May 1, 2016: WE NEED MORE WITNESSES WILLING TO FILE AFFIDAVITS IN OUR CANADIAN FATCA IGA LAWSUIT:
There is something quintessentially American about chasing the whale. While FATCA harpooners rove the globe, their keen steel promises to take out countless ordinary fool “U.S. persons” as collateral damage. Grotesque governmental pursuit flounders through more dimensions than a bad science fiction novel.
Concepts of “residence” and “taxation” will never be the same again. Impacted individuals may amount to little more than froth on the tsunami. Even if their own wrecked lives inevitably stand front and center in their own perspectives.
The so-called sharing economy could be on the verge of dwarfing clunky old corporate inversions as a threat that zeroes in on plodding and entitled behemoths like the U.S.A. If nothing else, watching techno-payback inflicted on a failing state may offer at least the respite of schadenfreude.
In the five years since these businesses [Airbnb, Uber, etc.] began their spiraling growth, some cities and states around the globe have fought hard to make them play by the same rules as traditional hotels or taxis and collect various local taxes — often as not, they’ve lost. As the new breed of companies moves toward profitability, transforming larger chunks of the economy, policy experts say the battle is likely to shift to the national level, where billions of dollars a year in corporate taxes could be at risk. … “These companies are the future,” says Stephen Shay, a former top international tax lawyer at the U.S. Department of the Treasury, now teaching at Harvard. “The nature of their business and the structure of the companies can allow them to essentially keep all of their profits out of the U.S.”
You can read the online version of the rest of Bloomberg Businessweek’s article:
Sharing Everything But the Wealth (April 11-24,2016) 29-30.
On Wednesday, the U.S. Department of State released one of the last missing parts of the Report of the Visa Office 2015: Table XX, Immigrant and Nonimmigrant Visa Ineligibilities (by Grounds for Refusal Under the Immigration and Nationality Act). Two grounds of ineligibility in particular may be of interest to U.S. emigrants and accidental Americans: § 212(a)(8)(B) “Draft evader” and § 212(a)(10)(E) “Former U.S. citizen who renounced citizenship to avoid taxation”.
We explored the origins of the draft-related grounds for U.S. visa denial in a post last year. As noted then, since 2004 most people applying for tourist or other non-immigrant visas (though none of those applying for green cards) have been able to overcome the finding that they were ineligible for a visa due to having “departed from or who has remained outside the United States to avoid or evade training or service in the armed forces in time of war or a period declared by the President to be a national emergency”. The denial rate this year is slightly higher: nine people were denied non-immigrant visas, and only six had been able to overcome their ineligibility by the end of the fiscal year in September, either by obtaining a waiver, or by providing evidence that the ineligibility does not actually apply. Zero people were denied immigrant visas on this ground of ineligibility last year. All of those denied non-immigrant visas on this ground were U.S. citizens or green card holders at the time of their departure from the U.S.; § 212(a)(8)(B) states that it does “not apply to an alien who at the time of such departure was a nonimmigrant and who is seeking to reenter the United States as a nonimmigrant.”
With regards to people “determined by the Attorney General to have renounced United States citizenship for the purpose of avoiding taxation by the United States”, the State Department said they did not deny any of them a U.S. visa last year, as they have said every year since 2000. As we discussed recently, the Department of Homeland Security — responsible for making their own determinations of whether non-Americans who show up at U.S. borders (including those with visas, and those who don’t need visas such as citizens of VWP countries) are eligible to enter the country — revealed last November that since 2002, they have only denied two people entry to the U.S. due to the Reed Amendment, because both of them “affirmatively admitted” to government officials that they had renounced U.S. citizenship to avoid taxation.
Today, I received a letter from my Member of Parliament (Deputy Finance Critic), Phil McColeman.
So I went old school and sent a letter.
I’ve told him about the accidental Americans I meet at random in his riding…the look of anguish when I make the decision to force feed the the red pill known as FATCA. I’ve also told him about the impacts of FATCA on non-Americans (spouses, children, etc.)
Oddly, he didn’t mention them in his letter.
I’ll be writing him back and adding the PDF from a few weeks about about potential costs of FATCA to the Canadian economy and some new stories of accidental Americans he “represents” in Ottawa.
Anyway, here’s the letter if you’re having trouble falling asleep:
cross-posted from ADCSovereignty blog
Chronology of events …
On July 14, 2015, a post at the Isaac Brock Society, detailed the pleadings in the @FATCALawsuit. In late summer, @FATCALawsuit brought a motion for a preliminary injunction to enjoin the effects of FATCA on Americans abroad. The Obama administration defended the “injunction application” (in part) on the basis that any harm to Americans abroad was the result of “self-inflicted wounds“. The application was brought before Judge Thomas Rose of the United States District Court for the Southern District of Ohio, Western Division, at Dayton. On September 30, 2015 Judge Rose denied the plaintiffs application for an injunction. On April 25, 2016, Judge Thomas Rose terminated the @FATCALawsuit brought by Jim Bopp and organized by Republicans Overseas.
