20 CFR 404.460 and 404.463
Where an Italian citizen living permanently outside the United States applied for and was paid retirement insurance benefits based on work he performed within the United States and thereafter acquired Australian citizenship, held, under provisions of section 202(t) of Social Security Act, claimant could not be paid benefits while outside the United States for more than 6 months, after he became a citizen of Australia, which has no social insurance or pension system, or treaty with the United States, qualifying under section 202(t)(2) of Act and where claimant did not qualify under another exception to section 202(t) of Act; though, under section 202(t)(3) of Act, he was entitled to receive such payment while a citizen of Italy, which has a treaty with the United States (in effect on August 1, 1956) which requires payment to its citizens outside the United States without regard to the duration of their residence abroad.
R, an Italian citizen born in 1904, became entitled to retirement insurance benefits commencing October 1967. He was last in the United States in September 1961, and had resided in this country only from July 19656 to September 1961, a period of less than ten years. During this time he earned a total of 25 quarters of coverage which were credited to his social security earnings record. In February 1972, R reported that effective December 15, 1971, he had become a citizen of Australia.
The issue presented is whether R's change of citizen ship from Italy to Australia requires a suspension of benefits under section 202(t) of the Social Security Act.
Social Security Ruling 71-31, Cumulative Bulletin 1971, page 44, with respect to the suspension of benefits of persons outside the United States, summarizes the provisions of section 202(t) of the Act. It also lists the countries which meet the requirements of section 202(t)(2)(A) and (B), i.e., those countries on which determinations have been made that qualifying social insurance or pension systems exist or do not exist.
Section 202(t) of the Act provides in effect that, subject to exceptions discussed below, monthly retirement, survivors, and disability insurance benefits may not be paid to an alien beneficiary for any month which occurs (1) after he has been outside the United States throughout six consecutive calendar months and (2) before the first calendar month throughout which he has been in the United States. For purposes of the preceding sentence, after an alien beneficiary is outside the United States for any period of thirty consecutive days, he is deemed to be "outside the United States" continuously, until he has returned to and remained in the United States for thirty consecutive days. Thus, an alien beneficiary who meets none of the exceptions must return to the United States either at least every thirty days, or for thirty consecutive days during each six-month period, in order to continue to draw benefits.
An alien beneficiary may, however, receive his benefits no matter how long he remains outside the United States, if section 202(t)(10) (relating to certain prohibitions imposed by U.S. Treasury Department on the mailing of checks to restricted countries, not here involved) is not applicable, and any one of the following exceptions is met:
The beneficiary was, or could upon filing application have become, entitled on the same earnings record to a monthly benefit for December 1956, under Section 202 of the Act; or
The worker on whose earnings record the benefit is based had been in service covered by the Railroad Retirement Act which was treated as employment covered by the Social Security Act pursuant to Section 5(k)(1) of the Railroad Retirement Act; or
The beneficiary is outside the United States while in the active military or naval service of the United States; or
The beneficiary is entitled as a survivor on the earnings record of a worker who either (1) died while in the military service of the United States or (2) died as the result of a disease or injury incurred or aggravated in the military service of the United States, and he was discharged or released from such service under conditions other than dishonorable; or
The withholding of benefits would be contrary to an existing treaty obligation in effect on August 1, 1956, between the United States and the country of which the beneficiary is a citizen.
The Secretary has determined that the Treaties of Friendship, Commerce, and Navigation between the United States and the following eight countries constitute "treaty obligations" within the meaning of exception (E) above:
Germany, Federal Republic of
Netherlands (with respect to
survivors benefits only)
The effect of this determination is that alien beneficiaries who are citizens of these countries will not be denied benefits for which they have qualified (subject to the limitations noted with respect to the Netherlands), regardless of the duration of their absence from the United States.
The beneficiary is a citizen of a country which the Secretary of Health, Education, and Welfare has found to have in effect a social insurance or pension system of general application which pays periodic benefits (or their actuarial equivalent) on account of old age, retirement, or death (sec. 202(t)(2)(A)) and such benefits are payable without restriction to otherwise eligible citizens of the United States while outside that country, regardless of the duration of their absence (sec. 202(t)(2)(B)); or
The worker on whose earnings record the benefit is based either resided in the United States for a period or periods of time aggregating 10 years or more or acquired at least 40 quarters of coverage under the Social Security Act before the month for which the benefit is payable.
Under section 202(t)(4) of the Act, however, exception (G) above does not apply for any month after June 30, 1968, to an alien outside the United States who is a citizen of a country which (1) has in effect a social insurance or pension system of general application which pay periodic old-age, retirement, or death benefits, but does not pay such benefits to otherwise qualified U.S. citizens while outside the country; or (2) has no social insurance or pension system of general application, if at any time within 5 years prior to January 1968 (or for the first month thereafter for which his benefits are subject to suspension because of absence from the U.S.), payments to individuals residing in that country were withheld by the Treasury Department under the Act of October 9, 1940 (31 U.S.C. 123). The Secretary has determined that Australia is a country which has no social insurance or pension system qualifying under Section 202(t)(2)(A).
So long as R retained his status as an Italian citizen, he came within exception (E) noted above, but as of December 1971, he lost this status when he became an Australian citizen. R does not meet any of the exceptions whereby a non-United States citizen can receive benefits while residing outside the United States. He left this country in 1961, after a residence of less than ten years and with less than forty quarters of coverage. He does not come within the military nor the railroad exceptions. He was not of retirement age in December 1956 and is not in the active military service of the United States. Accordingly, it is held that R's change of citizenship in December 1971 precludes further payment of retirement insurance benefits after December 1971, in accordance with the provisions of section 202(t) of the Act.
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