Revenue Ruling 92-109
Revenue Ruling 92-109
Rev. Rul. 92-109; 1992-2 C.B. 3; 1992 IRB LEXIS 642; 1992-52 I.R.B. 5
July 1992
SUBJECT MATTER: – Tax Imposed
SUMMARY:
Regarding the taxation of former and reinstated U.S. citizens, it was determined that individuals who lost their U.S. citizenship and then had it retroactively restored before January 1, 1993, will not be held liable for federal income or gift taxes as U.S. citizens between the date they lost their citizenship and the beginning of the taxable year in which the citizenship was restored. Taxpayers who lost their U.S. citizenship were not taxable as U.S. citizens, and they are taxable under section 7701(b)(1)(B) if nonresident aliens or under section 7701(b)(1)(A) and section 1 if resident aliens. Taxpayers who were U.S. citizens by birth or naturalization were taxable under sections 1 and 2501 of the Code; however if they failed to file returns based on a reasonable belief that they had lost their citizenship, special consideration from the IRS could be granted.
APPLICABLE SECTIONS:
Tax Imposed: Income tax on individuals. (Also Sections 871, 877, 2501, 2511, 6012, 6019, 6159, 6501, 7122, 7701, 7805, 1.871-1, 1.6012-1, 25.2501-1, 301.7805-1.)
TEXT:
Individual lost U.S. citizenship; subsequently citizenship retroactively restored. Guidance is provided to several categories of individuals who have failed to file past years’ federal income and gift tax returns, including individuals who lost their U.S. citizenship and subsequently had (or have) that citizenship retroactively restored.
ISSUES
Issue 1.
Whether, and to what extent, United States citizens who lost their United States citizenship and subsequently had that citizenship retroactively restored are liable for federal income and gift taxes as United States citizens.
Issue 2.
Whether, and to what extent, former United States citizens who are eligible to have their United States citizenship retroactively restored (but have not applied to do so) are liable for federal income and gift taxes as United States citizens.
Issue 3.
Whether, and to what extent, United States citizens who performed certain expatriating acts but did not lose their United States citizenship are liable for federal income and gift taxes as United States citizens.
Issue 4.
Whether, and to what extent, United States citizens residing outside the United States who did not perform expatriating acts and did not lose their United States citizenship are liable for federal income and gift taxes as United States citizens.
FACTS
Situation 1.
A is a United States citizen. On June 17, 1981, A performed an expatriating act, as defined in the Immigration and Nationality Act, section 349, 8 U.S.C. section 1481 (1976 & Supp. III 1977-1980)(amended 1981, 1986, and 1988). A’s expatriating act did not have for one of its principal purposes the avoidance of federal income, estate, or gift taxes.
A’s expatriating act was reported to the United States Department of State (“Department of State”). Following review, the Department of State determined that A had lost her United States citizenship, and, on November 16, 1981, approved a certificate of loss of nationality for A. In 1989 A applied to have her loss of United States citizenship administratively reviewed. The Department of State reviewed A’s loss of United States citizenship, and determined that A did not intend to relinquish her United States citizenship when she performed her expatriating act. As a result, in 1990 the Department of State vacated A’s certificate of loss of nationality, and retroactively restored her United States citizenship.
A filed federal income and gift tax returns for 1981, the year she lost her United States citizenship. A has not filed federal income or gift tax returns for 1982 through 1989, the period after the year she lost her United States citizenship and before the year it was retroactively restored. A computes her taxable income on the basis of a calendar year taxable year.
Situation 2.
B is a former United States citizen. On May 24, 1979, B performed an expatriating act, as defined in the Immigration and Nationality Act, section 349, 8 U.S.C. section 1481 (1976 & Supp. II 1977-1979) (amended 1981, 1986, and 1988). B’s expatriating act did not have for one of its principal purposes the avoidance of federal income, estate, or gift taxes.
B’s expatriating act was reported to the Department of State. Following review, the Department of State determined that B had lost his United States citizenship, and, on October 19, 1979, approved a certificate of loss of nationality for B.
B has not applied to have his loss of United States citizenship administratively reviewed. B filed federal income and gift tax returns for 1979, the year he lost his United States citizenship. B has not filed federal income or gift tax returns since the 1979 returns. B computes his taxable income on the basis of a calendar year taxable year.
