The amount of money that a person has in a bank account is irrelevant to determining tax liability. In order to assess income taxes, the IRS needs only an accounting of the interest, dividends or capital gains that a person has earned as income. Therefore, the filing requirements of FBAR, FATCA and 8938 are unrelated to the need to assess a person’s tax liability. The information, however, could possibly be useful to detect a crime of money laundering, terrorism, counterfeiting or criminal tax evasion, the very crimes that the Bank Secrecy Act is meant to curtail–that is if the IRS could figure out how to get terrorists, money launderers, counterfeiters and criminal tax evaders to fill them out. Since they haven’t figured out that one, the FBAR law is useless for any legitimate purpose.
The Fourth Amendment protects the privacy of individuals to the point that if a government officer wants to search a persons papers or property, for the sake of determining if a crime has been committed, he must have a search warrant obtained on the basis of probable cause. It is a prohibition of general warrants. It seems to me that the FBAR, FATCA, and form 8938 circumvent the necessity of a search warrant on probable cause and are thus the same, in essence, as a general warrant.
Here is an 19th century explanation of the 4th amendment rule regarding search warrants:
Flanders, Henry. An exposition of the Constitution of the United States : designed as a manual of instruction. Philadelphia, 1860, p. 259-260
433. The fourth amendment provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, should not be violated ; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
434. This refers only to warrants and process issued under the authority of the United States, and was doubtless intended to guard against the practice which formerly prevailed in England, in one class of cases, of issuing warrants in a general form, which authorized the officer to search houses and arrest persons, without naming any persons or places, in particular. This was a sort of roving commission to the officer to search any place and arrest any person whom he might suspect of being the accused party. The King’s Bench, in the time of Chief Justice, Pratt, pronounced general warrants to be totally illegal, and Parliament subsequently passed resolutions against them; resolutions by which the personal liberty of the subject was confirmed, and the lawful secrets of business and friendship were rendered inviolable.
435. Under the Constitution of the United States a warrant cannot issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized. The warrant, and the complaint under oath upon which it is founded, must not only state the name of the party, but also the time, and place, and nature of the offence, with reasonable certainty.
There are so many violations of the constitution, human rights etc.. Why can’t this whole mess be fought in court?
Money. It takes money to take on the Goliath of the United States Federal government. It will cost millions while those of us are in a situation being hung, each one separately.
We certainly are living in changed times….from what I understand, if you own various stocks in a nominal brokerage account, each separate holding with a full description of the type of share has to be listed on a separate 8938…this means it could be a couple hundred pages long in addition to the rest of the tax return. :P. Accountants are going to probably be substantially raising their fees for those who require this form to be filed.
I wouldn’t be surprised if annual compliance costs run into the thousands for these people. At least expats with less than $200,000 will not have to worry about this but that’s still only a modest threshold for anyone who’s built up a substantial pension fund, etc.
I suspect that almost every person who is concerned about this must file the form. The cost of IRS compliance for U.S. citizens living abroad is way beyond what most people. Furthermore, I suspect that it will be very difficult to find tax people to do this kind of work for U.S. citizens. Just wrote a post about this:
Can civil disobedience be based on oath of office
Note also that the oath is to defend the constitution, not defence of a country although that mighe be implied, nor the defence of a government. The founding fathers understood that a rogue would try to nullify the rights defined in the constitution
All officers of the seven Uniformed services of the United States take swear or affirm an oath of office upon commissioning. It differs slightly from that of the oath of enlistment that enlisted members recite when they enter the service. It is required by statute, the oath being prescribed by Section 3331, Title 5, United States Code. It is traditional for officers to recite the oath upon promotion but as long as the officer’s service is continuous this is not actually required. One notable difference between the officer and enlisted oaths is that the oath taken by officers does not include any provision to obey orders; while enlisted personnel are bound by the Uniform Code of Military Justice to obey lawful orders, officers in the service of the United States are bound by this oath to disobey any order that violates the Constitution of the United States.
 Text of the Oath
I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
That’s the key – defending against all enemies both foreign AND DOMESTIC. That’s why they worded it that way – they knew how easy it is to sabotage from within.
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In case the 4th Amendment wasn’t dead enough already, here’s another matchstick for its funeral pyre: