McNeil v.USA: U.S. Passport Rejection For Delinquent Taxpayer Status

 

 

Via DC District Court/Civil Action No. 20-329 (JDB) :
This case has evolved out of a Freedom of Information Act (“FOIA”) request that the plaintiff, Robert McNeil, filed with the U.S. Department of State (“State”) seeking documentation substantiating State’s rejection of his passport application based on his apparent delinquent taxpayer status. After both parties moved for summary judgment on a FOIA claim that McNeil filed against State, McNeil requested and obtained several documents from the Internal Revenue Service (“IRS”) responsive to the request at issue in his case against State. Based on those documents, McNeil then amended his complaint with leave of the Court to add the IRS as a defendant and to add claims challenging the IRS’s determination and certification to State that he had “seriously delinquent tax debt.” The Court recently resolved cross-motions for summary judgment on McNeil’s FOIA claim in State’s favor. This ruling left only his claims against the IRS. The Government has now moved to dismiss the remainder of the amended complaint. For the reasons explained below, the Court will grant that motion.
Excerpt:

This case concerns State’s denial of McNeil’s passport application pursuant to § 7345 of the Internal Revenue Code. 26 U.S.C. § 7345. That provision governs the “[r]evocation or denial of [a] passport in case of certain tax delinquencies.” Id. Subsection (a) provides that “[i]f the Secretary [of the Treasury] receives certification by the Commissioner of [the IRS] that an individual has a seriously delinquent tax debt, the Secretary shall transmit such certification to the Secretary of State” to deny, revoke, or limit the debtor’s passport. Id. § 7345(a). Subsection (b) defines “seriously delinquent tax debt,” and subsection (c) explains how the reversal of a certification might come about. Id. § 7345(b)–(c). Subsection (d) requires the IRS Commissioner to “contemporaneously notify an individual of any certification under subsection (a), or any reversal of certification under subsection (c).” Id. § 7345(d). Subsection (e), which provides McNeil’s cause of action, concerns judicial review of certification and reads in full:

(1)In general. After the Commissioner notifies an individual under subsection (d), the taxpayer may bring a civil action against the United States in a district court of the United States, or against the Commissioner in the Tax Court, to determine whether the certification was erroneous or whether the Commissioner has failed to reverse the certification. For purposes of the preceding sentence, the court first acquiring jurisdiction over such an action shall have sole jurisdiction.

(2) Determination. If the court determines that such certification was erroneous, then the court may order the Secretary [of the Treasury] to notify the Secretary of State that such certification was erroneous.

[…]
Even if McNeil is able to prove that he never received these Notices, though, it would not  mean that the IRS’s certification was erroneous. As the Government observes, § 7345 does not say that a flawed or failed notice renders a certification erroneous. Reply at 3–4. Subsections (a) and (b) describe when the the Secretary of the Treasury must transmit certification to the Secretary of State and identify which debts qualify as “seriously delinquent tax debt.” 26 U.S.C. § 7345(a)–(b). Neither subsection says that proper notice is an element of or a prerequisite to a proper certification by the IRS of a seriously delinquent tax debt. In fact, subsection (d) says that notice to the taxpayer should be “contemporaneous[]” with certification to State, so it logically cannot be a prerequisite to that certification. 26 U.S.C. § 7345(d). Further, because subsection (e) includes no statute of limitations, there is no reason why improper notice under subsection (d) would prejudice a taxpayer who, like McNeil, does not learn about the certification of his debt in a sufficiently timely manner. See id. § 7345(e). The text of the statute suggests that the purpose of the notice requirement is to inform the debtor “in simple and nontechnical terms of the right to bring a civil action under subsection (e).”5 Id. Therefore, McNeil’s argument concerning the notice requirement fails because even if notice was not effected here, it would not mean that the  IRS’s certification of his debt to the State Department was erroneous.
[…]
The Court finds no support in § 7345 or anywhere else in the tax code for the notion that Congress wanted § 7345(e) to become a vehicle for challenging IRS procedures and tax assessments that cannot otherwise be challenged. Because the Court finds that Congress did not
intend for McNeil’s argument about the Forms 1040 and 1040A to be the basis for a claim under § 7345(e), and because he cannot argue that the IRS’s certification was erroneous based on a flawed notice, he has failed to state a claim upon which the Court could grant him relief under § 7345(e)(2).

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State/OIG Audits CA’s Official and Diplomatic Passport Records

 

 

Via State/OIG:
(U) Treasury Inspector General for Tax Administration Concerns

(U) In September 2020, OIG received a referral from the Treasury Inspector General for Tax Administration (TIGTA). According to the referral, in 2019, during an audit of the Internal Revenue Service’s (IRS) passport management and security controls,19 TIGTA requested from CA information associated with diplomatic and official passports issued to IRS employees and appointees for the last 20 years, as of March 31, 2019. Specifically, for each passport issued, TIGTA requested the applicant’s name, passport number, passport type, issuance date, and passport status (e.g., cancelled, lost, or stolen).