The complete decision may be read here:
An early response is here:
Here is the full text of the motion to dismiss:
ENTRY AND ORDER DENYING PLAINTIFFS’ MOTION FOR LEAVE TO FILE AN
AMENDED VERIFIED COMPLAINT (DOC. 32); GRANTING DEFENDANTS’
MOTION TO DISMISS (DOC. 26) PLAINTIFFS’ COMPLAINT (DOC. 1); AND
Here, analyzing each Plaintiff individually, the Court finds that none of the Plaintiffs has standing to sue Defendants. No individual Plaintiff has suffered an invasion of a legally protected interest, which is concrete and particularized, and actual or imminent, not conjectural or hypothetical. Moreover, no alleged injury is fairly traceable to the actions of the Defendants, but rather, the actions of an independent third party. Finally, there are no allegations that it is likely that the alleged injury will be redressed by a favorable decision. See Lujan, 504 U.S. at 560–61. In reaching these holdings, the Court analyzed the proposed Amended Verified Complaint, (doc. 32-1), which could not withstand Defendants’ Motion to Dismiss, (doc. 26); therefore, the proposed amendments are futile.
Accordingly, all claims are DISMISSED for lack of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1), against all Defendants, without prejudice.
UPDATE: Here is a new article from CGMA Magazine detailing the lawsuit dismissal:
And as reported yesterday in Law360:
Sen. Rand Paul’s FATCA Lawsuit Tossed For Lack Of Standing
By Jack Newsham
Law360, New York (April 26, 2016, 9:15 PM ET) — An Ohio federal judge tossed a lawsuit filed by Sen. Rand Paul, R-Ky., and several current and former U.S. citizens living abroad that challenged key elements of the Foreign Account Tax Compliance Act, saying the plaintiffs hadn’t shown that the law had harmed them or probably would harm them.
Paul and nine others lack standing, U.S. District Judge Thomas Rose ruled, and they still haven’t done anything to fix the problems Judge Rose identified when he refused to issue an injunction against the law’s provisions in September…
Registration required to read the rest of the article.
Here’s an unsympathetic Forbes story from October 2015 about the same lawsuit and the original motion to dismiss:
Duke of Devon says,
Mr. Morneau’s letter deserves its’ own post so it won’t get lost. He seems to get it. It will be interesting to keep on his case about the lack of reciprocity. He is the first Lib. to confirm they won’t help collect anything the IRS claims against a Canadian and I think his distinction that CRA-IRS transfer of information cannot legally be used by the IRS to impose FBAR fines is a new commitment. Not so sure the IRS would respect the distinction.
Here is the first reply that any of have gotten from the Finance Minister. Thanks for sharing it, Cheryl.
cross-posted from citizenshipsolutions dot ca
So much publicity! So little relevance!
The New York primary was this week. Both Donald Trump and Hilary Clinton extended their leads and moved one step closer to their respective party’s nominations. (Mrs. Clinton with the approval of the Democratic Party and Mr. Trump with the disapproval of the Republican Party.) Interestingly both Mr. Trump and Mrs. Clinton have higher disapproval ratings than approval ratings. Yet each of them appears likely to represent their respective parties in the upcoming Presidential election. One of them will win the election (this is not the same as having been elected). Will the eventual winner make a positive difference in the life of any individual? Doubtful. Watching the political process contributes to a sense of negativity about human nature.
But, wait! The World Is Full Of Good People!
Starting at the age of 7 or 8, I participated in four seasons of organized sports. To be truly effective, organized sports are highly dependent on adult volunteers. I well remember a guy named “Bob D.” Although I thought of him as old, he was probably somewhere between the age of 20 and 25. Anyway, “Bob D” was helping with baseball. “Bob D.” was helping with basketball. “Bob D.” was helping with football. “Bob D.” was always volunteering his time and coaching. I have a memory of my father noticing “Bob D.” and commenting “There are a lot of good people in this world”. So true. I don’t believe that “Bob D.” received a lot of recognition or a lot of gratitude. Yet year after year, season after season, week after week, day after day. “Bob D.” showed up. He clearly made a positive difference in the lives of others.
The Unsung Heroes of Life
You will find people like “Bob D.” in every facet of life. They do things for people, just because they want to. They contribute to their communities, just because they want to. They provide mentorship for people, just because they want to. They put their kids through university because they want to. They are the true “Unsung Heroes of Life”. I once thought of writing a little book about these “Unsung Heroes of Life”.
