Category Archives: Uncategorized

False Form 8854 used as part of “willful” #FBAR prosecution

The primary story is of a U.S. professor who pleaded guilty to an FBAR violation and was subjected to a 100 million FBAR penalty.  Notably the “tax loss” was 10 million dollars and the FBAR penalty was 100 million dollars. It appears that Mr. FBAR is becoming an important tool in the arsenal used by the United States Treasury.

The more interesting (for the purposes of expatriation) was the role that a “false Form 8854 “Expatriation Statement”) may have played in the guilty plea.

The story has been reported at the following two sources:

and on Jack Townsend’s blog

What is most  interesting is the description from the Department of Justice site which includes:

Horsky directed the activities in his Horsky Holdings and other accounts maintained at the Zurich-based bank, despite the fact that it was readily apparent, in communications with employees of the bank, that Horsky was a resident of the United States.  Bank representatives routinely sent emails to Horsky recognizing that he was residing in the United States.  Beginning in at least 2011, Horsky caused another individual to have signature authority over his Zurich-based bank accounts, and this individual assumed the responsibility of providing instructions as to the management of the accounts at Horsky’s direction.  This arrangement was intended to conceal Horsky’s interest in and control over these accounts from the IRS. 

In 2013, the individual who had nominal control over Horsky’s accounts at the Zurich-based bank conspired with Horsky to relinquish the individual’s U.S. citizenship, in part to ensure that Horsky’s control of the offshore accounts would not be reported to the IRS.  In 2014, this individual filed with the IRS a false Form 8854 (Initial Annual Expatriation Statement) that failed to disclose his net worth on the date of expatriation, failed to disclose his ownership of foreign assets, and falsely certified under penalties of perjury that he was in compliance with his tax obligations for the five preceding tax years.

Horsky also willfully filed false 2008 through 2014 individual income tax returns which failed to disclose his income from, and beneficial interest in and control over, his Zurich-based bank accounts.  Horsky agreed that for purposes of sentencing, his criminal conduct resulted in a tax loss of at least $10 million.  In addition, Horsky failed to file Reports of Foreign Bank and Financial Accounts (FBARs) up and through 2011, and also filed false FBARs for 2012 and 2013.

The point is that the false Form 8854 (used primarily to provide information about whether one is a “covered expatriate” and to calculate the Exit Tax) was used as evidence of part of a conspiracy to evade taxes. This is an interesting use of the Form 8854,  which is primarily an “information return”.

Obviously this a “general interest” post with extremely unusual circumstances. But, it is an example of how associations with others, in the  “Wide and Wonderful World of U.S. Tax Forms” can become a problem.

This is also a reminder the “information returns” DO matter!










Why Boris Johnson must relinquish US citizenship on the occasion of his appointment as British Foreign Minister

A recent post (July 7, 2016) on this blog began with:

Prologue – U.S. citizens are “subjects” to U.S. law wherever they may be in the world …

Yes, it’s true. In 1932 (eight years after the Supreme Court decision in Cook v. Tait), Justice Hughes of the U.S. Supreme Court, in the case of Blackmer v. United States ruled that:

