A law which is unjust does not seem to me to be a law.
St. Augustine, On Free Choice Of The Will 1.5
Once a free person determines that a law is unjust, it is not wrong, if he or she disobeys that law. I consider the FBAR law unjust, especially in its application to US persons abroad, who by nature of their residency outside the United States, innocently open up financial accounts to store and invest the capital that they have saved after duly paying taxes.
Residents of the United States do not face similar requirements, like Form 8938, of enumerating their assets for the IRS and the Treasury department, and those of us living abroad feel that the law unjustly takes away our privacy rights protected by the Fourth Amendment.
Do we then become lawbreakers if we refuse to comply with FBAR, Form 8938, or Form 8854? It is a timeless principle of law that an unjust law is no law. So no, we do not become criminals when we refuse to obey laws that are unjust. Conversely, the enforcer of unjust law becomes a criminal, and hence, I accuse Timothy Geithner, Douglas Shulman and Barack Obama of committing crimes against Americans abroad because of their enforcement of unjust laws in an unjust manner–which would deprive Americans abroad of their property without due process of law.
Principle of Expediency
All things are lawful for me, but all things are not expedient.
St. Paul, 1 Corinthians 10.23 (KJV)
To the Corinthians, who claim the right to do certain things, Paul responds essentially that even if he were to grant their premise, it is not always expedient to exercise such rights. In the end, it is necessary to judge whether an action is expedient, given the circumstances. When in the position of powerlessness, a victim of unjust laws, the rule of thumb is to do what is expedient to the degree possible. Let’s say a tyrannical policeman comes to the door and demands $10 doorknob tax or he will kill me. It is not just to have to pay such a tax and the punishment is disproportionate, but it is not expedient to die over $10. One must therefore judge whether to obey an unjust law, or to disobey the unjust law and suffer the consequences. If the police man came to the door and said, “Do you have any Jews in your house?” If you lie, you save a life. You may have broken an unjust law, but in this case, human life is at stake, not just $10. A person must thus weigh the benefits and the consequences of civil disobedience.
Thus, I argue that as a Canadian resident in Canada with all my wealth in Canada, I can afford to disobey the following IRS requirements: FBAR, Form 8938, or Form 8854. (1) These are requirements of unjust laws; (2) the United States cannot enforce these requirements here in Canada; (3) I may, however, suffer the consequence of losing access to the United States. Indeed, I have already lost access, since I don’t want to go to prison over the comments I have openly made against FBAR and my intention of disobeying that law.
But it is expedient for me to file 1040 returns up to the time I expatriated, because in certain circumstances Revenue Canada will collect taxes for the IRS. Since I owe no US taxes, and they may decide that I do, it is likely better that I file, even though extra-territorial taxation laws are unjust–so much so that the United States and Eritrea are the only two countries in the world that think such requirements are good and proper–the rest of the entire world has realized that extra-territorial taxation is either unrealistic or just simply unfair.
Others will find that expediency demands them to obey all the requirements, including the most outrageous ones like FBAR. They cannot afford to have to lose their access to the United States. In that case, it may be expedient to obey an unjust law.