In a consultation Tiger, Somerfugl and I had with a lawyer today, he assured us Canada’s Bank Act and privacy laws protect the rights of all Canadians.
Because Canadian laws have not been amended to accommodate FATCA, he advised us there is no basis for a lawsuit now, but there may be in the future if the government changes the laws or if banks don’t adhere to the current Bank Act or privacy laws.
The lawyer made an excellent suggestion that we contact Jennifer Stoddart, Privacy Commissioner of Canada, asking for her support and assistance in ensuring these laws are not changed to accomdate FATCA.
He said Ms. Stoddart is an “ardent” advocate of privacy rights for Canadians. He said Ms. Stoddart not only looks at rights under existing laws, but also advises government on what laws relating to privacy should and shouldn’t be enacted.
Based on the Privacy Commissioner’s website, it seems this would be the best address to write:
Ms. Jennifer Stoddart, Privacy Commissioner
112 Kent Street
Place de Ville
Tower B, 3rd Floor
Their website states they do not accept complaints by e-mail, but I don’t know if that applies to submissions of this nature
Office of the Privacy Commissioner of Canada
Finally, the lawyer encouraged us to maintain pressure on Canadian politicians to prevent changes to Canada’s Bank Act and privacy laws.
Letter to Jennifer Stoddart is in the mail. I do believe the lawyer we consulted, could be on to something there. Especially considering that any decision made by our government could definitely infringe on privacy rights.
I hope all participants, living in Canada, who are on this site, will send off letters to Ms. Stoddart
@Don Pomodoro, Tiger
As I understand it, the 1986 Supreme Court case did NOT restore anyone’s citizenship. In fact, the case was of someone who had lost his US citizenship (had in fact renounced) and wanted it back, and the Court didn’t give it back to him. What they did, however, is rule that State could no longer (as it had been until then) assume automatically that commission of an expatriating act (especially those other than renunciation) was voluntary or done with the intent to relinquish. Before 1986, you had to PROVE to State that your expatriating act was either NOT voluntary or NOT intended to cost you your US citizenship. After 1986, you have to swear it WAS voluntary and WAS intended to relinquish US nationality, and you have to substantiate that by answering all those questions on Form 4079 (which by the way is NOT necessary for renunciation, as the State Department’s own foreign affairs manual clearly states in the chapters for consular officers; someone renouncing does NOT legally need to answer any of those questions they just need to swear to forms 4080 and 4081). For example, go to the bottom of page 4 on this document
http://www.state.gov/documents/organization/109065.pdf and read what it says about what 4079 is used for. It’s used to establish or document or substantiate intent to relinquish; there is no possible question of intent to relinquish if you march into a consulate or embassy with Form 4080 in your hot little hand and swear to it in front of a consular officer, so no need or relevance for 4079. And any consular officer who tries to tell you otherwise is so full of BS his or her eyes are turnng brown.
All that the Supreme Court decided in 1986 was that the burden of proof re volition and intent was backwards and needed to be reversed. Which makes a certain sense, if you think (as they no doubt did) that US citizenship is a blessing and that commission of an expatriating act is a crime — in criminal cases, or even in civil cases (though with a lower standard of evidence) the burden of proof is on the prosecution or the litigant and not on the “criminal” or “defendant” ever since the days of Magna Carta.
Nothing the Supreme Court has done has “restored” anyone’s citizenship and I don’t see how any of their judgments in this area can be so interpreted. What they might decide in future of course is always another story …
But again, I’m not a lawyer and this isn’t legal advice. But I’m 95% comfortable that I’m right on this one, for whatever that’s worth to anyone reading this post.
So, I am assuming then that anyone who renounced before this date to get, say German citizenship, or got a CLN for whatever reason are still in the clear?
Seems like this is legally-tenous ground for everyone else, but obviously the IRS is pushing for the worst interpretation of the law: “No CLN? We still own you!” I hope that those who naturalised before 1986 and who relinquish currently have their right to recognise their relinquishing act retroactively and receive a CLN as such.
At least, to the court’s credit, US citizenship didn’t really have any of the tax issues attached to it then that we see today. Its just become all of a sudden very convenient indeed to claim that all of these people have, in fact, not lost their citizenship since FATCA and FBARs have begun to be enforced.
