Author Topic: Dual Citizenship + Filing US Taxes  (Read 4450 times)

TexanToAlbertan

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Dual Citizenship + Filing US Taxes
« on: March 19, 2015, 04:31:50 PM »
Hi!

This may be a little too off-topic, but I'm rather desperate and thought it couldn't hurt to try for some advice from a fellow Mustachian or two. I'm a dual citizen (US/Canadian) living in Canada and have recently learned that I'm apparently supposed to be filing US taxes along with my Canadian every year! After quite a bit of research (and stress) I've come to the conclusion that this is going to be bad - very bad in a monetary sense. The cost of filing US taxes in Canada is anywhere from $600-800 per year (OUCH!) and filing on my own (like I do with my Canadian) seems like a daunting and risky (up to $10,000 fine per error...yeah).

To become "compliant" with the IRS I need to file for the past 3 years + complete FBARs (Foreign Bank Account Report) for the past 6 (something I can apparently do myself online - we'll see).

Now, here's the real kicker. My tax situation right now is fairly simple (I'm not married, have nothing in the way of investments, RRSPs or TFSAs) BUT that is all about to change in the near future, which will make my tax situation a lot stickier and a lot pricier on the filing side of things ($800 /year was quoted to file for a simple tax return). Obviously $800 is an amount no sane person would want to spend just to have someone tell them that they don't owe any taxes to a country in which they don't reside - gee thanks, tax dude. SO - I'm looking into renunciation...which has, unfortunately for me, gone from a $450 fee to a whopping $2350 fee. In the long run though renunciation is a small price to pay when you consider the cost of $800/ yr. to file US taxes over a lifetime...which will add up to an amount that makes my brain and my Mustachian heart hurt.

***And if renunciation is indeed the route I choose, I'll need to file for the past 5 years + 6 yrs. FBAR - so, I'd be looking at $6000+***

I guess I'm just wondering if anyone else has gone through this or is going through it right now? Any advice for a crippled Mustachian spirit?

Cheers
Loren

Cathy

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Re: Dual Citizenship + Filing US Taxes
« Reply #1 on: March 20, 2015, 09:57:16 AM »
It's a common misconception that it costs money to give up US citizenship. The $2350 fee is what the Secretary of State charges for renunciation services, but that is only one way to give up US citizenship. The law provides several other ways that are free. I recently explained this is in another thread: http://forum.mrmoneymustache.com/investor-alley/american-living-in-canada-with-a-tfsa-maybe-not-so-tax-free/msg589682/#msg589682

I would note that the Department of State website supports what I said about relinquishment in the linked post. As they explain, "[a]n individual who has performed any of the acts made potentially expatriating by statute who wishes to lose US nationality may do so by affirming in writing to a US consular officer that the act was performed voluntarily with an intent to relinquish US nationality". There is no fee for this. However, the information on that page under the heading "Loss of Nationality and Taxation" is outdated and should be ignored. (The regime of taxing former US nationals is no longer the law.)

There is no need to become compliant with US tax law to renounce citizenship. Failing to become compliant will mean you will be subject to expatriation tax when you relinquish citizenship because you will be unable to certify that you have complied with your US tax obligations in recent years, but the expatriation tax will be $0 because it is a tax on the portion of unrealised capital gains above $680,000 (adjusted for inflation each year), and based on what you said, you don't have anywhere near $680,000 in assets, let alone unrealised capital gains. So in your case, there is little need to become compliant to renounce.

Failing to become compliant will mean you could still be subject to penalties for the earlier noncompliance, but becoming compliant is not a condition precedent to relinquishing US citizenship. The penalties will be harder to enforce if you are no longer a US citizen and never go back to the US. In any case, becoming compliant can be addressed separately from relinquishing citizenship.

Relinquishing US citizenship is going to be a lot of paperwork, but it will be free, other than the postage to mail some documents. Again, penalties may still apply depending on what you did in the past, but they will apply independently of whether you give up citizenship and are not a cost of giving up citizenship.

If you aren't comfortable completing this exercise yourself, retaining a lawyer to help you will be fairly pricy, and the advice might not be even very good (for some reason, even a lot of professionals believe that the $2350 fee is the only way to relinquish US citizenship, but that's very clearly not the case). If you do retain somebody, I would highly recommend retaining a lawyer and not just an accountant.
« Last Edit: March 20, 2015, 10:24:05 AM by Cathy »

TexanToAlbertan

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Re: Dual Citizenship + Filing US Taxes
« Reply #2 on: March 20, 2015, 01:40:45 PM »
First of all, thank you so much for the taking the time to contribute such an in-depth reply.

I suppose what compelled me to write the post in the first place was the fact that nothing I came across on the internet seemed legit. I'm glad I trusted my gut in not accepting that it could possibly cost so much do something which logically should cost nothing but my "...permanent allegiance to the United States."