Although, I can’t do a book. I can offer this “Bedtime Story” …
Democrats Abroad has released its draft 2016 platform and readers of this new election year manifesto are invited to “JOIN OR LOGIN to leave a comment” until April 27th, by completing an online survey.
As usual, there are plenty of widely divergent, even contradictory, statements and goals contained within the platform’s pages. For example, DA favours
…restoring U.S. citizenship to persons born abroad who lost it by failing to meet residency requirements in a section of the Immigration and Naturalization Act that was repealed in 1978…
while calling for
…an amnesty program for foreign nationals who are citizens of the United States in name only, with no nexus to the United States other than their birth on U.S. soil or birth abroad to a U.S. parent, to allow them to shed their unwanted U.S. citizenship on a no fees, no penalty and no tax filing or reporting basis.
This thread is intended for those who would like to comment on this latest DA dispatch without potentially outing themselves in the process. We would encourage Democrats Abroad to carefully read and consider the thoughts and opinions of our commenters here, as well as those who choose to take the survey and comment on DA’s web site.
Appearance before the Standing Committee on Access to Information, Privacy and Ethics on the Transfer of Information to the United States Internal Revenue Service (IRS) April 14, 2016 Opening Statement by Daniel Therrien, Privacy Commissioner of Canada
There has been comment on the Revenue Minister’s qualifications for her post. Here, as well, is some discussion (brought forward by EmBee) on Daniel Therrien’s qualifications for Privacy Commissioner:
From *The Privacy Advisor* – May 29, 2014 *Harper Pick for Privacy Commissioner “May Not Be the Best Fit*
News that the Harper government has nominated a new federal privacy commissioner is sending shock waves through the Canadian privacy community. But the buzz isn’t over the fact that former Commissioner Jennifer Stoddart’s replacement has been found; rather, it’s over the fact that no one in the privacy world has ever heard of the newly nominated-for-appointment Daniel Therrien—and what they have heard doesn’t sound good if the end-goal is the protection of Canadians’ privacy rights.
What is known about Therrien is that he’s been a lawyer at the Department of Justice (DOJ) for more than 20 years. His current title is assistant deputy attorney general, public safety, defence and immigration portfolio. And in the midst of an increasing push by the government for surveillance powers and law enforcement access to Canadians’ data—a la bills like thehighly controversial C-13 and now-dead-in-the-water C-30—a lawyer who’s worked on helping the DOJ achieve those aims isn’t exactly who privacy advocates had in mind as the chief defender of privacy rights.
In fact, NDP Leader Thomas Mulclair has outright told the Harper government that Therrien has “neither the neutrality nor the necessary detachment to hold this position,” CBCreports, and has asked Prime Minister Stephen Harper to reconsider the nomination, which, by mandate of the Privacy Act, the House of Commons and the Senate must approve.
cross-posted from citizenshipsolutions dot ca
Appreciate your article. But the "Panama Papers" are more about compliance with corrupt laws than about tax evasion! https://t.co/053f00SYrE
— Citizenship Lawyer (@ExpatriationLaw) April 10, 2016
The article included:
The global aftershocks of the so-called Panama Papers are only beginning to be felt. More revelations are expected in the weeks ahead, and this will only add to the uproar.
The prime minister of Iceland has already been dumped. Other government leaders have been embarrassed. Several countries have announced inquiries into the secretive world of offshore tax evasion. And public anxiety about the corrupt coddling of the world’s superwealthy “1%” is showing signs of turning into red-hot anger.
But we shouldn’t be surprised. It’s not as if we didn’t already know that the world’s political and business elites frequently cheat and steal, that our governments are swindled out of trillions of dollars of revenue and, as a consequence of this greed, the vast majority of people suffer from a painful culture of austerity so these freeloaders can get richer. We already knew that.
However, it is the disgusting detail contained in this week’s revelation of leaked documents that is so revolting — and, of course, the appalling fact that so much of this is technically “legal.”
With their own interests in mind, politicians and business leaders in many countries have worked quietly in the dead of night to make this so. The result is that, more than ever, taxes now appear to be primarily for the little people.
The documents come from an influential Panama-based law firm. They include 11.5 million internal records disclosing the financial secrets of heads of state, billionaires, drug lords, celebrities and others.
While expressing outrage at the part of the “Panama Papers” that represents tax evasion, Mr. Burman identifies that much of the revelations of the “Panama Papers” was the result of clear and deliberate government policies and laws. In other words, the story of the “Panama Papers” is mostly about “legal tax avoidance” and ” NOT illegal “tax evasion”. Therefore, it is entirely unreasonable and counterproductive to focus on “tax evasion” and exclude “tax avoidance” from the discussion.