Your Life

I  came across a news article that started as follows (Vancouver Observer):

Several weeks ago, my brother sent me an article from the Financial Post — and my life changed in an instant.

My brother and I were born in the United States, but we left as teens. I have lived and worked in Canada for close to the last four decades, as a proud Canadian citizen.

The article talked about the fact that the U.S. is the only country in the world that taxes its citizens who are neither living in the U.S. nor working there. Even if American ex-pats are not earning an income there, the U.S. government is still able to tax them.

But it gets worse –- in its supreme arrogance, because our neighbor to the south is broke and in considerable debt, it is now bullying folks like me, by laying down the law saying that all of its citizens must pay U.S. taxes, regardless of the circumstances. And if any non-resident citizens choose to be ‘non-compliant’ and not file up to several years of back taxes, they could be punished by facing stiff fines of up to 25% of their entire financial worth, and maybe even go to jail. The jackbooted tone of the warning was clear. The IRS meant to scare –- and it worked.

There are many U.S. expats who are still not aware of FBAR, FATCA, OVDI, and the like. Those who became aware of these things are unlikely to forget the day, the moment, where you were and how you learned of it. From the moment that you learned of these things, your life was irreparably changed. The vast majority of U.S. expats were and are law abiding citizens.

Furthermore, it is likely in terms of their self  images that they:

–        Thought of themselves as law abiding, honest people

–        Had done their best to be tax compliant and law abiding

–        Were loyal patriotic Americans

–        Were and are fair minded people who could not conceive that the U.S. government could behave in such an immoral and “irresponsible and unreasonable” way (Apologies to Ambassador Jacobson)

From the moment they became aware of this IRS nightmare, it is likely that they:

–        Felt frozen, scared and confused (like a deer in the headlights)

–        Felt a strong sense of having been betrayed

–        Were unable to obtain any consistent, reasonable and clear advice about what to do

–        May have been pressured to enter OVDI

–        Did not have the money to pay the legal and accounting fees to even begin compliance

–        Would never have had the money to pay any penalties

–         Find it hard to believe that they are being treated as though they are criminals

 After the dust had begun to settle, on  the “Economic Front” it is  likely that may U.S. expats  realized that:

–        “U.S. citizenship was a problem to be solved” (to use the words of Phil Hodgen) and that the only way to solve it, was to renounce.

–        Barrie McKenna of the Globe and Mail likened the rift to “divorce”

–        U.S. citizenship presents a clear and present danger to the financial health of you and your family

Your Health – From the perspective of their emotional and physical health, there is no doubt:

–        The “jackboot” behavior of the IRS has severely damaged the physical health of many U.S. expats. After all, how much stress and worry can a law abiding citizen take?

–        The sense  of betrayal, unreasonableness, and unfairness  has created tremendous emotional and psychological problems for those affected by this. The shock of 2011 has been severe – it is likely that many U.S. expats will need psychological counseling if they are ever to recover. This is another aspect of the “collateral” damage associated with all of this.

My unprofessional but (I hope practical advice):

1.  This is not YOUR FAULT – you have done nothing wrong. Even if you are violation of the FBAR law, you have done nothing wrong in a moral sense. As you now know, there is no relationship between law and morality.

2. You are shocked to find that the U.S. is not the country that you thought it was. You believed that the U.S. was that “great citadel of freedom and justice”. ‘That’s what the country was – that is how you remember it. You are finding it hard to believe that you were wrong. You feel that you were deceived, conned, lied to, misled. That’s partially true. The reality is that the U.S. is no longer the country that it was. The U.S. under the Obama administration is nothing more than a vicious, debt ridden thug. The U.S. has evolved from being a nation of laws to a nation of forms.

3. If you are a U.S. patriot you feel betrayed – you feel that your patriotism is being tested. A  U.S. patriot has allegiance to the ideals and constitution of the United States of America. This is different from an allegiance to the U.S. government of the day. If the government does not respect the constitution, then the most patriotic thing you could do may to renounce your U.S. citizenship.

4. Although your first instinct may to run and hide – you do need to deal with this situation.  The problem is that you don’t know how to deal with it – you can’t find consistent, reliable advice. You are required by law to file a tax return, and FBAR and the new (for 2011) son of FBAR  form. Although this is not legal advice – common sense dictates that you should (at least) be compliant on a “going forward” basis.

5. Those of you who are U.S. Canada dual citizens should familiarize yourself with the provisions of the tax treaty in regard to reporting penalties. You will be happy when you investigate this.

6. Your tax and reporting issues are dependent on your decision to remain a U.S.  citizen. No two people are the same. U.S. citizenship is a problem to be solved. What are the principles that should be utilized to solve it? What are the questions to ask? You have been betrayed by the U.S. government. The U.S. is not the country it was. The U.S. does not subscribe to the very ideals that are the basis of your patriotism. This is a decision that must be based on principle – the question is: what is the right principle to make the renunciation decision? You have been betrayed by the U.S. My advice: make this decision based entirely on what works for you in your particular life circumstances. Recognize that you cannot predict the future with accuracy. There is no decision where there is no possibility of regret.

7. The “what is good for you principles” for you should recognize that:

–        The reporting requirements of FBAR, FATCA, etc. could put a serious strain on your marriage (the non-American spouse may be unwilling to live with the IRS);

–         Remaining a U.S.citizen may make it difficult you to avail yourself of normal banking arrangements;

–         Remaining a U.S. citizen will make it harder for you invest and save for retirement in your country of residence;

–        Remaining a U.S. citizen will force you to spend lots of time and money on reporting requirements. Remember the U.S. is now a nation of forms. Can you even afford the cost of compliance?

–        Remaining a U.S. citizen will force you to live in constant fear of the IRS

–        Remaining a U.S. citizens means that if you ever do accumulate wealth you will be subject to the U.S. estate tax rules (I have no idea how this would coordinate with the death tax rules of other countries)

–        If you have less than two million of net worth you are not a “covered expatriate”, you can (and possibly should) divest yourself of U.S. citizenship before you hit the two million mark (it is not uncommon in Toronto or Vancouver to own a house that is worth more than one million dollars)

–        If you have a net worth of two million or more, you will have to pay an exit tax if you renounce your U.S. citizenship. Remember that what you pay now, will be a savings to your estate. You can pass more money and assets to your children.

–        And now to the only positive of retaining U.S. citizenship: you can go back and live and work in the U.S. Is it worth it?

Your Wealth

Your wealth is only one factor in the equation. That said: for many U.S. expats the financial cost may be less to renounce now, rather than later. Think of your children.

A Final Thought

You have been placed in a horrible situation that is not of your making. Remember the bright side: as an expat you and (presumably most of your money) are already outside the United States.  After January 1, 2014 (the day FATCA takes effect) it will be very difficult for U.S. residents to leave. You are blessed with the wonderful opportunity of being able to live where you want. It is interesting that the U.S. constitution guarantees neither a right to enter the U.S. nor a right to leave the U.S. The Canadian Charter of Rights guarantees Canadian citizens the right to both enter and to leave Canada. In 1982, I was puzzled by this provision. I now understand why the constitutional right to leave a country is important!

In closing, read the following comment which describes how the participation in the OVDI program has completely transformed the life, health and wealth of this U.S. expat. Do you need the protection of the U.S. government or do you need protection FROM the U.S. government?

 “Just Me said…
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