Yep, you did it again. Put things so clearly re the pre and post 1986 Amendment. If I eventually go to consulate to get my back-dated CLN, would you come with me?
I believe that DOS will issue the CLN (could be naive to believe that), but am concerned re the IRS and tax issues that you raised. They seem to think they are a “higher being”. However, remember Petros posted on another thread that anyone who expatriated prior to 1994 has no tax obligations. Also, another possibility is filing for the CLN and then doing what Arrow’s wife is going to do next week; stating in a statutory declaration that “I have no tax filing obligations” and then “thumb your nose at them” if they say otherwise.
I am composing a letter to Jennifer Stoddart, and I also thought I would send a completely differently one to our Minister of Health, Leona Aglukkaq, focused on the impact to health, etc. Reports say #1 cause of stress is financial, stress the main cause of work absence, etc. If we can get some other gov’t figures lobbying on our behalf? At any rate, even if it doesn’t help much, I don’t think it can do any harm…. Besides the direct economic income of an outflow of money from Canada to US, there will also be an economic impact on our health system because of this.
@Everyone who responded: Thanks for your comments and letters to Ms. Stoddart. Tiger and I received discouraging calls from the Privacy Commissioner’s Office today. The content of those calls is posted in Schubert’s thread about a new letter from Jim Flaherty. You can check it out here:
I will let you decide if you want to post your replies about this on that thread or if you want to post them here. Essentially, an agent in the Commissioner’s Office threw the ball back into Flaherty’s court.
I received a letter from the Privacy Commissioner with a somewhat different tone than telephone conversations others had.
“Our office has been following this issue (FATCA) closely for more than a year and we have had discussions with a range of industry stakeholders.
It is our understanding that FATCA is aimed an ensuring non-US financial institutions identify and report on US persons that hole financial assets outside the US and hve tax reporting obligations to the US government. Current information and news on FATCA can be found on the IRS website at:
We note that many of the Canadian organizations that may voluntarily enter into FATCA agreements are subject to Canada’s private sector privacy legislation, ther Personal Information Protection and Electronic Documents Act (PIPEDA). Accordingly, organizations seeking to comply with FATCA requirements would also be expected to comply with their obligations under PIPEDA. Among these obligations are organizations’ requirements to limit the amount of personal information they collect about individuals, obtain consent for collections, uses and disclosures of individuals’ personal information, and safeguard the personal information in their care. For further information on PIPEDA please consult our 2ebsite at http://www.priv.gc.ca.
We are aware that early this year there was an announcement introducing proposed FATCA regulations. It is our understanding that the proposed regulations set out certain reporting exemptions, however these regulations are still under discussion. Until those regulations are finalized and in force, we will not be in a position to fully assess what their impact will be on the privacy and personal information of account holders in Canada.
We understand that the federal Department of Finance, as the department responsible for the development of tax law and legislation governing banks and other federal financial institutions, is engaged in this issue and has undertaken discussions with appropriate US government officials in this matter.
We hope this information will be helpful.
Information Centre, Office of the Privacy Commissioner of Canada.
Thanks for posting the letter. It sounds like they, too, are awaiting the final agreement (assuming there will be one) between the US and Canada. As the lawyer said to Blaze and I, there is no case yet. The Privacy Commissioner’s office is also taking a ‘wait and see’ approach.
When did you send your letter to Ms. Stoddart’s office? Curious as to why Blaze and I received a phone call and you received a letter. I personally still believe it would be a good idea for members of this site, who have not as yet done so, to write to Ms. Stoddart’s office. It is important that we keep this issue very ‘present’ with our government offices and our politicians.
I sent the letter March 24. Didn’t include a phone number.
@hijacked: Thanks so much for posting that. The response you received is exactly the type of response I had hoped to receive. I suspect Tiger’s and my letters ended up in the Commission’s call centre, rather than going to the Privacy Commissioner herself.
My feeling was that the “agent” I spoke with really did not fully understand how FATCA would affect Canadians doing their banking or investing in Canada with Canadian banks. She just kept saying it was a “foreign law” as a result of a “trade agreement” between the two countries. As we know, there is no trade agreement involved here.
I will send another letter–this time without my telephone number and see if I get a similar response to yours. It’s good to know the Privacy Commissioner is following this–which was my understanding from an article in Globe and Mail.