Situation 3.
C is a United States citizen. On August 25, 1980, C performed an expatriating act, as defined in the Immigration and Nationality Act, section 349, 8 U.S.C. section 1481 (1976 & Supp. III 1977-1980) (amended 1981, 1986, and 1988). C’s expatriating act did not have for one of its principal purposes the avoidance of federal income, estate, or gift taxes.
C’s expatriating act was not reported to the Department of State. As a result, the Department of State did not review C’s citizenship status, did not determine that she had lost her United States citizenship, and did not approve a certificate of loss of nationality for C. C did not intend to relinquish her United States citizenship when she performed her expatriating act. As a result, if the Department of State had determined that C lost her United States citizenship, C would now be eligible to have her citizenship retroactively restored.
C filed federal income and gift tax returns for 1980, the year she performed the expatriating act. C has not filed federal income or gift tax returns since the 1980 returns. C computes her taxable income on the basis of a calendar year taxable year.
Situation 4.
D is a United States citizen who resides outside the United States. D has never performed an expatriating act, as defined in the Immigration and Nationality Act, section 349, 8 U.S.C. section 1481 (1988), and therefore the Department of State has never approved a certificate of loss of nationality for D. D has not filed federal income or gift tax returns during the period of his foreign residence.
LAW
Section 1 of the Internal Revenue Code imposes a tax on the taxable income of every individual. Section 441(a) of the Code provides that taxable income shall be computed on the basis of a taxpayer’s taxable year. In general, individuals compute their taxable income on the basis of a calendar year taxable year.
Sections 1.1-1(b) and 1.871-1(a) of the Income Tax Regulations provide that citizens of the United States, wherever resident, and resident alien individuals are taxable on income received from sources within and without the United States. Section 2(d) of the Code provides that in the case of a nonresident alien individual, the tax imposed by section 1 shall apply only as provided by section 871 or 877.
Section 1.1-1(c) of the income tax regulations provides that every person born or naturalized in the United States and subject to its jurisdiction is a citizen. For rules governing the loss of citizenship, section 1.1-1(c) refers to sections 349 to 357, inclusive, of the Immigration and Nationality Act, 8 U.S.C. sections 1481-1489 (1976) (sections 1482 and 1484-1487 repealed 1978) (section 1481 amended 1978, 1981, 1986, and 1988; section 1483 amended 1981, 1986, and 1988; section 1489 amended 1988).
Section 7701(b)(1)(A) of the Code provides that, for purposes of the Code (other than the estate and gift taxes), an alien individual shall be treated as a resident of the United States with respect to any calendar year if (and only if) the individual: (i) is a lawful permanent resident of the United States at any time during that year; (ii) meets the substantial presence test provided in section 7701(b)(3); or (iii) makes the election provided in section 7701(b)(4). Section 7701(b)(1)(B) provides that an individual is a nonresident alien if that individual is neither a citizen of the United States nor a resident of the United States within the meaning of section 7701(b)(1)(A).
Section 871 of the Code imposes a tax on certain income received by a nonresident alien individual. Section 877 imposes an alternative tax on certain income received by a nonresident alien individual who after March 8, 1965, and within the 10-year period immediately preceding the close of the taxable year lost United States citizenship, unless the loss of citizenship did not have for one of its principal purposes the avoidance of federal income, estate, or gift taxes, or resulted from the application of section 301 (b), 350, or 355 of the Immigration and Nationality Act, as amended, 8 U.S.C. section 1401 (b), 1482, or 1487 (1976)(repealed 1978). Section 877 is effective for taxable years beginning after December 31, 1966.
Section 2501 of the Code imposes a tax for each calendar year on the transfer of property by gift during the calendar year by any individual. For gifts made after December 31, 1970, and before January 1, 1982, the tax imposed by section 2501 is applicable for each calendar quarter. Section 2511 provides that in the case of a nonresident not a citizen of the United States the gift tax imposed by section 2501 shall apply to a transfer only if the property is situated within the United States.
Section 25.2501-1(b) of the Gift Tax Regulations provides that, for purposes of the gift tax, an individual is a United States resident if the individual’s domicile is in the United States at the time of the gift. All other individuals are nonresidents of the United States for purposes of the gift tax.
