SSR 73-16: Rescinded 1984

20 CFR 404.460 and 404.463

SSR 73-16

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.

. 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.

ecutive 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

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 (West Germany) Italy Greece Japan Ireland Netherlands (with respect to survivors benefits only) Israel Nicaragua 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

ffect 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.

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:

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:

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.

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

hereby 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.