(U) According to TIGTA officials, TIGTA received three separate passport datasets from CA. However, TIGTA found that the data provided in each dataset were incomplete. For example, some passport records had blank issuance and expiration date fields. Furthermore, the data identified onlyfive passports that were issued in 2016 and indicated that no passports were issued to IRS employees from 2017 through 2019. However, IRS records indicated that more than 200 official or diplomatic passports were issued to employees between 2016 and 2019. Lastly, one dataset included only Department of Treasury employees and not IRS employees. According to TIGTA officials, CA officials could not explain why the database was providing incomplete data. Based on the missing records and data fields, TIGTA deemed CA’s information as unreliable for use in its audit.
[…]
(U) In response to TIGTA’s concerns about receiving incomplete data from CA, OIG reviewed the  847,880 official and diplomatic passport records provided to OIG by CA and found that none of  the passport records had blank issuance or expiration date fields. Furthermore, the records  showed that CA issued 652 official and diplomatic passports to IRS employees and their family  members from FY 2017 through FY 2019 as opposed to the data provided to TIGTA, which showed that no passports were issued to IRS employees from FY 2017 through FY 2019.

The Special Issuance Agency (SIA) did not review the data!

(U) When asked about TIGTA’s concerns, CA officials stated that CA’s Office of Consular Systems and Technology ran a query in TDIS using sponsor codes28 that are associated with IRS to obtain the data requested by TIGTA. CA’s Office of Legal Affairs and Law Enforcement Liaison and the  Office of Passport Integrity and Internal Controls reviewed the data before the data were  released to TIGTA. SIA did not review the data. If SIA employees had reviewed the data, they  would have recognized that it was incomplete. SIA employees would know, because of  reimbursement data, the number of passports issued to IRS employees. CA officials also stated  that, although there are processes in place for reviewing and clearing data prior to release to Federal customers, there is not a formal written policy or standard operating procedures. CA officials are formalizing procedures to address this deficiency.

(U) CA officials indicated that requests for passport information from other agencies are infrequent—there have been none since TIGTA’s request in 2019. However, it is important that CA have effective internal control activities in place to ensure that quality data are provided to other Government agencies. Internal control is a process effected by an entity’s management that provides reasonable assurance that the objectives of an entity will be achieved.29 Management should establish control activities through policies and procedures to achieve objectives.30 Because CA had not implemented effective internal control activities to ensure that the data provided to TIGTA in response to its request were properly reviewed and validated, it failed to meet its objective of delivering a high level of customer service and earning customer trust, which consequently impacted TIGTA’s ability to conduct an audit of passport management and security at the IRS. Although OIG acknowledges that CA is developing internal control activities and associated procedures to help ensure that the incident with TIGTA is not repeated, OIG is making the following recommendation and will track its implementation through the audit compliance process to confirm that the identified deficiency has been fully addressed.

(U) Prior Office of Inspector General Reports

(U) During this audit, OIG was alerted that a former Department of State employee had  allegedly not surrendered their diplomatic passport upon separation from the Department.  Department employees’ entitlement to an official or diplomatic passport, in most instances,  ends when they separate from the Department, and the passport must be surrendered for  cancellation.

(U) OIG found that CA had not electronically cancelled one of the former employee’s diplomatic  passports. Based on that information, OIG performed additional steps to determine whether CA  had cancelled other diplomatic or official passports once an employee had separated from the  Department of State. OIG found that CA had not electronically cancelled 57 of 134 (43 percent)  passports tested.5 In addition, of these 57 passports, 47 (82 percent) had not expired as of  February 1, 2021, meaning they could still be valid. One reason for the deficiencies identified is  that bureaus and offices did not always maintain proper accountability of passports and could  not confirm whether separating employees had surrendered their passports for cancellation.  OIG made one recommendation that is intended to improve the accountability of official and  diplomatic passports of separating employees. As of June 2021, OIG considers the  recommendation resolved, pending further action.

IRS to Individuals With Significant Tax Debts: Act Now to Avoid Passport Revocations

 

We’ve blogged previously about the potential revocation of passports for those with substantial tax debts to the Internal Revenue Service (see Officially On: Revocation/Denial of Passport For Americans With Seriously Delinquent Tax Debt;   IRS to Start Certifying Unpaid Taxes of $50K+ in Early 2017 For Revocation/Denial of US PassportsNew Law Authorizes Revocation or Denial of U.S. Passports to Certain Tax Delinquents).
Recently, the IRS again reminded individuals with significant tax debts to act promptly to avoid the revocation of their passports. See the sample IRS notice below or click this PDF file. Click here for a guide in understanding the IRS notice.