Section 2501(a)(2) of the Code provides that, except as provided in section 2501(a)(3), the gift tax imposed by section 2501 shall not apply to the transfer of intangible property by a nonresident not a citizen of the United States. Section 2501(a)(3) provides that the gift tax imposed by section 2501 shall apply to the transfer of intangible property by a nonresident not a citizen of the United States in the case of a donor who after March 8, 1965, and within the 10-year period ending with the date of transfer lost United States citizenship, unless the loss of citizenship did not have for one of its principal purposes the avoidance of federal income, estate, or gift taxes, or resulted from the application of section 301(b), 350, or 355 of the Immigration and Nationality Act, as amended, 8 U.S.C. section 1401(b), 1482, or 1487 (1976) (repealed 1978). Sections 2501(a)(2) and 2501(a)(3) are effective for transfers occurring on or after January 1, 1967.
Section 6012(a)(1) of the Code provides, with certain exceptions, that every individual who has gross income for the taxable year which equals or exceeds the exemption amount (as defined in section 151(d)) shall file a federal income tax return. Section 1.6012-1(b)(2)(ii)(b) and (c) of the income tax regulations provides that an individual who abandons United States citizenship or residence during the taxable year, and is not a citizen or resident of the United States on the last day of the taxable year, must file a Form 1040NR federal income tax return for that year (if the individual is otherwise required to make a return for the taxable year). This return must include a separate schedule that shows the income tax computation for that part of the taxable year when the individual was a citizen or resident of the United States. Section 6019 provides, with certain exceptions, that any individual who makes a transfer by gift in any calendar year shall file a federal gift tax return. For gifts made after December 31, 1970, and before January 1, 1982, the filing requirement imposed by section 6019 is applicable for each calendar quarter.
Section 6501(c)(3) of the Code provides that in the case of a failure to file a federal tax return, the tax may be assessed, or a proceeding in court for the collection of that tax may be begun without assessment, at any time. Internal Revenue Service Policy Statement P-5-133, IRM 1218 PS P-5-133 (Nov. 24, 1980), states that taxpayers failing to file tax returns due will be requested to prepare and file all due returns except in instances where there is an indication that the taxpayer’s failure to file the required return or returns was willful or if there is any other indication of fraud. If indications of willfulness or fraud exist, special procedures for handling those returns are followed. If indications of willfulness or fraud do not exist, the extent to which compliance for prior years will be enforced is determined by reference to several factors, including any special circumstances existing in the case of a particular taxpayer or class of taxpayers. Normally, application of these factors will result in enforcement of delinquency procedures for not more than six years.
Section 6159(a) of the Code authorizes the Internal Revenue Service to enter into written agreements with a taxpayer under which the taxpayer may satisfy a tax liability in installment payments. An installment agreement is considered when the Service determines that installment payments will facilitate collection of a tax liability.
Section 7122(a) of the Code authorizes the Internal Revenue Service to compromise any civil case arising under the internal revenue laws before the case is referred to the Department of Justice for prosecution or defense. Internal Revenue Service Policy Statement P-5-100, IRM 1218 PS P-5-100 (Jan. 30, 1992), states that the Service will accept an offer in compromise when it is unlikely that the tax liability can be collected in full and the amount offered reasonably reflects collection potential.
Internal Revenue Service District Directors administer the internal revenue laws and related statutes as they relate to persons residing within their districts. The Assistant Commissioner (International) administers the internal revenue laws and related statutes as they relate to United States citizens residing abroad and nonresident aliens deriving income from sources within the United States.
Section 349(a) of the Immigration and Nationality Act, 8 U.S.C. section 1481(a) (1988), provides that United States citizens shall lose their citizenship if they voluntarily perform certain acts with the intention of relinquishing United States citizenship. Section 358 of the Immigration and Nationality Act, 8 U.S.C. section 1501 (1988), and section 50.41 of Title 22 of the Code of Federal Regulations, 22 C.F.R. §50.41 (1991), provide that a diplomatic or consular officer of the United States shall prepare a certificate of loss of nationality whenever that officer has reason to believe that a United States citizen has lost United States citizenship. If the Department of State approves a certificate of loss of nationality, thereby determining that the individual lost United States citizenship, a copy of the certificate is issued to the affected individual. If a certificate of loss of nationality is not approved by the Department of State for an individual under section 358 of the Immigration and Nationality Act, that individual is not considered to have lost United States citizenship. When a certificate of loss of nationality is approved, the loss of United States citizenship is considered retroactively effective to the date of the expatriating act.