I could have been clearer in my original post, however - I understand that becoming compliant isn't a condition required for relinquishment. In fact, it is my understanding that it would be unlawful for any authority to bring up the subject of taxation during the renunciation process (is there any validity to that?).

My concern is just as you've stated, that "Failing to become compliant will mean you could still be subject to penalties for the earlier noncompliance." This is something which might continue to haunt me until the end of days - or maybe not. I'm left wondering how likely it would be that the IRS would ever come after me and if they did how steep these so-called penalties would be in reality. Is the risk worth taking - the answer to that question is something I need to come to terms with.
« Last Edit: March 20, 2015, 01:43:26 PM by TexanToAlbertan »

jopiquant

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Re: Dual Citizenship + Filing US Taxes
« Reply #3 on: March 20, 2015, 01:51:09 PM »
Thanks to Cathy for all the detail on this. 

We are in this same situation, BUT we cannot relinquish. We have since acquiring Canadian citizenship continued to file US taxes, as we knew were obliged to. Because of this, our becoming Canadians does not count as a relinquishing act - this is direct from US consular office where we went to give it a shot.

For us to get out, we'd have to renounce. To the tune of $2350 USD each. I don't think there is validity to them being unable to bring up taxation, as you will find it is mentioned on your forms for relinquishing.

It's important to remember that there are two entities involved here - the IRS and the US State Department. If you are successful at relinquishing (fingers crossed on your behalf), you need also file with the IRS to notify them or they will continue to believe you are delinquent, with ever-escalating penalties. Another little matter to note "if you are never going back to the US." Our family lives there and we visit several times a year. While it is very, very uncommon to be denied entry, US Customs/Border Protection can certainly deny you entry if they believe you renounced or relinquished for the purpose of avoiding your income tax obligations. http://www.financialpost.com/story.html?id=e70e2324-93cd-429e-a365-a975663c227c&k=57250

Sigh. It's not the best situation to be in OP, I feel you.

Cathy

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Re: Dual Citizenship + Filing US Taxes
« Reply #4 on: March 20, 2015, 02:01:01 PM »
For us to get out, we'd have to renounce. To the tune of $2350 USD each.

The consular official was likely correct that your act of becoming Canadian was not an expatriating act because since you continued to believe you were a US citizen (as evidenced by filing US taxes), it was not your intent to give up US citizenship.

However, it does not follow that you need to pay for the renunciation process to relinquish citizenship. As I said, that is not the case.

To quote my previous post:

Quote
In particular, 8 USC § 1481(a)(2) provides that a US citizen gives up US nationality by voluntarily (and with the intention of relinquishing US nationality) taking an oath or other formal declaration of allegiance to a foreign state after turning 18. This is something that your wife can do at any time to relinquish US citizen for free (for nationality purposes).

Somewhat bizarrely, the tax laws actually contains a slightly different relinquishment regime. For nationality purposes, your wife would give up US citizenship simply by voluntarily performing an expatriating act while having the relevant intention. No notification to anyone is required. However, for tax purposes (pursuant to 26 USC § 877A(g)(4)), your wife will not be treated as giving US citizenship until she furnishes to the Department of State a "a signed statement of voluntary relinquishment of United States nationality confirming the performance of an act of expatriation". The law apparently does not require this to be in any particular form. Alternatively, instead of sending a statement, your wife could file Form DS-4079 (Request for Determination of Possible Loss of United States Citizenship) to obtain a certificate of loss of US nationality, the issuance of which also establishes relinquishment for tax purposes pursuant to 26 USC § 877A(g)(4)(C). The Form looks like more work than simply sending a statement and, moreover, using the Form allows the Department of State to disagree with you and not issue a certificate; whereas their opinion on your wife's statement would be irrelevant because the act of furnishing the statement itself establishes loss of nationality for tax purposes (no response is required).


Right now, at this very second, you can cease to be a US national for nationality purposes if you, voluntarily and with the intent of relinquishing US citizenship, make a formal declaration of allegiance to Canada. This does not need to be in any particular form. The purely private act of making that declaration with the correct intention causes you to no longer be a US national.

However, for tax purposes, a bit more is required: you also need to write to the Department of State and send them "a signed statement of voluntary relinquishment of United States nationality confirming the performance of an act of expatriation [namely, the voluntary formal declaration of allegiance to Canada, with intention of relinquishing US nationality]". After doing that, you also need to file the paperwork with the IRS as I mentioned in my post.


As for immigration law, it is correct that, pursuant to 8 USC § 1182(a)(10)(E), a former citizen who is "determined by the Attorney General to have renounced United States citizenship for the purpose of avoiding taxation by the United States" is inadmissible.

The good news is that this provision only applies to renunciation.

In US nationality law, "relinquishment" is the general term for giving up US nationality. The term "renunciation" is a specific way to relinquish nationality by appearing before a US consular officer and paying the $2350 fee.

In order words, if you relinquish through an expatriating act other than the consular process, not only do you avoid the fee, but the inadmissibility provision does not apply to you, and you remain admissible to the US (unless you are inadmissible on other grounds).