Click on image to see the “seriously delinquent” IRS notice

Via IRS:

Under the Fixing America’s Surface Transportation (FAST) Act, the IRS notifies the State Department (State) of taxpayers certified as owing a seriously delinquent tax debt, which is currently $52,000 or more. The law then requires State to deny their passport application or renewal. If a taxpayer currently has a valid passport, State may revoke the passport or limit a taxpayer’s ability to travel outside the United States.

When the IRS certifies a taxpayer to State as owing a seriously delinquent tax debt, the taxpayer receives a Notice CP508C from the IRS. The notice explains what steps the taxpayer needs to take to resolve the debt. IRS telephone assistors can help taxpayers resolve the debt. For example, they can help taxpayers set up a payment plan or make them aware of other payment options. Taxpayers should not delay because some resolutions take longer than others.

Don’t Delay!

It’s especially important for taxpayers with imminent travel plans who have had their passport applications denied by State to call the IRS promptly. The IRS can help taxpayers resolve their tax issues and expedite reversal of their certification to State. When expedited, the IRS can generally shorten the 30 days processing time by 14 to 21 days. For expedited reversal of their certification, taxpayers will need to inform the IRS that they have travel scheduled within 45 days or that they live abroad.

For expedited treatment, taxpayers must provide the following documents to the IRS:

      • Proof of travel. This can be a flight itinerary, hotel reservation, cruise ticket, international car insurance or other document showing location and approximate date of travel or time-sensitive need for a passport.
      • Copy of letter from State denying their passport application or revoking their passport. State has sole authority to issue, limit, deny or revoke a passport.

The IRS may ask State to exercise its authority to revoke a taxpayer’s passport. For example, the IRS may recommend revocation if the IRS had reversed a taxpayer’s certification because of their promise to pay, and they failed to pay. The IRS may also ask State to revoke a passport if the taxpayer could use offshore activities or interests to resolve their debt but chooses not to.

Before contacting State about revoking a taxpayer’s passport, the IRS will send Letter 6152, Notice of Intent to Request U.S. Department of State Revoke Your Passport, to the taxpayer to let them know  what the IRS intends to do and give them another opportunity to resolve their debts . Taxpayers must call the IRS within 30 days from the date of the letter. Generally, the IRS will not recommend revoking a taxpayer’s passport if the taxpayer is making a good-faith attempt to resolve their tax debts.

Ways to Resolve Tax Issues

There are several ways taxpayers can avoid having the IRS notify State of their seriously delinquent tax debt. They include the following:

      • Paying the tax debt in full,
      • Paying the tax debt timely under an approved installment agreement,
      • Paying the tax debt timely under an accepted offer in compromise,
      • Paying the tax debt timely under the terms of a settlement agreement with the Department of Justice,
      • Having a pending collection due process appeal with a levy, or
      • Having collection suspended because a taxpayer has made an innocent spouse election or requested innocent spouse relief.
The IRS says that taxpayers may ask for a payment plan with the IRS by filing Form 9465. Some taxpayers may also qualify for an offer in compromise, an agreement between a taxpayer and the IRS that settles the tax liability for less than the full amount owed.  The IRS notes that it will not certify a taxpayer as owing a seriously delinquent tax debt or will reverse the certification for a taxpayer under certain circumstances. For instance, taxpayers who are in bankruptcy, those who have been identified by the IRS as a victim of tax-related identity theft, or those who are located within a federally declared disaster area will not be certified for purposes of passport revocation.
There is also an exception for those serving in combat zones: “taxpayers serving in a combat zone who owe a seriously delinquent tax debt, the IRS postpones notifying the State Department of the delinquency and the taxpayer’s passport is not subject to denial during the time of service in a combat zone. Read in full here.

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Officially On: Revocation/Denial of Passport For Americans With Seriously Delinquent Tax Debt

 

The IRS has now posted a notice on its website indicating that it has began sending certifications of unpaid tax debt to the State Department in February 2018. Americans with seriously delinquent tax debt (totaling more than $51,000 (including interest and penalties) , per IRC § 7345 will be certified as such  to the State Department for action. The State Department reportedly will not issue passports to to individuals after receipt of certification from the IRS.

Back in December 2015, we first reported in this blog  about the “Fixing America’s Surface Transportation Act,” or “FAST Act” which includes Section 7345 that provides for the revocation or denial of U.S. passports to applicants with certain tax delinquencies considered ‘seriously delinquent tax debt’ –that is, a tax liability that has been assessed, which is greater than $50,000 and a notice of lien has been filed. That law was passed and the IRS was supposed to start certifying in early 2017 but that did not happen.