Prior to November 14, 1986, the Immigration and Nationality Act did not expressly state the requirement that an expatriating act be performed with the intention of relinquishing United States citizenship. See Immigration and Nationality Act, section 349, 8 U.S.C. section 1481 (1982) (amended 1986 and 1988). On November 14, 1986, the Immigration and Nationality Act was amended to expressly state this requirement. Immigration and Nationality Act Amendments of 1986, Pub. L. No. 99-653, section 18(a), 100 Stat. 3655, 3658 (1986). This amendment was made applicable to actions taken before, on, or after November 14, 1986. Immigration and Nationality Act Amendments of 1986, Pub. L. No. 99-653, section 23(g), as added by the Immigration Technical Corrections Act of 1988, Pub. L. No. 100-525, section 8(r), 102 Stat. 2609, 2619 (1988).
In accordance with this amendment, individuals who were determined by the Department of State to have previously lost United States citizenship may apply to the Department of State to have their citizenship status administratively reviewed. Pursuant to this review, the Department of State may determine that individuals did not intend to relinquish their United States citizenship when they performed expatriating acts. In these cases, the Department of State will vacate the individuals’ certificates of loss of nationality, and retroactively restore their United States citizenship. Individuals who have their United States citizenship retroactively restored are considered to have been United States citizens since birth or naturalization, and are taxable as United States citizens since birth or naturalization.
ANALYSIS AND HOLDINGS
The following analysis and holdings relate to the federal tax treatment of the individuals described in this revenue ruling. This revenue ruling does not affect an individual’s right to petition the Department of State for administrative review of that individual’s citizenship status at any time.
Situation 1.
Individuals who lost their United States citizenship and had (or have) it retroactively restored before January 1, 1993, will not be held liable for federal income taxes as United States citizens between the date they lost their United States citizenship and the beginning of the taxable year when their citizenship was (or is) restored, and will not be held liable for federal gift taxes as United States citizens between the date they lost their United States citizenship and January 1 of the calendar year when their citizenship was (or is) restored.
As a result, A is not liable for federal income or gift taxes as a United States citizen between June 17, 1981, the date she lost her United States citizenship, and December 31, 1989, the end of the year preceding the year in which her United States citizenship was retroactively restored. A is liable for federal income and gift taxes as a United States citizen for taxable years beginning on or after January 1, 1990, the year in which her United States citizenship was retroactively restored.
Situation 2.
B is not taxable as a United States citizen, and has not been taxable as a United States citizen since May 24, 1979, the date he lost his United States citizenship. B is considered an alien individual under the Code, either a nonresident alien under section 7701(b)(1)(B) or a resident alien under section 7701(b)(1)(A). If B qualifies as a nonresident alien, he is taxable under section 871. Alternatively, if B is considered a resident alien, he is taxable under section 1.
For purposes of the gift tax, B’s United States residency status is determined under section 25.2501-1(b) of the gift tax regulations. If B is considered a nonresident under section 25.2501-1(b), he is taxable under section 2511. If B is considered a resident under section 25.2501-1(b), he is taxable under section 2501.
B may apply to the Department of State to have his certificate of loss of nationality administratively reviewed. If B applies for this review, and if his certificate of loss of nationality is vacated, B’s United States citizenship will be retroactively restored.
Individuals who lost their United States citizenship and have it retroactively restored after December 31, 1992, will not be held liable for federal income taxes as United States citizens between the date they lost their United States citizenship and the beginning of their first taxable year beginning after December 31, 1992, and will not be held liable for federal gift taxes as United States citizens between the date they lost their United States citizenship and January 1, 1993.
As a result, if B has his United States citizenship retroactively restored after December 31, 1992, B will not be liable for federal income or gift taxes as a United States citizen between May 24, 1979, and December 31, 1992. B will be liable for federal income and gift taxes as a United States citizen for taxable years beginning on or after January 1, 1993.
Situation 3.
