USC without a passport to travel to the U.S. (even if they wish they could) to obtain a SSN.

[1] See, IRC § 61 and Treas. Reg. §§ 1.1‑1(b) and 1.1‑1(a)(1)..

[2] The exceptions set forth in this regulation would not generally be applicable in the case of USCs residing overseas without a SSN.

[3] Application for a U.S. Passport – http://www.state.gov/documents/organization/212239.pdf.

3 thoughts on “USCs without a Social Security Number (and a Passport) Cannot Travel to the U.S.

    […] Martin also states that it is impossible for U.S. citizens to travel to the U.S. without an SSN. On its face, this looks like a reasonable conclusion from the warnings on the U.S. passport […]

    New York said:
    June 29, 2015 at 8:30 pm

    United States citizen is clearly defined at 26CFR31.3121(e)-1. The term “citizen of the United States” includes a citizen of the Commonwealth of Puerto Rico or the Virgin Islands, and, effective January 1, 1961, a citizen of Guam or American Samoa.

    Nowhere is the word or term “includes” expanded absent the words “but not limited to.” Therefore the conclusion by exclusion is it is not expanded. Territories and possessions of the United States do not include the States of the Union.

    What does that mean? If one is not a Puerto Rican, Virgin Islander, Guam or American Samoan then one must not be a “citizen of the United States” nor subject to “It’s” jurisdiction.

    Additionally the same Code also defines “the United States” as “when used in a geographical sense, means the several states (including the Territories of Alaska and Hawaii before their admission as States), the District of Columbia, the Commonwealth of Puerto Rico, and the Virgin Islands.” Agin you see where congress deliberately limited the definition of “several states” to “Territories of Alaska and Hawaii before their admission.”

    Finally, “the term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, the Territories of Alaska and Hawaii before their admission as States, and (when used with respect to services performed after 1960) Guam and American Samoa. Then what are Alaska and Hawaii after 1960 if not a State of the United States?

    We all know congress writes what they mean and mean what they write since they are not idiots nor uneducated in law. They know or have the means to know the law. What do they mean to say they are not included in the definition of State after their admission as States? Ahah! moment!

    New York said:
    June 29, 2015 at 9:15 pm

    FEDERAL TAX LAW
    NOTICE TO CUSTOMERS APPLYING OUTSIDE A STATE DEPARTMENT FACILITY REMITTANCE OF FEES
    Section 6039E of the Internal Revenue Code (26 U.S.C. 6039E) requires you to provide your Social Security number (SSN), if you have one, when you apply for or renew a U.S. passport. If you have not been issued a SSN, enter zeros in box #5 of this form. If you are residing abroad, you must also provide the name of the foreign country in which you are residing. The U.S. Department of State must provide your SSN and foreign residence information to the U.S. Department of Treasury. If you fail to provide the information, you are subject to a $500 penalty enforced by the IRS. All questions on this matter should be directed to the nearest IRS office.

    The Code clear states the following:

    (b) Information to be provided
    Information required under subsection (a) shall include—
    (1) the taxpayer’s TIN (if any),
    (2) in the case of a passport applicant, any foreign country in which such individual is residing,
    (3) in the case of an individual seeking permanent residence, information with respect to whether such individual is required to file a return of the tax imposed by chapter 1 for such individual’s most recent 3 taxable years, and
    (4) such other information as the Secretary may prescribe.

    U.S. Code › Title 26 › Subtitle F › Chapter 79 › § 7701

    (9) United States
    The term “United States” when used in a geographical sense includes only the States and the District of Columbia.
    (10) State
    The term “State” shall be construed to include the District of Columbia, where such construction is necessary to carry out provisions of this title.

    (c) Includes and including
    The terms “includes” and “including” when used in a definition contained in this title shall not be deemed to exclude other things otherwise within the meaning of the term defined.
    (d) Commonwealth of Puerto Rico
    Where not otherwise distinctly expressed or manifestly incompatible with the intent thereof, references in this title to possessions of the United States shall be treated as also referring to the Commonwealth of Puerto Rico.

    Therefore since the definition of State is limited to the District of Columbia, and the definition of United States is limited to State (District of Columbia), and United States (District of Columbia) and since it’s a federal District, it may only be wise to conclude it only means ‘federal district were Congress may enforce it’s tyranny outside the States of the Union (16 USC Sec. 2402) as it is specifically named therein.

    Conclusion is that a “State of the United States” and “States of the Union” is clearly and specifically not synonymous.

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