According to the recent IRS notice, upon receiving certification, the State Department shall deny the tax delinquent individual’s  passport application and/or may revoke his/her current passport. If the passport application is denied or the passport is revoked while said individual is overseas, the State Department may issue a limited validity passport but only for direct return to the United States. Read more here via IRS.gov

Note that the guidance also says that the State Department is held harmless in these matters and cannot be sued for any erroneous notification or failed decertification under IRC § 7345.  Affected individuals can file suit in the U.S. Tax Court or a U.S. District Court to have the court determine whether the certification is erroneous or the IRS failed to reverse the certification when it was required to do so. “If the court determines the certification is erroneous or should be reversed, it can order the IRS to notify the State Department that the certification was in error.”

The State Department’s statement on this issue is available here with IRS contact details.

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IRS to Start Certifying Unpaid Taxes of $50K+ in Early 2017 For Revocation/Denial of US Passports

Posted: 1:16 am  ET
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In December 2015, we reported in this blog  about the “Fixing America’s Surface Transportation Act,” or “FAST Act.” One item included in the FAST Act, which had been signed into law, affects the State Department and the traveling American public. Section 7345 provides for the revocation or denial of U.S. passports to applicants with certain tax delinquencies considered ‘seriously delinquent tax debt’ –that is, a tax liability that has been assessed, which is greater than $50,000 and a notice of lien has been filed. (see New Law Authorizes Revocation or Denial of U.S. Passports to Certain Tax Delinquents).

A recent IRS notice says that the agency has not yet started certifying tax debt to the State Department but that such certifications will begin in early 2017. The website here currently provides information “for informational purposes only” but will be updated to indicate when the process has been implemented. Excerpt:

If you have seriously delinquent tax debt, IRC § 7345 authorizes the IRS to certify that to the State Department. The department generally will not issue or renew a passport to you after receiving certification from the IRS.

Upon receiving certification, the State Department may revoke your passport. If the department decides to revoke it, prior to revocation, the department may limit your passport to return travel to the U.S.

Certification Of Individuals With Seriously Delinquent Tax Debt

Seriously delinquent tax debt is an individual’s unpaid, legally enforceable federal tax debt totaling more than $50,000* (including interest and penalties) for which a:

–Notice of federal tax lien has been filed and all administrative remedies under IRC § 6320 have lapsed or been exhausted or

–Levy has been issued

Some tax debt is not included in determining seriously delinquent tax debt even if it meets the above criteria. It includes tax debt:

–Being paid in a timely manner under  an installment agreement entered into with the IRS

–Being paid in a timely manner under an offer in compromise accepted by the IRS or a settlement agreement entered into with the Justice Department

–For which a collection due process hearing is timely requested in connection with a levy to collect the debt

–For which collection has been suspended because a request for innocent spouse relief under IRC § 6015 has been made

Before denying a passport, the State Department will hold your application for 90 days to allow you to:

–Resolve any erroneous certification issues

–Make full payment of the tax debt

–Enter into a satisfactory payment alternative with the IRS

There is no grace period for resolving the debt before the State Department revokes a passport.

Read more here: https://www.irs.gov/businesses/small-businesses-self-employed/revocation-or-denial-of-passport-in-case-of-certain-unpaid-taxes.

Note that the passport denial for individuals who owe more than $2500 in past-due child support, based on a certification by the responsible State child-support agency to the Department of Health and Human Services (HHS) has been challenged and upheld in two cases before Federal courts: Eunique v. Powell, 281 F.3d 940, 2002 (9th Cir. Cal. 2002 – statute does not violate Fifth Amendment freedom to travel internationally); Weinstein v. Albright, 261 F.3d 127; 2001 (2nd Cir. 2001 – statutory and regulatory scheme comports with due process and equal protection).

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Renunciation of U.S. Citizenship May Not Necessarily Keep the Tax Man Away

Posted: 4:08 am EDT
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Via MainSt:

Last year, 4,279 U.S. citizens ended their long-term U.S. residency, according to the Treasury Department. That’s up 25.3% from the 3,415 individuals who shed their U.S. citizenship in 2014 and just adds to the 10,693 total who dropped their citizenship between 2013 and 2015.
[…]
Passed in 2010 as a means of cracking down on tax dodgers, FATCA implemented rigid reporting rules for overseas banks and investment firms that hold the assets of U.S. citizens. It also imposes similarly strict rules on U.S. citizens who hold money in foreign accounts. Because the more underhanded elements of U.S. business made a habit of using accounts in Switzerland, the Cayman Islands and elsewhere to shield taxable income from the U.S. government, FATCA uses huge penalties to drop the hammer on those who won’t comply.

Read more below:

Renunciation of U.S. citizenship may not necessarily keep the Internal Revenue Service away. Last month, the Justice Department announced that a former U.S. citizen pleaded guilty to tax fraud related  to his Swiss financial account.  The DOJ announcement does not mention the Foreign Account Tax Compliance Act (FATCA) but it says that in 2012, the individual who has resided in Switzerland since 2007, went to the U.S. Embassy in Bratislava, Slovakia, to renounce his U.S. citizenship and informed the U.S. Department of State that he had acquired the nationality of St. Kitts and Nevis by virtue of naturalization. Below is part of the DOJ announcement:

Former U.S. Citizen Pleads Guilty to Tax Fraud Related to Swiss Financial Account

Used Hong Kong Entity and Foreign Accounts in Switzerland, Monaco and Singapore to Conceal Funds

A former U.S. citizen residing in Switzerland pleaded guilty today to one count of filing a false income tax return, announced Acting Assistant Attorney General Caroline D. Ciraolo of the Justice Department’s Tax Division and U.S. Attorney Dana J. Boente of the Eastern District of Virginia.

“U.S. taxpayers have been given ample opportunity to come forward, disclose their secret foreign accounts, and come into compliance,” said Acting Assistant Attorney General Ciraolo.  “Those individuals and entities who rolled the dice in the hope of remaining anonymous are facing the consequences.  The Tax Division remains committed to investigating and prosecuting individual taxpayers with undeclared foreign financial accounts, as well as the financial institutions, bankers, financial advisors and other professionals who facilitate the concealment of income and assets offshore.  And as today’s guilty plea clearly indicates, the department’s reach is well beyond Switzerland.”

According to court documents, in 2006, Albert Cambata, 61, established Dragonflyer Ltd., a Hong Kong corporate entity, with the assistance of a Swiss banker and a Swiss attorney.  Days later, he opened a financial account at Swiss Bank 1 in the name of Dragonflyer.  Although he was not listed on the opening documents as a director or an authorized signatory, Cambata was identified on another bank document as the beneficial owner of the Dragonflyer account.  That same year, Cambata received $12 million from Hummingbird Holdings Ltd., a Belizean company.  The $12 million originated from a Panamanian aviation management company called Cambata Aviation S.A. and was deposited to the Dragonflyer bank account at Swiss Bank 1 in November 2006.

“IRS Criminal Investigation will continue to pursue those who do not pay the taxes they owe to the United States,” said Special Agent in Charge Thomas Jankowski of the Internal Revenue Service-Criminal Investigation, Washington, D.C. Field Office.  “Today’s plea is a reminder that we are committed to following the money trail across the globe and will not be deterred by the use of sophisticated international financial transactions that hide the real ownership of income taxable by the United States.”

On his 2007 and 2008 federal income tax returns, Cambata failed to report interest income earned on his Swiss financial account in the amounts of $77,298 and $206,408, respectively.  In April 2008, Cambata caused the Swiss attorney to request that Swiss Bank 1 send five million Euros from the Swiss financial account to an account Cambata controlled at the Monaco branch of Swiss Bank 3.  In June 2008, Cambata closed his financial account with Swiss Bank 1 in the name of Dragonflyer and moved the funds to an account he controlled at the Singapore branch of Swiss Bank 2.

In 2012, Cambata, who has lived in Switzerland since 2007, went to the U.S. Embassy in Bratislava, Slovakia, to renounce his U.S. citizenship and informed the U.S. Department of State that he had acquired the nationality of St. Kitts and Nevis by virtue of naturalization.

U.S. District Judge Claude Hilton of the Eastern District of Virginia set sentencing for April 15.  Cambata faces a statutory maximum sentence of three years in prison and a fine of up to $250,000.  As part of his plea agreement, Cambata agreed to pay $84,849 in restitution to the Internal Revenue Service (IRS).

Additional information about the Tax Division and its enforcement efforts may be found on the division’s website.

FATCA was enacted in 2010 by Congress to target non-compliance by U.S. taxpayers using foreign accounts. FATCA requires foreign financial institutions (FFIs) to report to the IRS information about financial accounts held by U.S. taxpayers, or by foreign entities in which U.S. taxpayers hold a substantial ownership interest. For access to the regulations and administrative guidance related to FATCA and to learn about taxpayer obligations visit the Internal Revenue Service FATCA Page.

Click here for the list of countries where the United States has an agreement under FATCA.

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New Law Authorizes Revocation or Denial of U.S. Passports to Certain Tax Delinquents

Posted: 12:58 am EDT
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On December 4, 2015, President Obama signed into law the “Fixing America’s Surface Transportation Act,” or “FAST Act.” This is the first law enacted in over ten years that provides long-term funding certainty for surface transportation. DOT says that the FAST Act largely maintains current program structures and funding shares between highways and transit. It is a down-payment for building a 21st century transportation system, increasing funding by 11 percent over five years.  Read more here from the Department of Transportation.