As for government officials asking you questions, as a general rule, government officials can ask you whatever they want. That does not mean you have to answer, unless required by law.
« Last Edit: March 20, 2015, 07:32:39 PM by Cathy »

jopiquant

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Re: Dual Citizenship + Filing US Taxes
« Reply #5 on: March 20, 2015, 02:07:08 PM »
Thank you. Sorry to hijack thread OP.

Definitely food for thought. When we first visited the US by air after becoming Canadians, we presented our US passports and the customs agent almost took them away from us - so there is a major gap between what is legitimate in the eyes of the law and actually getting around with your daily life without major repercussions.

TexanToAlbertan

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Re: Dual Citizenship + Filing US Taxes
« Reply #6 on: March 20, 2015, 02:09:18 PM »
Jopiquant - do I understand you correctly in that the reason in which you cannot relinquish and must pay the $2350 renouncement fee is because you have been filing your US taxes since acquiring Canadian citizenship? If so, this shouldn't be an issue for me as I have never filed US taxes while living in Canada. In addition, I have not used my US passport since becoming a Canadian citizen.

Also - though I wouldn't say that I travel to the US frequently, I definitely plan on going back many times for leisurely purposes in my lifetime. However, I do not plan on ever living in the US again.

But yes, it's a horribly stressful and entirely unfair situation. BIG sigh.

Cathy

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Re: Dual Citizenship + Filing US Taxes
« Reply #7 on: March 20, 2015, 02:10:54 PM »
Regarding passports: After you complete your expatriating act, you certainly should never use your US passport again, and should return it. If you use and/or retain your US passport, it will be evidence that you did not have the correct intention to relinquish US nationality at the time of the expatriating act.

jopiquant

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Re: Dual Citizenship + Filing US Taxes
« Reply #8 on: March 20, 2015, 02:11:37 PM »
They're expired now. We intentionally didn't renew.

Cathy

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Re: Dual Citizenship + Filing US Taxes
« Reply #9 on: March 20, 2015, 02:19:56 PM »
For the OP: Regarding potential penalties, before losing sleep over that, you need to determine what penalties, if any, may actually apply. It's easy to read about big fines and get scared, without reading the law to find out if the penalties actually apply to your situation. I would remain calm until doing more research.

For example, the FinCEN report only needs to be filed if the aggregate balance of your foreign accounts exceeded $10,000 during the year.

The civil penalties for not filing a tax return per se are generally only a proportionate amount of the unpaid tax, so if you didn't owe any tax, there are no civil penalties.

There are various other specific tax forms that attract high penalties if not filed, but until you research more, you won't know if you actually crossed the thresholds to be required to file them.

So, for now, I would remain calm and not assume the worst.

jopiquant

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Re: Dual Citizenship + Filing US Taxes
« Reply #10 on: March 20, 2015, 02:25:09 PM »
Jopiquant - do I understand you correctly in that the reason in which you cannot relinquish and must pay the $2350 renouncement fee is because you have been filing your US taxes since acquiring Canadian citizenship? If so, this shouldn't be an issue for me as I have never filed US taxes while living in Canada. In addition, I have not used my US passport since becoming a Canadian citizen.

Yes, agreed to both your situation and mine. Although Cathy has given me new hope we might be able to put the days of dual filing behind us. We used a paid professional only for the first year we were here when we had half income in one country and half in the other. Since then I've done our filings, and it's a drag.

TexanToAlbertan

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Re: Dual Citizenship + Filing US Taxes
« Reply #11 on: March 20, 2015, 03:39:23 PM »
Cathy: very good advice. I will remain calm. And carry on. I giant weight has been lifted from my shoulders, so thank you for that.
Jopiquant: Sounds like good news for both of us. Good luck!!

jopiquant

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Re: Dual Citizenship + Filing US Taxes
« Reply #12 on: March 20, 2015, 06:21:36 PM »
Texan - I think you're okay.

For me, we'll give it a go, but the ball is still in their court according to 26 U.S. Code § 877A - Tax responsibilities of expatriation, g4 (B), which below specifies that it doesn't count unless they accept it:
"Subparagraph (A) or (B) shall not apply to any individual unless the renunciation or voluntary relinquishment is subsequently approved by the issuance to the individual of a certificate of loss of nationality by the United States Department of State."


Cathy

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Re: Dual Citizenship + Filing US Taxes
« Reply #13 on: March 20, 2015, 06:43:12 PM »
jopiquant, great point. Thanks for pointing that out. You're correct that the Department of State does retain the ability to find that you did not relinquish citizenship, and I overlooked mentioning that.

However, the good news is that the date you furnish the statement establishes the date of relinquishment (not the date of any response to it (assuming it is eventually accepted)). So it's still important to do that as soon as possible so that you end the obligation to pay taxes as a citizen (assuming that is what you want to do). Good luck!
« Last Edit: March 20, 2015, 07:25:44 PM by Cathy »