General Counsel Memorandum 36736, 05/19/1976, IRC Sec(s). 1 
------------------------------------------------------------------------

UIL No. 0001.01-00; 2001.00-00; 7805.01-01 

Headnote: 

Reference(s): Code Sec. 1; Code Sec. 2001; Code Sec. 7805; 

Full Text: 

CC:I-348-74 

Br4:MBWeinberg 

May 19, 1976 

Memorandum to: 

JOHN L. WITHERS 

Assistant Commissioner (Technical) 

Attention: Director, Individual Tax Division 

This case *** raises an issue as to whether a native-born American woman lost her citizenship by marrying a British subject and moving with him to England in a year prior to 1907. 

Decedent was born a United States citizen in *** decedent married *** a British subject and left the United States to reside with *** in England. *** decedent never remarried. After the death of *** decedent traveled the world and for the *** of her life resided in *** . During *** decedent resided in the United States under a *** Decedent always filed her U.S. income tax returns as a nonresident alien. Decedent never formally renounced her United States citizenship. She died prior to 1976. 

The Service determined that the decedent was a United States citizen at her death and notified her estate of a deficiency based upon its liability for Federal estate tax. The estate has petitioned the Tax Court, and we must determine whether the decedent is to be treated as a United States citizen on the date of her death. 

Rev. Rul. 75-357, 1975-34 I.R.B. 8, considers the status of a native-born American woman who married a British subject in 1910. The ruling states that under section 3 of the Expatriation Act of 1907 (the 1907 Act), the taxpayer lost her United States citizenship upon her marriage. The taxpayer died in 1974. Rocha v. Immigration and Naturalization Service, 450 F.2d 946 (1st Cir. 1971) declared the relevant portion of the 1907 Act unconstitutional, basing this conclusion on Afroyim v. Rusk, 387 U.S. 253 (1967). Rev. Rul. 75-357 concludes that the taxpayer described therein is, and has been since birth, a United States citizen for purposes of the Federal income, estate and gift taxes. This ruling also extends Code ¤ 7805(b) relief, declaring, in part, that individuals who lost their citizenship by operation of the 1907 Act and who die prior to January 1, 1976 are not United States citizens at their date of death unless they affirmatively exercised a specific right of citizenship after their "expatriating" act. See also  Rev. Rul. 70-506, 1970-2 C.B. 1. 

The present case is almost identical to that considered in  Rev. Rul. 75-357, except that here the marriage occurred before the 1907 Act became effective. Under an Anglo-American "Covenant on Naturalization" then in effect, the result would be the same as that reached under the 1907 Act; decedent became a British subject by operation of British law [Ruckgaber v. Moore, 104 F. 947 (E.D. N.Y. 1900) aff'd per curiam , 114 F. 1020 (2d Cir. 1902)] and under the Covenant was stripped of her United States citizenship. See, United States v. Reid, 73 F.2d 153, (9th Cir. 1934). Court opinions also indicate that under the law as it stood prior to the 1907 Act, *** citizenship was forfeited by her actions. Ruckgaber v. Moore, supra; see, In re Wright, 19 F. Supp. 224 (E.D. Pa. 1937); contra, Petition of Zogbaum, 32 F.2d 911 (D.S.D. 1929). Since both the Covenant of Naturalization and those decisions incorporate a standard for expatriation almost identical to that of the 1907 Act, we believe they, too, are probably unconstitutional. See, Reid v. Covert, 354 U.S. 1 (1955). It is, therefore, quite possible that *** was a United States citizen at *** death. 

We wish to know whether the relief granted by Rev. Rul. 75-357 under Code ¤ 7805(b) was intended to extend to the present case. Pendency of this case in the Tax Court has imposed severe time constraints upon us. We would appreciate your giving this matter immediate attention and responding to us as soon as possible. 

MEADE WHITAKER 

Chief Counsel 

By: 

RICHARD B. TREANOR 

Chief, Branch No. 4 

Interpretative Division 

see also:
revrul75-357
PLR8138071
TAM7605250090A