Screen Shot 2015-12-27 at 9.50.33 PMThere is also one item included in the FAST Act that’s related to the State Department and the traveling American public. Section 7345 provides for the revocation or denial of U.S. passports to applicants with certain tax delinquencies considered ‘seriously delinquent tax debt’ –that is, a tax liability that has been assessed, which is greater than $50,000 and a notice of lien has been filed. To be clear, the Internal Revenue Service (IRS) is not actually able to revoke or deny any American taxpayer a passport for delinquent taxes. Revocation or denial or passports can only be done by the Department of State. It looks like the IRS Commissioner will need to make a certification of “seriously delinquent tax debt” to the Secretary of Treasury, who must then transmit the certification to the Secretary of State for the actual revocation. The new law provides for a humanitarian and emergency exception, and issuance of a limited passport for direct return to the United States.

This is similar to the arrangement on passport revocation with child support obligation enforcement.  The State Department works with the Health and Human Services on Child Support Arrearage.  Under the HHS passport denial program,  noncustodial parents certified by a state as having arrearages exceeding $2,500 are submitted by the Federal Office of Child Support Enforcement (OCSE) to the Department of State (DoS), which denies them U.S. passports upon application or the use of a passport service.

Via ‘‘Fixing America’s Surface Transportation Act’’ or the ‘‘FAST Act’’ (PDF):

SEC. 32101. REVOCATION OR DENIAL OF PASSPORT IN CASE OF CERTAIN UNPAID TAXES.

‘‘SEC. 7345. REVOCATION OR DENIAL OF PASSPORT IN CASE OF CERTAIN TAX DELINQUENCIES.

‘‘(a) IN GENERAL.—If the Secretary receives certification by the Commissioner of Internal Revenue that an individual has a seriously delinquent tax debt, the Secretary shall transmit such certification to the Secretary of State for action with respect to denial, revocation, or limitation of a passport pursuant to section 32101 of the FAST Act.

‘‘(b) SERIOUSLY DELINQUENT TAX DEBT.—

‘‘(1) IN GENERAL.—For purposes of this section, the term ‘seriously delinquent tax debt’ means an unpaid, legally enforceable Federal tax liability of an individual—

‘‘(A) which has been assessed,

‘‘(B) which is greater than $50,000, and

‘‘(C) with respect to which—

‘‘(i) a notice of lien has been filed pursuant to section 6323 and the administrative rights under section 6320 with respect to such filing have been exhausted or have lapsed, or

‘‘(ii) a levy is made pursuant to section 6331.

‘‘(2) EXCEPTIONS.—Such term shall not include—

‘‘(A) a debt that is being paid in a timely manner pursuant to an agreement to which the individual is party under section 6159 or 7122, and

‘‘(B) a debt with respect to which collection is suspended with respect to the individual—

‘‘(i) because a due process hearing under section 6330 is requested or pending, or

‘‘(ii) because an election under subsection (b) or (c) of section 6015 is made or relief under subsection (f) of such section is requested.

‘‘(c) REVERSAL OF CERTIFICATION.—

‘‘(1) IN GENERAL.—In the case of an individual with respect to whom the Commissioner makes a certification under subsection (a), the Commissioner shall notify the Secretary (and the Secretary shall subsequently notify the Secretary of State) if such certification is found to be erroneous or if the debt with respect to such certification is fully satisfied or ceases to be a seriously delinquent tax debt by reason of subsection (b)(2).

[…]

(e) AUTHORITY TO DENY OR REVOKE PASSPORT.—

(1) DENIAL.—

(A) IN GENERAL.—Except as provided under subparagraph (B), upon receiving a certification described in section 7345 of the Internal Revenue Code of 1986 from the Secretary of the Treasury, the Secretary of State shall not issue a passport to any individual who has a seriously delinquent tax debt described in such section.

(B) EMERGENCY AND HUMANITARIAN SITUATIONS.—Not- withstanding subparagraph (A), the Secretary of State may issue a passport, in emergency circumstances or for humanitarian reasons, to an individual described in such subparagraph.

(2) REVOCATION.—

(A) IN GENERAL.—The Secretary of State may revoke a passport previously issued to any individual described in paragraph (1)(A).

(B) LIMITATION FOR RETURN TO UNITED STATES.—If the Secretary of State decides to revoke a passport under subparagraph (A), the Secretary of State, before revocation, may—

(i) limit a previously issued passport only for return travel to the United States; or

(ii) issue a limited passport that only permits return travel to the United States.

(3) HOLD HARMLESS.—The Secretary of the Treasury, the Secretary of State, and any of their designees shall not be liable to an individual for any action with respect to a certification by the Commissioner of Internal Revenue under section 7345 of the Internal Revenue Code of 1986.

According to the WSJ, the Treasury Inspector General for Tax Administration, or Tigta, a watchdog agency, found that the IRS sent 855,000 notices to U.S. citizens abroad in 2014.