@Blaze, tiger, et al
An issue to focus on constantly: the term “US person” has no particular meaning or legal standing under Canadian Law.
Canadians born in the US have no special rights, privileges… or obligations… under Canadian law. We’re all equally protected under the Charter, regardless of place of birth. Many Canadian citizens were born elsewhere; we don’t allow exceptional or adverse treatment of “Chinese persons”, “Italian persons”, “Jamaican persons” etc. It even sounds wrong just saying it!
As long as this is about sorting customers out by birthplace – unsupported by or irrespective of source of income, economic activity, location of assets, residence or physical presence – it’s simply discrimination based on nationality or ethnic origin.
@Wondering: I’ve repeatedly made those very points in my correspondence to Prime Minister, Ministers of Finance, Foreign Affairs, CIC, as well as to MPPs, Leaders of the Opposition, Canadian Bankers Association, etc.
Great and keep up the good work with consistent messaging – because if it comes to some kind of Charter or Rights Code challenge, that’s likely a core argument. But until an individual’s rights are actually violated, there’s no case to take to court. For now this is a hot potato that no bank, politician, or agency wants to take a firm stand on – with the exception of the NDP and certain journalists (like the Ottawa Citizen editorial last Sept). In our hearts we know this is wrong – and so must they as well. So keeping political pressure on the human rights message is critical.
@Wondering: When I wrote for a second time to Canadian Banker’s Association, I mentioned by name the Charter lawyer Tiger, Somerfugl and I consulted. Tim thought his name might scare the s–t out of CBA.
I received a quick reply back. Included in that reply was this statement: “I’m sorry if I left the impression that Canadian banks do not obey Canadian privacy laws, they do and will in this case. If FATCA was implemented as it currently stands, banks would only reveal personal and financial information to the IRS with customer consent. We have an FAQ for customers of financial institutions on our website at the link below, which was developed by the Canadian Bankers Association, the Canadian Life and Health Insurance Association, the Investment Funds Institute of Canada and the Investment Industry Association of Canada. Of course, the information there may change as the regulations evolve.
Because the CBA information says banks will be required to report to IRS on US persons in Canada, I again contacted CBA and asked if my bank would be demanding my place of birth and consent to provide financial information and my address to IRS.
This is next reply I received: “We understand that Canadians are concerned about FATCA and its implications and we share your concerns. The CBA is doing what we can to identify legal, operational and practical issues associated with FATCA and the impact it will have on banks and their customers, and we are bringing those issues to the attention of the authorities in both the US and Canada.
“We remain hopeful that many of the issues that you raise can be addressed through changes to FATCA regulations or through agreements between the Canadian and US governments. Until then, the information for clients of Canadian financial institutions that we have on our website is the information that we can provide at this time.”
As you can see, CBA does not actually say they will not demand place of birth. Plus, information on their website says “If you do not complete IRS Form W-9 or provide your consent to disclose information to the IRS, your financial institution may refuse to open an account or may be required to close existing accounts. Otherwise, your financial institution will be required to withhold a tax of 30% on any U.S. source payments that you receive and send this money to the IRS.”
So, I again responded such action would not be consent. Rather, it would be forced compliance due to a threat. I further advised I would continue to consult an attorney about my legal options and would also investigate moving my assets to a credit union. I again stressed Charter of Rights, Human Rights, Bank Act and Privacy Act. I have heard nothing further.
If anyone else is interested in contacting CBA, here is their contact information.
Commerce Court West
199 Bay Street, 30th Floor
Toronto, Ontario M5L 1G2
Both Schubert and I have contacted CBA, but it’s important they know others are also watching and preparing to take legal action if necessary.
I will also post this information on a CBA thread.
@All: After Hijacked posted the letter received from Privacy Commissioner’s Office (which differed so dramatically from what Tiger and I were told in a telephone call), I wrote again.
In my letter, I outlined the different responses. I also said I believed the information I received by phone was incorrect and the information hijacked received was correct. I asked for a reply in writing.
A few minutes ago, I received a call from the Director of Communications in the Office of the Privacy Commissioner. She said she had just come from a meeting where my most recent letter was presented.
She first apologized for “misinformation” given to me in the first telephone call. She then said the information I received was “not correct or helpful.” She added, “That is not the service we want Canadians to receive from their government.”
She also said the information in hijacked’s letter is the correct information and that I will soon receive a similar letter.