C is, and always has been since birth or naturalization, a United States citizen, taxable under sections 1 and 2501 of the Code. The Department of State never determined that C lost her United States citizenship, and never approved a certificate of loss of nationality for C. As a result, C never lost her United States citizenship. Therefore, C is not eligible for the relief granted in situations 1 and 2 of this revenue ruling.
Pursuant to policy statement P-5-133 the Internal Revenue Service has designated for special consideration individuals who did not file federal income and gift tax returns as United States citizens because they had a reasonable, good faith belief that they had lost their United States citizenship. These individuals performed expatriating acts (as defined in the Immigration and Nationality Act as in effect at the time the acts were committed) but were not determined by the Department of State to have lost United States citizenship, and certificates of loss of nationality were not approved on their behalf. As a result, these individuals did not lose their United States citizenship.
Furthermore, these individuals did not intend to relinquish their United States citizenship when they performed these acts. Under current law the acts these individuals performed are no longer considered expatriating, absent proof of intent to relinquish United States citizenship. As a result, if the Department of State had determined that these individuals lost their United States citizenship, these individuals would now be eligible to have their citizenship retroactively restored.
Pursuant to policy statement P-5-133, the Assistant Commissioner (International) and District Directors may grant relief similar to the relief granted in situations 1 and 2 of this revenue ruling. Among the circumstances that will be considered by the Assistant Commissioner (International) and District Directors when evaluating requests for relief from the individuals described in this situation 3 is whether they acted in a manner consistent with a good faith belief that they had lost United States citizenship by, among other things, not affirmatively exercising any rights of United States citizenship in the period when they did not file federal tax returns as United States citizens.
As a result, pursuant to policy statement P-5-133, C may apply to the Assistant Commissioner (International) or to the appropriate District Director for relief based on the particular circumstances of her case, and may be eligible for special consideration. Following review, the Assistant Commissioner (International) or the appropriate District Director may grant C relief similar to the relief granted in situations 1 and 2 of this revenue ruling. Decisions made by the Assistant Commissioner (International) and District Directors are not determinations of citizenship, and any relief granted by the Assistant Commissioner (International) or by a District Director only relates to federal taxes.
Situation 4.
D is, and always has been since birth or naturalization, a United States citizen, taxable under sections 1 and 2501 of the Code. D is not eligible for any relief from federal income or gift taxes based on this revenue ruling.
If extenuating circumstances prevented D from filing federal income and gift tax returns during the period of his foreign residence, D may apply to the Assistant Commissioner (International) and attempt to show that the extenuating circumstances justify relief under policy statement P-5-133. However, D is not eligible for any special consideration based on this revenue ruling. D may also attempt to show that he is eligible to settle his tax liabilities pursuant to an installment agreement or an offer in compromise. See sections 6159(a) and 7122(a) of the Code, and policy statement P-5-100. See also Internal Revenue Service News Releases IR-92-114 (Dec. 7, 1992) and IR-92-94 (Sept. 30, 1992)(concerning the Internal Revenue Service initiative to bring nonfiling taxpayers back into the federal tax system).
PROSPECTIVE APPLICATION
The relief granted by this revenue ruling to individuals who lost their United States citizenship and subsequently had (or have) it retroactively restored is based on the authority contained in section 7805(b) of the Code.
@Michael,
Yes, maybe settling up on the tax bill for the 10-year period may be the best solution — with late payment penalties and interest of course.
Ultimately that’s what the IRS wants — revenue. If, like other situations, there are paperwork failures, you deal with the paperwork and settle up on the tax liability.
Phil, I do enjoy a nice metaphor as much as the next fellow!
I assume your concern about 877 applies solely to persons who expatriated (reqlinquished citizenship) after the effective date of that provision. As for those who relinquished citizenship afterwards, I would think its enough that they may owe tax for the 10-year period thereafter, if they happened to have earned income of the kind described in 877. Shouldn’t that be sufficient to address the Government’s concerns?
@Michael,
Perhaps I should stop using phrases like “human sacrifice.” 🙂 Metaphors are two-edged swords. Oops.
I agree with the basic idea that if a CLN says the termination of citizenship is pre-2004, then that is what it should be.