While it appears that the petitioner removed his residence to France in the year 1924, it is undisputed that he was, and continued to be, a citizen of the United States. He continued to owe allegiance to the United States. By virtue of the obligations of citizenship, the United States retained its authority over him, and he was bound by its laws made applicable to him in a foreign country. Thus, although resident abroad, the petitioner remained subject to the taxing power of the United States. Cook v. Tait, 265 U.S. 47, 54 , 56 S., 44 S. Ct. 444. For disobedience to its laws through conduct abroad, he was subject to punishment in the courts of the United States. United States v. Bow- [284 U.S. 421, 437] man, 260 U.S. 94, 102 , 43 S. Ct. 39. With respect to such an exercise of authority, there is no question of international law,2 but solely of the purport of the municipal law which establishes the duties of the citizen in relation to his own government. 3 While the legislation of the Congress, unless the contrary intent appears, is construed to apply only within the territorial jurisdiction of the United States, the question of its application, so far as citizens of the United States in foreign countries are concerned, is one of construction, not of legislative power. American Banana Co. v. United Fruit Co., 213 U.S. 347, 357 , 29 S. Ct. 511, 16 Ann. Cas. 1047; United States v. Bowman, supra; Robertson v. Labor Board, 268 U.S. 619, 622 , 45 S. Ct. 621. Nor can it be doubted that the United States possesses the power inherent in sovereignty to require the return to this country of a citizen, resident elsewhere, whenever the public interest requires it, and to penalize him in case of refusal. Compare Bartue and the Duchess of Suffolk’s Case, 2 Dyer’s Rep. 176b, 73 Eng. Rep. 388; Knowles v. Luce, Moore 109, 72 Eng. Rep. 473.4 What in England was the prerogative of the sov- [284 U.S. 421, 438] ereign in this respect pertains under our constitutional system to the national authority which may be exercised by the Congress by virtue of the legislative power to prescribe the duties of the citizens of the United States. It is also beyond controversy that one of the duties which the citizen owes to his government is to support the administration of justice by attending its courts and giving his testimony whenever he is properly summoned. Blair v. United States, 250 U.S. 273, 281 , 39 S. St. Ct. 468. And the Congress may provide for the performance of this duty and prescribe penalties for disobedience.

It’s that simple. If you are a U.S. citizen, some would argue that you are the property of the U.S.government.

On the other hand (and this will be the subject of another post), the Supreme Court decisions in Cook v. Tait and Blackmer v. The United States were decided in an era where there was no U.S. recognition of dual citizenship. It is reasonable to argue that these decisions have no applicability in the modern world.

There will be those who will say: Come on! Get real! The United States would never rely on these old court decisions. Well, they still do cite Cook v. Tait. Mr. FBAR lay dormant until it was resurrected by the Obama administration as the “FBAR Fundraiser“.

Dual Citizenship: What is the “effect” of a U.S. citizen also holding the citizenship of another nation?

The State Department description includes:

However, dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries. Either country has the right to enforce its laws, particularly if the person later travels there. Most U.S. nationals, including dual nationals, must use a U.S. passport to enter and leave the United States. Dual nationals may also be required by the foreign country to use its passport to enter and leave that country. Use of the foreign passport does not endanger U.S. nationality. Most countries permit a person to renounce or otherwise lose nationality.

The life and times of Boris Johnson – A United States taxpayer by birth

Assumptions about Mr. Johnson’s citizenship …

I am assuming that he became both a U.S. and U.K. citizen by birth. I also assume that he remains both a U.S. and a U.K. citizen.

A U.S. Centric Perspective: As a U.S. citizen, Mr. Johnson is defined primarily in terms of taxation. On the occasion of Mr. Johnson’s recent appointment as the U.K. Foreign Minister, the Washington Times published the following article.

The article referenced in the above tweet provides an interesting summary of the Mr. Johnson’s adventures with the U.S. tax system. The article demonstrates how U.S. “place of birth” taxation is used to extract capital from other nations and transfer that capital to the U.S. Treasury. (As always the comments are of great interest.)

A non-U.S. Centric Perspective: Mr. Johnson is a “poster boy” for the problems of the U.S. “place of birth taxation” (AKA “taxation-based citizenship”). Mr. Johnson’s “IRS Problems” resulted in raising the profile and awareness of U.S. tax policies. A particularly interesting article was written by Jackie Bugnion and Roland Crim of “American Citizens Abroad”.

At a minimum, Mr. Johnson is subject to IRS jurisdiction, IRS reporting requirements, IRS threats and penalties and IRS assessments.

Boris Johnson has now been named the U.K. Foreign Minister …

How does his United States citizenship impact on this situation? Is it possible for him to be both a U.S. citizen and the British foreign minister? The “logical answer” is “Yes he can”. That said, having a U.S. citizen as the U.K. foreign minister raises many questions.

These questions include:

1. What effect (if any) does Mr. Johnson’s acceptance of this position have on his retention of United States citizenship as a matter of U.S. law?