Treasury OIG notes that as of May 2014, the State Department estimated that approximately 7.6 million U.S. citizens live in a foreign country. It also reports this:

Even though the IRS sent approximately 855,000 notices and letters to U.S. taxpayers living in other countries during Calendar Year 2014, it cannot determine taxpayer response rates.  The lack of data on response rates for international taxpayers is problematic because this information is needed to determine the effectiveness of international correspondence on increasing taxpayer compliance and to make program improvements.

7 FAM 1380 which provides guidance on passport denials, limitations, and revocations is unfortunately behind the firewall so we are unable to see the specific updates in the Foreign Affairs Manual.

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Congress Seeks Information on Obamacare Coverage of Foreign Diplomats

— Domani Spero
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On October 29, 2014,  the House Foreign Affairs Committee Chairman Ed Royce (R-CA) and Ways and Means Committee Chairman Dave Camp (R-MI) wrote to IRS Commissioner John Koskinen seeking information after learning that foreign diplomats working in the United States are eligible for subsidized health coverage under the Affordable Care Act (ACA). Excerpt from their letter:

The Committees on Foreign Affairs and Ways and Means are investigating the extent to which these diplomats receive taxpayer-subsidized premium tax credits and cost-sharing subsidies under the Affordable Care Act.  We are seeking to determine how many such individuals participate in these programs and the total cost of such benefits.  As the agency principally responsible for administering health coverage tax credits, we request that you provide this information as soon as possible.

According to the Department of Health and Human Services, foreign diplomats holding “A” or “G” visas are eligible to participate in an array of medical programs administered by the federal government, including participation in Health Insurance Marketplaces governed by the Affordable Care Act (ACA). The Secretary of Health and Human Services has informed the Committee on Foreign Affairs that, if they meet basic ACA requirements, “a foreign diplomat could satisfy the statutory criteria to be eligible for a premium tax credit and cost-sharing reductions.”  The State Department has gone so far as to advertise to Foreign Missions, Permanent Missions to the United Nations, and the United Nations Secretariat that health care exchanges and “the benefits of the United States Affordable Care Act are available” to them.

The Foreign Affairs Committee has sought to determine the number of diplomats receiving coverage and subsides under the ACA.  Unfortunately, the State Department has informed the Foreign Affairs Committee that it “is not involved in the process through which foreign diplomats obtain government-funded benefits” and cannot provide that data.  The Department of Health and Human Services is likewise unable to provide this information.  Specifically, it noted that “[t]he Department does not collect data that identify whether individuals receiving services through our medical programs have diplomatic status.”  Similarly, “the Department does not collect data that identifies whether individuals receiving tax credits and/or cost sharing reductions have diplomatic status.”  Copies of these letters are attached for your reference.

We fully support the ability of foreign diplomats to purchase health care coverage in the United States.  We do not, however, believe that American taxpayers should subsidize these services.  To assist with our oversight of this matter, we ask that you please provide the following information as soon as possible, but not later than 5:00 p.m. on November 12, 2014.

  1. The total number, including from which country, of all non-immigrant, non-citizen “A” and “G” visa holders who are eligible for, and who have received, premium tax credits for qualified health plans under the Affordable Care Act;
  1. The total number, including from which country, of all non-immigrant, non-citizen “A” and “G” visa holders who are eligible for, and who have received, cost-sharing reductions for qualified health plans under the Affordable Care Act; and
  1. The total cost, and cost per individual, of all subsidies provided to the individuals above.

The signed letter and referenced attachments are available here.

Did you know about this? Do you know the rationale for this?  International relations is based on reciprocity, are our American diplomats eligible for healthcare subsidies in countries that avail of Obamacare subsidies here? Since the State Department is “is not involved in the process through which foreign diplomats obtain government-funded benefits,” in the United States, how is it supposed to press countries for reciprocal treatment on behalf of our diplomats?

According to a notice circulated (pdf) by the State Department in February 2014, individuals who are lawfully present in the United States, including U.S. citizens, permanent residents (green card holders), and “A” and “G” visa holders (principal or dependent), may purchase coverage through the health insurance marketplace/exchange. Additionally, the notice states that “Those Permanent Missions whose employees do not receive health and medical insurance benefits through the sending state, or Permanent Missions who have not entered into a health and medical insurance plan with a private insurance provider, may find the benefits provided by the ACA a cost effective way to insure their employees against high physician, hospital, and prescription drug costs.”

Note that A-1 – 2 visas are for foreign government diplomats and officials and their immediate family members while G-1 – 4 visas are for international organization officials and employees and their immediate family members.