She thanked me for my letter because she said they will be speaking with the employee to ensure any information being given is accurate and correct.
She also stressed the there are “a couple of people” in the Privacy Commissioner’s office who are “watching this (FATCA) quite closely.”
So, Canadians, it seems our faith in the Canadian way may be right after all.
Tiger, I would suggest you also write again advising what information you received and also ask for a response in writing.
For others, I think letters would be helpful asking for a reply in writing. The Director of Communications said they’re had a few, but not a lot of letters about this. I think the more they know people are concerned or even alarmed about FATCA, the greater action we will get.
Good for you following through after both of us received such different responses from the response received by Hijacked. I will definitely write them again and ask for clarification in writing.
If I remember correctly, they do not accept email letters and the letters should be addressed to Ms Jennifer Stoddart, Privacy Commissioner.
Tiger: Yes, the letter should be an old-fashioned snail mail letter–not e-mail and should go to:
Ms. Jennifer Stoddart, Privacy Commissioner
112 Kent Street
Place de Ville
Tower B, 3rd Floor
I will be interested in the response which you receive.
If anyone has or does receive a call from the Privacy Commissioner’s staff saying “FATCA is not a privacy issue,” (as Tiger and I did initially), this is incorrect according to the Commissioner’s Director of Communications. The correct information was in the letter which Hijacked received and posted above. I hope now that the Director of Communications has interceded, there will be no further incorrect information.
@All, I was searching the Privacy Commissioner’s site, and found this decision = which seems very similar to the current FATCA issue – and banks reporting on customer citizenship status:
“PIPEDA Case Summary #2004-286
Bank customers required to declare citizenship
(Principles 4.2, and 4.4 of Schedule 1; subsection 5(3))
A number of account holders of a bank complained when the bank sent them a form letter asking them to indicate whether they were U.S. citizens. They believed that the bank was requiring them to consent to the collection and use of more personal information than necessary for the purpose of providing account services.
Summary of Investigation
In 2001, the ownership structure of the bank in question changed and the bank became an indirect subsidiary of a U.S.-based holding company. Since the bank is now classified as a “controlled foreign corporation” for the purposes of U.S. income tax law, it is required to comply with applicable U.S. Internal Revenue Service (IRS) regulations with respect to information reporting and tax withholding. It must therefore report the interest income earned on personal deposit accounts to the IRS for account holders who are known to be U.S. citizens, or presumed to be U.S. citizens because they have not declared themselves to be non-U.S. citizens.
The bank mailed all of its personal deposit account holders an explanatory letter and account declaration form. The letter indicated that if a holder did not declare that he or she was not a U.S. citizen, the holder’s name and address, and amount of interest income earned, would be disclosed to the IRS. The letter also outlined the purpose for collecting such information and how it would be used.
Our Office confirmed that the bank was required to comply with the IRS regulations and that it had interpreted them properly.
visit the site to see the rest of the decision, and the rationale for it. What do you think?
I’ll have to think about this more and for one I am trying to think of what institution in question this would be. I believe when Citibank used to offer retail accounts in Canada they DID NOT ask for citizenship status if you were a resident of Canada. Let me do some more research. Don’t panic over this at the end of the day this a political issue not one to be determined by the privacy commissioner strictly on a technical view of the law.
If you go Ally.ca (which is US CFC in Canada and has all those annoying tv ads) and go through the process of setting up an account they don’t ask whether you are a US Citizen at least on the main account signup page.
@Tim, I read this too http://www.priv.gc.ca/cf-dc/2005/313_20051019_e.asp and again, wondering if the Commissioner has any teeth to bite with – as this example also seems to show no real privacy restraints on the bank in question.
‘OECD agreement promises Fatca for all’
Author: Alexander Campbell
Source: Operational Risk & Regulation | 17 Feb 2014
…….”…..Michael Edwards, chief counsel at the World Council of Credit Unions in Madison, Wisconsin, adds that privacy concerns may be another stumbling block. “Information sharing through a central hub is logical but it raises questions under various countries’ privacy laws. One of the reasons it took Canada so long to sign a Fatca IGA was because of concerns about the Canadian Charter of Rights. Hopefully the IGA addresses the Canadian issues but with all the data breaches we have been having, any centralised hub will raise privacy concerns even if it is totally lawful.”…