2. If his acceptance of the position were a “relinquishing act” (under U.S. law) would Mr. Johnson be subject to the United States S. 877A Exit Tax?

3. Assuming that Mr. Johnson were to retain “dual” U.S./U.K. citizenship, how would his “divided loyalties” impact on this ability to serve as the British foreign minister?

4. Assuming that Mr. Johnson were to retain “dual” U.S./U.K. citizenship, how does the fact that the IRS has the jurisdiction to threaten him with fines and penalties impact the situation? What about the reporting requirements?

5. Should Boris Johnson formally relinquish his U.S. citizenship in order to avoid the conflict of interest that would arise because of divided loyalties?

Each question will be considered separately. Here we go …

Continue reading

Dual citizenship, the lack of definition of “citizen” in the “Savings Clause” of U.S. Tax Treaties and why these are important


Introduction …

This is a “follow up” to my first post about the “Savings Clause” in the Canada U.S. Tax Treaty. The purpose of that first post was to demonstrate that pursuant to the “Savings Clause”, the Government of Canada has agreed to allow the United States to impose direct taxation on some Canadian citizens who are resident in Canada. The post generated a fascinating discussion about the “Savings Clause” and was widely discussed at the Isaac Brock Society. A subsequent post at the Isaac Brock Society provided greater detail about exactly how, and in what respects, the Government of Canada has agreed that the United States can impose direct U.S. taxation on some Canadian citizens and residents. One obvious conclusion from this discussion is reflected in the comment that:

Next time someone tells me that the tax treaty relieves double taxation, I’ll tell them that it causes it. We have RDSP’s and RESP’s to prove it.

I absolutely agree. Although there are a few specific areas where the Tax Treaty mitigates against double taxation, for the most part, because of the Savings Clause, the U.S. Canada Tax Treaty, does NOT prevent double taxation. By ensuring U.S. taxation of Canadian residents and citizens, the U.S. Canada Tax Treaty guarantees double taxation!

It’s a myth that the tax treaty prevents double taxation. As John F. Kennedy said in his commencement address at Yale University on June 11, 1962:

Continue reading

Evolution of process of relinquishing US citizenship in Canada – Form 4079 no longer used

In the last year I have written the following three posts about the evolution of the process of “formal expatriation” (NOT the do it yourself version AKA – simply “delete US citizenship“).

This is the fourth post. This post confirms that the the process in Canada no longer includes Form 4079. Instead a questionnaire has been included as a possible substitute for Form 4079. It appears that those who are applying for “back dated relinquishments” should use the questionnaire to document the basis for the claim.

The first three posts have been:

1. July 10, 2015 -Thoughts on: Major updates to Foreign Affairs Manual on U.S. citizenship renunciation proceduresRelinquishment fee moving from no charge to $2350, phasing out Form 4079, no lawyers allowed at appointments

2. November 4, 2015 State Department Phasing Out Form 4079 for relinquishments of U.S. citizenship – A review the role played by Form 4079 in different U.S. consulates around the world.

3. February 17, 2016 – New instructions to book Canada appointments to relinquish or renounce US citizenshipdescribing the new centralized process for relinquishment U.S. citizenship in Canada

Today’s (May 26, 2016) post confirms that Form 4079 appears to have been eliminated in Canada. What is expected now?. You being the relinquishment process (which includes renunciation) in Canada (different countries have different rules) by emailing: You will then receive a reply email which provides instructions.

That is the contents of the automated reply which provides direction and guidance – Here is the questionnaire that is attached to the email:

Questionnaire from CanadaCLNInquiries

As of May 26, 2016 the reply email includes:


Continue reading

Tax Haven or Tax Heaven 8: The US attempt to “suck and blow” at the same time – keeping corporate profits out of the USA

The previous posts have argued that:

1. The purpose of a “Tax Haven” is to lure or entice capital from “foreign” jurisdictions.

2. The purpose of U.S. citizenship-based taxation is to lay claim to the capital of other nations and transfer that capital to the U.S. Treasury.

The attraction of capital is a good thing and helpful to nations. In fact, the purpose of “citizenship by investment programs” is another way that countries attract capital.