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-02/20/14   OAS Note No. 07-B: OAS Affordable Care Act Guidance  [98 Kb]
-02/18/14   Notice: Town Hall Meeting – Health Insurance and the Affordable Care Act [280 Kb]
-11/26/13   USUN Diplomatic Note HC-115-(S)-13: UN Secretariat Affordable Care Act Guidance  [43 Kb]
-11/26/13   USUN Diplomatic Note HC-115-13: USUN Affordable Care Act Guidance  [42 Kb]
-11/21/13   Diplomatic Note 13-1117: Affordable Care Act Guidance  [33 Kb]

Couple in State Dept $53 Million Contract Fraud Gets 18-24 Months in Prison

— Domani Spero

In May and September 2013 we blogged about this case (See State Dept Contract Employee/Husband Indicted For Alleged Secret Scheme to Steer More Than $60 Million Contracts to Their Company and Ex-State Dept Contract Employee And Husband Plead Guilty To $53 Million Fraud. The Daily Caller broke this story in July 19, 2013.  The contractor, Kathleen McGrade was reportedly fired the day after.

Last week, the same couple at the center of this contracting fraud was sentenced by U.S. District Judge Liam O’Grady in the Eastern District of Virginia.  Kathleen D. McGrade, age 64, and Brian C. Collinsworth, age 47, of Stafford, Va., were sentenced to 24 and 18 months incarceration, respectively.  Given that each defendant faced a maximum penalty of 360 months or 30 years imprisonment, the 18-24 months incarceration is a bargain.

WaPo reports additional details during the sentencing:

In a lengthy speech before she was sentenced, McGrade offered various explanations for her misdeeds and told a federal judge in Alexandria that she was in court only because she had “been told that somehow the procurements that took place were illegal.”
[…]

As O’Grady handed down the two-year sentence — far short of the five years and 10 months that federal sentencing guidelines had called for as a minimum — he said McGrade had nearly persuaded him to impose a stiffer penalty.

“That was almost a delusional recitation of what has occurred here,” O’Grady said. “To convince yourself that it’s everybody else’s fault is astonishing, given the facts of this case.”

Via USDOJ:

Former State Department Contract Employee And Husband Sentenced For $53 Million Fraud | December 6, 2013

ALEXANDRIA, Va. – Kathleen D. McGrade, age 64, and Brian C. Collinsworth, age 47, of Stafford, Va., were sentenced today to 24 and 18 months incarceration, respectively, by U.S. District Judge Liam O’Grady in the Eastern District of Virginia for committing major fraud against the government, conspiracy to launder monetary instruments, and engaging in unlawful monetary transactions.

Dana J. Boente, Acting United States Attorney for the Eastern District of Virginia; Steve A. Linick, Inspector General for the Department of State; and Thomas J. Kelly, Special Agent in Charge of the Internal Revenue Service, Criminal Investigation Section, Washington, D.C. Field Office, made the announcement following the sentencing hearing.

According to Court records, McGrade and Collinsworth admitted that McGrade was a contract employee for the Department of State and performed the role of a contract specialist for an office that awarded construction contracts for work done at U.S. embassies worldwide.  Collinsworth worked at one of the companies that received contracts.  In 2006, the defendants married, but did not tell others at the Department of State.  The defendants started a company, the Sterling Royale Group, or SRG, with McGrade being the president and Collinsworth the vice-president and project manager.

In late 2007, McGrade caused a State Department contracting officer to sign a contract between the Department of State and SRG, when McGrade failed to disclose her role in SRG, her marriage, or that proper contracting competitive procedures had not been followed.  The contract made SRG eligible to receive task orders for work to be done at embassies and McGrade  began steering work to the company.  She acted as the contract negotiator between the Department of State engineers responsible for getting the jobs done, on the one hand, and Collinsworth, who was acting on behalf of SRG and the subcontractors, on the other.  Between 2008 and 2011, McGrade caused  Department of State contracting officers to sign 17 task orders awarding work worth almost $53 million.  In 2010, the defendants also lied about their marriage to investigators conducting McGrade’s background investigation regarding renewal of her security clearance.

In the summer of 2011 a news article disclosed the defendants’ marriage, and the Department of State terminated her employment.  The Department of State, however, had paid SRG about $39 million, and after the defendants had paid their subcontractors, they still had millions of dollars.  Among other things, they bought houses, a condominium, a yacht, a Lexus automobile, jewelry, and a Steinway piano with the fraudulently obtained money.  The defendants were ordered to forfeit all of those items in the amount of $7,864,795.

This case was investigated by the Department of State, Office of Inspector General, and the Global Illicit Financial Team, a task force led by the Criminal Investigation Section of the Internal Revenue Service.  Assistant United States Attorneys Jack Hanly and Mark D. Lytle are prosecuting the case on behalf of the United States.

A copy of this press release may be found on the website of the United States Attorney’s Office for the Eastern District of Virginia at http://www.justice.gov/usao/vae. Related court documents and information may be found on the website of the District Court for the Eastern District of Virginia at http://www.vaed.uscourts.gov or on https://pcl.uscourts.gov.

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