updated 8:44 AM CET, Jan 28, 2023

January date set for oral arguments in accidental Americans' renunciation fee legal challenge

The U.S. District of Columbia Circuit Court judge in a long-running challenge by the Paris-based Association of Accidental Americans and 20 "accidental American" co-plaintiffs has agreed to hear "oral arguments" in the matter on Jan. 9, according to the advocacy organization and its lawyers.

During the hearing, the lawyers representing the AAA and its co-plaintiffs – Marc Zell and Noam Schreiber, of Zell & Associates International Advocates – will have 30 minutes to present their arguments to the court, including, they say, "whether U.S. citizens have a fundamental right to renounce their citizenship and, if so, does the exorbitant US$2,350 renunciation fee infringe on this right." No witnesses will be called.

Zell said he and the AAA welcomed the news of next month's court date, as they had been urging the court to act on the matter for some time, as the case had originally been filed in 2020.

As reported, they filed a "motion to expedite" the matter on Sept. 5, in the same U.S. District Court in which next month's hearing will take place.  

Zell told the American Expat Financial News Journal that he believed that the judge to whom the case had been assigned, Tanya S. Chutkan, had "a number of questions about the case that she wants to resolve" during next month's session, and added that he also saw the fact that she had arranged for the oral arguments session as a sign that "the case is being taken seriously – as it should be." 

The hearing is set to take place in Courtroom 9 of the District of Columbia's E. Barrett Prettyman Courthouse, pictured above, and will be open to the public as well as to journalists.

'Accidental Americans'

Accidental Americans is a relatively new term which is used to refer to persons deemed to be U.S. citizens because they happened to have been born in the U.S., but otherwise lived the rest of their lives elsewhere, as citizens of other countries. Some "accidentals" were born abroad but to at least one American parent, and are therefore  considered to be American.

The term began to be used after the  2010 U.S. tax evasion prevention law known as the Foreign Account Tax Compliance Act (FATCA) began to come into force, in 2014, and non-U.S. banks and financial institutions began having to report to the U.S. on their non-American account-holders.

Because the U.S. regards anyone born in the U.S. as a lifelong American citizen – including those citizens of other countries who happened to have been born in theStates, even to foreigners who were just passing through – many such individuals found themselves suddenly being told by their banks that they were, in fact, American, and for this reason, needed to provide the bank with their U.S. "tax identification number," and begin filing U.S. tax returns every year.

It was at this point that many accidental Americans sought to renounce their citizenships, which – until FATCA was introduced – had been free and relatively easy to do. Once FATCA came into force, however, it became much more difficult, according to the AAA and others calling for it to be made easier, and renouncing also now involves a basic fee of US$2,350.

Case originally brought in December 2020 

As reported, the plaintiffs, who are said to reside in some 13 different countries around the world, originally brought their complaint in December of 2020. In their complaint, they allege that the US$2,350 fee the U.S. currently charges those wishing to renounce their American citizenship violates the U.S. Constitution and international law, and that an individual's right to renounce their U.S. citizenship "is a fundamental, constitutional, natural and inherent right under the U.S. Constitution". The defendants are the "U.S. Department of State, et al".

The US$2,350 fee, the accidental Americans argue, is significantly higher than that charged by any other nation for the voluntary renunciation of citizenship, with many countries not charging any fee at all to expatriate.

This was also the case in the U.S. for more than 200 years, they point out, first changing in 2010, when it was set at US$450. This was increased fivefold in 2014, however, to the current US$2,350 (€2,275, £2,056), which was explained at the time as being necessary to cover the increased costs of handling renunciations.

In a statement the AAA and its co-plaintiffs issued in September, they noted that cross-motions for summary judgment in the case had been "currently pending" at that point for exactly a year.

"In the meantime," the accidental American co-plaintiffs said, in their Motion to Expedite, "the individual plaintiffs and the members of the organizational plaintiff [the AAA], all 'accidental Americans', have been prevented from renouncing their U.S. citizenship, due to the exorbitant renunciation fee."

One of several AAA legal challenges

Fabien croppedThe AAA's efforts in Washington, alongside its co-plaintiffs, is one of a number of similar legal actions the AAA has brought, mainly in Europe, since it was founded in 2017 by Fabien Lehagre, a California-born "accidental" whose French father brought him back to France at the age of 18 months. It now has around 1,400 members.

As reported, the AAA filed a complaint against France in 2019 with the European Commission, alleging that the country was infringing European data protection and privacy law, after having filed lawsuits earlier in the year against a number of online banks in France for discriminating against Franco-American dual nationals by refusing to open bank accounts for them because of their U.S. citizenship status.

The AAA also challenged the French government's implementation of FATCA, on behalf of the U.S., arguing that it violated the privacy of dual French/American citizens, but lost the case in July 2019, after France's Conseil d'Etat ruled that the law could stand and didn't need changing or to be scrapped.

Lehagre announced the AAA's plans to launch a crowd-funded legal challenge to the renunciation fee in August of 2020, and within less than a month, said the crowd-funding target of €20,000 had been met.

More information about the case at issue in next month's District Court hearing, as well as some of the AAA's other activities, may be found on the organization's website by clicking here.