Yet, the United States has an Internal Revenue Code that (leaving aside the tax rates and the narrow circumstances of Internal Revenue Code S. 871) operates to keep capital out of the United States.

Examples include:

A. The rules that keep U.S. corporations from repatriating corporate profits to the United States.

B. The rules that prevent gifts and bequests (yes this is capital) from “covered expatriates” from returning to the U.S. economy.

C. The oppressive corporate tax rules that incentivize corporations to “invert” and effectively renounce their citizenship.

D. The S. 877A Exit Tax rules that incentivize “Green Card Holders” to move from the United States before they become “long term residents” and subject to the Exit Tax.

The problem is NOT tax havens. The problem is NOT tax evasion. The problem is an “Internal Revenue Code” that operates in a way that is contrary to the formation, investment and retention of capital in the United States. Why is this not obvious? Why doesn’t the United States face up to this obvious problem?

Outside looking in vs. inside looking out …

This seems so clear if one is outside the United States looking in. Perhaps it is impossible to see if one is inside the United States looking out.

The biggest threat to the United States is NOT what takes place outside the United States. The biggest threat to the United States is the Internal Revenue Code of the United States.

What follows is an article that I wrote that appeared in Forbes Magazine.

Continue reading

@SenTedCruz sponsors “Expatriate Terrorism Act”: threatens certain US citizens with loss of citizenship

By the time I had received this fascinating “hot off the press” information from a U.S. law firm, I had read the article referenced in the above tweet. The article is written by David Bier who is an immigration policy analyst at the Niskanen Center. It has generated interesting discussion at Keith Redmond’s  “American Expatriates Facebook Group“.

Yes, it’s true, Canadian born, U.S. presidential candidate Ted Cruz, has introduced a bill threatening people with the loss of U.S. citizenship (notwithstanding that the U.S. Supreme Court has ruled that U.S. citizenship belongs to the citizen and NOT to the government). It is clear that Senator Cruz, hearkening back to the days of the Viet Nam era and before, is of the view that U.S. citizens remain citizens only as long as Congress allows them to. The purpose of the revocation of citizenship is to provide a mechanism to keep them out of the United States. This is is a form of “border control” – a “Cruz concern” as evidenced by the following @SenTedCruz tweet:

The article in the Huffington Post is remarkably well researched and provides a reasonable overview of the issue.

See for example:

Continue reading

State Department phasing out Form 4079 for renunciations of U.S. citizenship

On July 10, 2015 a I wrote about the “Major Updates To The Foreign Affairs Manual On U.S. Citizenship Renunciation Procedures“. That post included:

8. Form 4079 is NOT required for “renunciation cases” – but may be useful for the DOS…

While Form DS – 4079, Request for Determination of Possible Loss of United States Citizenship, is not standard or typically necessary for renunciation cases, where there is a question about intent it may prove useful.
Further, the DS -4079 may serve as a helpful tool for information gathering in appropriate cases regarding, for example, ties to the United States and the host country, or possible earlier commission of an expatriating act. In short, consular officers should not seek completion and signature of the DS – 4079 in renunciation cases as a matter of routine but only if pertinent as described above.

Hmmm…. It strikes me that renunciants should NOT seek to complete the form either. Clearly, nothing good can come from it. On the other hand, Form 4079 will continue to be vital for those claiming “relinquishments”. Clearly, the Department of State is beginning to separate “renunciations” from “relinquishments”.

An update …

At least the U.S. Consulates in Nassau and Paris have ceased using Form 4079. As of two weeks ago the Consulate in Bangkok  was still using it. It’s clear that the phaseout of Form 4079 for renunciations has begun. Form 4079 has been replaced with:


Renunciation of U.S. Citizenship Paris Information

Renunciation Questionnaire



Canada – Effective May 2016

Questionnaire from CanadaCLNInquiries




Q. Is a CLN necessary to relinquish US citizenship for tax purposes? A. It depends on the date of relinquishment

In a recent post, I discussed your “Taxabililty Freedom Day“. This is the day when you cease to be a taxable U.S. person. From that day you begin life free of the U.S. tax system. That post discussed the role of Form 8854 (noting that between June 3, 2004 and June 16, 2008 one had to file Form 8854 to no longer be a U.S. tax citizen). During the period between June 3, 2004 and June 16, 2008:

IF [you relinquished U.S. citizenship under the Immigration and Nationality Act)] THEN

[You continued to be treated as a “U.S. person” for tax purposes UNDER THE INTERNAL REVENUE CODE until you gave “notice” of your “relinquishment” to a government agency.] For this period part of the “notice” was filing Form 8854 with the Internal Revenue Service. In other words, there was no way to cease to be a “U.S. person” for tax purposes until you had notified the IRS.

In order to STOP being a “U.S. citizen for tax purposes” Form 8854 had to be filed with the IRS. Without filing Form 8854, you simply continued to be treated as a “U.S. citizen” for tax purposes.

The purpose of this post is to discuss the relation between the U.S. Certificate of Loss of Nationality (“CLN”) and loss of U.S. citizenship for tax purposes. This is an anxiety inducing and  confusing area. If you don’t want to read the analysis go straight to the bottom which provides the following answer to the question:

Is a CLN required in order to cease to be a U.S. citizen for either immigration or tax purposes?

Putting it all together – is a CLN necessary for relinquishment of U.S. citizenship?

  1. Prior to June 3, 2004 – NO for either immigration or tax purposes
  2. June 3, 2004 – June 16, 2008 – NO for either immigration or tax purposes.
  3. After June 16, 2008 – No for immigration purposes – Yes for tax purposes. A CLN  is necessary as a confirmation of having met the “notice requirement” to end U.S. citizenship for tax purposes.

Therefore, a CLN (for practical purposes) is necessary for relinquishment of U.S. citizenship, for tax purposes,  for expatriating acts after June 16, 2008.

And finally, a disclaimer …

These issues are complex. They are not well understood. There is some disagreement in the legal and accounting professions about these issues. I am not your lawyer. Nothing on this site is  legal advice. Get yourself competent counsel.

The rest of the post is explanation which is tedious and technical. You are welcome to it if you want.




The above tweet references the following insightful comment at the Isaac Brock Society.

The comment appeared on a post discussing the new $2350 fee that applies to (non-renunciation) “relinquishments” of U.S. citizenship. Those who are entitled to “back dated” relinquishments should still attempt to seek “non-renunciation relinquishments“.

@Eido, @Allison Christians, You (Eido) state “they are now charging the same amount of money for relinquishing U.S. nationality as they are for renouncing it” and “This means that it costs ALL American nationals thousands of dollars to change their nationality.”

Let me punch some holes in what you wrote as it will improve the arguments that we from the “Borg Collective” will make.

I have argued on this board that a CLN is NOT a requirement to lose ones US Nationality if an appropriate action was taken in accordance with 8 US Code. I relinquished a decade ago, do not have a CLN but do have documentation from the US Government recognizing my relinquishment and that I am no longer a USC. That said, I do believe a CLN can be a pretty handy piece of paper to have in ones pocket!!

I would argue that this regulation further supports my argument that a CLN is not in fact required to have lost US Citizenship hence the reason I believe the above quotes by the author are incorrect.

The State Department is now acutely aware of the Expatriation Act 1868 and cites the act in 7 FAM 1200, “That any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government.”

So how do you complete the circle between the left hand and the right hand? It is very clear that charging $2,350 to relinquish ones USC clearly runs foul to the Expatriation Act 1868 which the State Department clearly acknowledges!!

What is State charging for? They are not charging for “relinquishing” they are charging for “Documentation for Loss of Nationality.” They are charging those persons that want the State Department to issue them a piece of paper just as they charge for issuing an affidavit or notarial service.

They also state “In the past, individuals seldom requested Certificates of Loss of Nationality from the Department to document relinquishment.”

This is important for several reasons. First, it highlights in writing for those giving an FI a reasonable explanation as to why they do not have a CLN is simply that prior to the date of this notice “individuals seldom requested Certificates of Loss of Nationality.”

