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The Proposed Expatriation Tax—A Human Rights Violation?

Published online by Cambridge University Press:  27 February 2017

Detlev F. Vagts
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Extract

Income tax law and human rights law operate in quite separate worlds, but a proposal recently presented to Congress brings them together. The Clinton administration has advocated a tax on certain unrealized capital gains of expatriates and some of its opponents have claimed that it constitutes a violation of human rights law. They evoke the hardships visited on those who fled from Nazi Germany in the 1930s and from the Soviet Union and the German Democratic Republic more recently. They assert that a similar wrong would be inflicted by this proposed tax on those who surrender United States citizenship. The reaction of this writer is that of Justice Cardozo to the charge that twentieth-century administrative practices are “Star Chamber” procedures: “Historians may find hyperbole in the sanguinary simile.”

Type
Editorial Comment
Information
American Journal of International Law , Volume 89 , Issue 3 , July 1995 , pp. 578 - 580
Copyright
Copyright © American Society of International Law 1995

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References

1 Various versions have appeared in the congressional process, particularly S. 453 and H.R. 981, which was entitled “Tax Compliance Act of 1995.” It won Senate approval but was deleted in the House. As of April 1995, it seemed likely that the proposal would be reintroduced, with retroactive effect. See Tax Notes Int’l, Apr. 17, 1995, at 1387.

2 Perhaps the fullest statement of this is the one by Professor Robert F. Turner, available from Tax Notes International as 95 TNI 60–8.

3 Jones v. SEC, 298 U.S. 1, 33 (1936).

4 Compare Marshall Langer, Proposed U.S. Departure Tax on Expatriates, Tax Notes Int’l, Mar. 6, 1995, at 829, 834 with N.Y. Times, Apr. 2, 1995, §1, at 28.

5 For brief biographies of six individuals in this category, see N.Y. Times, Apr. 12, 1995, at A1.

6 Rev. Stat. §1999, 15 Stat. 223 (1868). For background to its enactment, see 4 Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure §100.03 [l][b] (1994).

7 Thus, Albrecht Randelzhofer, Nationality, in [Installment] 8 Encyclopedia of Public International Law 416, 420 (Rudolf Bernhardt ed., 1984), says: “International law contains no general rule limiting the possibility of renunciation of nationality. On the other hand it does not oblige States to provide this possibility in municipal law.”

8 Immigration and Nationality Act §349, 8 U.S.C. §1481 (1988).

9 Jolley v. INS, 441 F.2d 1245 (5th Cir.), cert, denied, 404 U.S. 946 (1971).

10 Blackmer v. United States, 284 U.S. 421 (1932).

11 18 U.S.C. §2381 (1988).

12 Vance v. Terrazas, 444 U.S. 252 (1980); Afroyim v. Rusk, 387 U.S. 253 (1967).

13 The right to enter a country does not, however, exist except in certain cases involving asylum seekers and, without that right to enter, the right to leave may be an empty one.

14 For reviews of the international law on the right to leave one’s country, see Hurst Hannum, The Right to Leave and Return in International Law and Practice (1987); Liberté de circulation des personnes en droit international (Maurice Flory & Rosalyn Higgins eds., 1988); Rainer Hofmann, Die Ausreise-freiheit nach Völkerrecht und staatlichem Recht (1988).

15 For surveys of national intrusions on the right to emigrate, see Hannum, supra note 14, at 71–117; and Hofmann, supra note 14, at 186–301. These surveys are based on a 1963 survey by Judge José Inglés and a further study by C. L. C. Mubanga-Chipoya in 1985 prepared for the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities. See Hannum, supra, at 13–15.

16 For a dramatic example of a restrictive action, see Haig v. Agee, 453 U.S. 280 (1981), sustaining revocation of Agee’s passport on the ground that he exposed CIA secrets.

17 19 U.S.C. §2432 (a)–(e). For commentary, see Robert Brumley, Jackson-Vanik: Hard Facts, Bad Law?, 8 B.U. Int’l L.J. 363 (1990). Later developments in the Soviet Union are described in George Ginsburgs, Perestroika and Emigration: Background to the 1991 Law on Entry into and Exit from the USSR of Soviet Citizens, 18 Rev. Cent. & E. Eur. L. 401 (1992).

18 Hofmann, supra note 14, at 179–80.

19 Hannum, supra note 14, at 114–16.

20 This is because the act of leaving the United States, coupled with an intent to change residence, would trigger the acceleration of tax on the alien’s gains.

21 The author furnished an opinion to the Treasury Department, at its request, to the effect that the proposal did not represent a human rights violation. It can be retrieved electronically as 95 TNI 60–14.