Annotated Bibliography

{organised by topic, alphabetically by author within topic}

Cabezas, Montano, 2016. “Reasons for Citizenship-Based Taxation”. Penn State Law Review, v121, p.101. pdf
Explores possible rationales for taxing based on citizenship, concluding that there is no obvious reason why nonresident citizens should be taxed. Discusses several case studies of Canadian resident US citizens derived from John Richardson's submission to the Senate Finance Committee.

Christians, Allison, 2017. “Human Rights at the Borders of Tax Sovereignty”. Available at SSRN: https://ssrn.com/abstract=2924925.
The first part of the paper explores the philosophical justifications of a government’s right to tax. These justifications are then examined with respect to citizenship taxation and the taxation of multinational corporations. The paper also contains an interesting comparison with California’s Worldwide Unitary Tax. Non-resident US taxpayers are not getting anywhere because they have no political power – not in the US where they’re spread across every congressional district – and not in their home countries where they are a small minority and similarly dispersed. Business interests have much more power – which is why so many countries passed the FATCA IGAs as quickly as they could. The conclusion seems to be that non-resident US taxpayers are more likely to find relief in the courts than from the legislature (either in the US or where they live).

A blog post about this article by Dan Shaviro at NYU makes the interesting observation:

To say you are a U.S. person, e.g., by reason of your citizenship, is to say: You are still one of us. We still care about you. But the direct practical consequence is that, if you’re still one of us and thus we still care about you, we respond by imposing continuing U.S. tax burdens on you – whereas if we don’t care about you we DON’T impose those burdens. Talk about tough love!

Kirsch, M. S. (2007). Taxing citizens in global economy. New York University Law Review 82(2), 443-530.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=931953
Covers the history of taxing based on citizenship in the U.S. Argues that globalization increases ties of non-resident citizens to the US and therefore strengthens the case for citizenship based taxation.

Pinto, Heitor D. 2017. “Constitutionality of Citizenship-Based Taxation.” Available at SSRN: https://ssrn.com/abstract=2895609.
Outlines legal arguments that Citizenship-Based Taxation violates the due process clause of the 5th Amendment and the equal protection clause of the 14th Amendment.

Rettig, Charles P. 2016. “Why the Ongoing Problem with FBAR Compliance?” Journal Of Tax Practice & Procedure, v18, no. 4: pp.37-43. pdf
This paper has lots of good statistics on compliance rates, etc. Cites IRS estimated annual tax gap of $458 billion. In 2011 over 80% of non-resident Americans who filed returns had zero US liability. Good quote: “More nonresidents could likely identify FATCA than could likely name the Vice-President of the United States.” Also includes an interesting discussion about voluntary compliance and trust.

Spiro, Peter J., Citizenship Overreach (April 20, 2017). Michigan Journal of International Law, Forthcoming; Temple University Legal Studies Research Paper No. 2017-12. Available at SSRN: https://ssrn.com/abstract=2956020
From abstract: “U.S. birthright citizenship and expatriation regimes may violate international norms, especially with respect to those “accidental Americans” who departed the United States as children.”

Harper, Peter. Taxation of foreign pensions. Tax Specialist, Vol. 15, No. 2, Oct 2011: 94-98. (Karen has a pdf)

Unfortunately, unless Art 18 is amended, the adverse tax impact US migration may have on a taxpayer’s superannuation benefits (such as those referred to above) may become a determining factor as to whether or not an executive migrates to the US.

Christians, Allison, 2016. “When Parliament Sleeps: Tax Treaty Practice in Canada” (May 17, 2016). 10 J. Parl. & Political L. 15. Available at SSRN / Additional data at Isaac Brock – while this paper is not analysis of the treaty itself, it discusses problems with the process of amending or re-negotiating a tax treaty based on Canadian experience.