Second, it is not a fee for the act of relinquishment rather it is a fee to “document” same. There is a major difference between an action and documenting said action.

Now here is where Allison is on to something in stating “certainly relative to resisting the tax jurisdiction.”

I think Allison understands my above argument or if not will understand it now, but a CLN is a requirement dependent on relinquishment date to escape “tax jurisdiction.”

Effectively the IRS is now requiring the payment of an administrative fee of $2,350, circuitously through State, in order for a person to file a Form 8854 because a CLN date is required as part of that form!!

Is this action a good thing? Yes, I believe that the USG has provided another path forward for our cause. They have now confirmed in writing that CLNs were “seldom requested” which means most people that relinquished will NOT have a CLN!!! So when a FI asks a person for their CLN they can provide a reasonable explanation with their own written proof along with the State Departments own written word that such documents were “seldom requested.” The proof of not getting such a document now is the cost!!!

I do believe that State has perfected their argument on this matter but I also believe that they still need to be challenged based on the argument that this does violate the Expatriation Act 1868 and the UN Declaration. Such a challenge may force them to either back down on the fee which is good or it forces them to admit in stronger terms that the CLN is an “optional” document to have and that is good too! Arguing the case with State is a win/win for our cause.

The “bonus” in all this is that charging a fee to get a CLN, I think flies in the face with tax expatriation and Form 8854. I think if State lawyers had talked with Treasury lawyers they would not have gone down this route. It also muddies the water on the IGA agreements that were signed because many were signed when a CLN was free for to “document” a relinquishment.

OK Brockers fire back at me because iron strengthens iron. I know my argument sounds like a cheap lawyer talking but lessons were learned from the Summary Trial and the Bopp injunction. I believe that State was very careful in their choice of words.

Continue reading

OVDI Refund: On the one hand #Americansabroad should “beware” and on the other hand they should “be aware”


It’s been a week of “ups and downs”. As you know, the Republicans Overseas lawsuit was NOT successful in obtaining an injunction. The Alliance For Canadian Sovereignty was NOT successful in obtaining their own injunction in the Canadian lawsuit. The rulings in both lawsuits included judicial observations, and were supported by affidavits, that are likely to be helpful as these lawsuits continue. These “observations” are good news.

But, on the “coming into U.S. tax compliance front” I bring you some additional good and interesting news.

I am happy to report (with the permission of the taxpayer, although the specifics of the information continue to be privileged) that:

A U.S. citizen abroad, who had NOT been filing U.S. taxes and who entered the Offshore Voluntary Disclosure Program (“OVDI”) in August 2011 (do  you remember that month?), has just received a full refund for the amount of the penalties that she paid under “OVDI” (well in excess of $100,000). The payment of the “in lieu of” penalty” was made with the initial “OVDI” submission in 2011. She did not receive a refund of the taxes and interest (which were very minor amounts)  or her legal and accounting fees (approximately $50,000).

After entering “OVDI” in 2011, filing eight years of back tax returns,  and paying an “in lieu of” penalty of approximately $120,000, she transitioned into “Streamlined” (which first became available in 2012). The bottom line is that she received a refund of all penalties paid under “OVDI”.

My point in writing this post is to illustrate that “compliance issues” can have better and worse outcomes. (Obviously the outcome depends on the “facts and circumstances” of one’s specific situation.) Given that this taxpayer, “voluntarily” (on the advice of lawyers) entered “OVDI”, this strikes me as an extremely good outcome. Furthermore, this outcome could not have been anticipated at the point of entering “OVDI” in 2011. Therefore, it’s important to understand that the resolution to compliance (or non-compliance) issues is always in a state of evolution.

Note that in 2012, the “OVDI” program was renamed “OVDP” (which continues to exist).

This story suggest that:

On the one hand, you should BEWARE, but

On the other hand, you should BE AWARE.

Finally …

The current “OVDP” program is suitable ONLY for those who have been committed “willful” tax and compliance omissions. You should NOT enter “OVDP” without being advised by at least three lawyers (who don’t know each other).

John Richardson