The logical tax solution for that would be to throw the taxpayer into the Section 877 expatriation regime, and require the taxpayer to start the annual Form 8854 stuff that is required for 10 years under Section 877. Maybe you start the 10 year time period under Section 877 from the date that the IRS is notified.
JeffDTom:
I have a better idea. Perhaps someone (such as an appropriate committee of the American Bar Association) should ask the IRS to issue a ruling confirming that, where a person relinquished citizenship (under whatever the rules were, which I don’t pretend to understand) many years ago, but never received a CLN, and a CLN is ultimately issued (e.g., in 2012) with a pre-2004 effective date, the loss of citizenship for tax purposes is effective as of the pre-2004 date shown on the CLN. Notwithtanding Phil and others throwing around phrases like “crash-test dummy,” and “human sacrifice,” I’m not aware of any reason to believe the IRS disagrees with this position. Indeed, as noted above, I spoke with someone at the IRS (informally) who works in the area and she agreed.
Once again, are these sort of issues compatible with class-action (not in tax court I guess but in a district court– charging systematic discrimination for example). One plantiff might be a “human sacrifice” but hundreds or thousands? At the very least, such an action could result in restraining the IRS and perhaps result in a change of legislation and/or IRS policy to avoid a judgement. That is, if we believe that the courts are still impartial.
I think this issue is greatly overblown.
2004 is when the idea was first introduced that a person who had otherwise relinquished US citizenship could nevertheless continue to be treated as a US citizen for tax purposes until some “notice event” (my own, inarticulate term) took place. This new rule was set forth in former Code section 7701(n) and it is 100% clear that it was purely prospective in application. By it’s terms, the new rule was only effective for persons relinquishing citizenship post-enactment. Thus, for example, as of 12/31/07 it was perfectly clear that a person who properly relinquished US citizenship in the 1970s, 1980s, 1990s, for example, was (quite properly) “grandfathered” and not affected by section 7701(n) in any way.
In 2008, section 7701(n) was removed and the rule providing for a person relinquishing citizenship to continue to be treated as a US citizen for tax purposes, until some “notice event” occurred, was incorporated into then-new section 877A. While section 877A is worded very poorly in terms of its effective date, I (and several other specialists in the area with whom I discussed the issue) find it inconceivable that the provision was intended to take people who relinquished US citizenship many years prior to 2004, and who were quite intentionally grandfathered by 7701(n), and convert them many years after the fact into US citizens once again.
Even for the US, that would be outlandish (and this is said fully in the context of the many other notable events of the last several years). I note in particular that, if such an outlandish thing truly had been intended, there would have been some discussion of it in the legislative history — and yet there is none.
And, for what it’s worth, I spoke (informally) several weeks ago with someone at the IRS who is knowledgeable in the “expatriation” area, and she agreed with the above analysis.
While I acknowledge that the statute is drafted quite poorly, I think that upon reasoned analysis this is not a real issue.
If Phil or anyone else believes it is a real issue, I would be grateful if he or she could comment on the analysis above.
Tim, you’re right. This is a mess. The possibility of a mismatch between immigration law definitions of when you lost citizenship (e.g., by an expatriating act in 1998) and the tax law definitions of when you lost citizenship (not until the State Department issues a piece of paper) exists and is troublesome.
From the perspective of Congress, however, it doesn’t matter. This is a troublesome problem to a handful of people, none of whom will cast a vote in the next election. So I don’t expect it to be solved by Congress. This will be resolved in Court.
I need someone who is willing to be the human sacrifice (aka Plaintiff) in this litigation against the United States of America. 🙂 Any volunteers?
What makes Situation 3 most interesting is the following lines:
Furthermore, these individuals did not intend to relinquish their United States citizenship when they performed these acts. Under current law the acts these individuals performed are no longer considered expatriating, absent proof of intent to relinquish United States citizenship.
However, what about someone who did “intend” to relinquish their citizenship but has only notified the State Department in the present day. The State Department by issuing a back dated CLN is clearly recognizing the expatriating act as valid under current law however, it is still unclear what the tax law effects of that are and this revenue ruling doesn’t directly answer that(nor would be able to take into account any of the IRC changes in 1996, 2004, and 2008).
This is for commenter Tim, who asked whether this Revenue Ruling is still in good standing. According to Shepards, today, yes it is.