Posted on June 14, 2012 by Patricia Moon Posted in Issues regarding US persons abroad 21 Comments Just read this on Jack Townsend’s site Here is the accompanying document. “On remand, the district judge entered an order of compulsion and contempt against M.H.” Now what? Share this:TwitterFacebookEmailLike this:Like Loading...
There is a reason why some people call them the 9th circus.
The “required records doctrine” implies that the United States government uses the information for something other than finding criminals. Clearly, FBARs are only used to incriminate people. They serve no regulatory function. So now, the US Ninth circus says that we are required to provide bank account information, under the required records doctrine, yet the information just sits in Washington doing nothing. This is an abomination. So much for the rule of law, the rights of citizens, etc. This is the allowing the Federal government to tyrannize the people and the only thing left to do is for the People to rise up and overthrow the government (cf. the Declaration of Independence)–or renounce citizenship.
Or perhaps the defendant in this case will appeal the decision to the US Supreme Court. We can hope.
Yes, what this means is that constitutional arguments regarding FBAR are going to be hard to make. On September 2011 an event took place in New York City that has resulted in the end of constitutional rights for U.S. citizens.
This was the true result and the true victory of the perpetrators on that day.
Moot point for those who get CLNs, if you’re no longer a citizen you probably aren’t protected by the Bill of Rights anyway, at least that’s what I’d expect IRS lawyers to argue. But then if you’re a Canadian citizen or citizen of any other country that has the same treaty protections we have, FBAR filing and penalties aren’t enforceable in Canada anyway. Yes maybe that means you can no longer cross the US border. What price are you prepared to pay to cross the US border, in FBAR penalties and/or later US raids on your non-US financial accounts? 1% of your (and your spouse’s, maybe) life savings? 10%? 40%? All of it? Even more?
Everyone will have to make their own decision, based on their own life situation, including family, employment, finances, and political beliefs, but I find it hard to imagine that any sane person won’t balk and refuse at some percentage if it’s high enough. What percentage are you prepared to have to pay? Think about it. I’ll bet there are pointy-headed accountants in IRS who are thinking about it and advising the TAS on where the break-off point likely is under what circumstances. Or if there aren’t yet, there likely will be pretty soon. They have to pay off that $16 trillion debt somehow. So read up on the worst-case scenario in your situation, do the arithmetic, and choose accordingly.
To put things in some context, it’s my understanding (not on personal experience, as I’ve never had this problem) that in Canada the worst tax penalty you can face is back taxes, plus compound interest, plus 5% of the total of those two. Canada’s equivalent of OVDI (under which that 5% is waived completely) had, in the last year I heard about 10x the take-up rate as the US OVDI. So either we’re 10x more likely than Americans to cheat on our taxes and come clean later, or our government is 10x smarter than the US government. I vote for the latter, and based not just on taxation…
@Schubert, I don’t understand what sophistry must go into running a huge bureaucracy like the IRS. But if I don’t have rights because I’m no longer American, then I don’t have prior obligations and I am scott free of FBAR etc. But since they expect me to file my taxes after losing citizenship to prove to them that I am not a “covered expatriate” or that I owed them any taxes, then I would argue that the rights apply.
Yet the sheer arrogance of US federal employees is shown in that a Consulate official implied that he would give copies of the paperwork to a renunciant but afterwards refused to do so because she wasn’t an American any more and he didn’t have to do shit all for her. This isn’t about rights. This is about being a decent human being. That makes that consulate official a subclass of human species–a low life. This is just simply embarrassing.
@Petros totally agree with your sentiments, but it’s becoming apparent that the lunatics are taking over the asylum south of our border. Hence my suggestion of doing the arithmetic and deciding how much you really want to cross that border again, sort of related to my metaphor on the Forum 8854 thread a few minutes ago about what to do when walking along a path on which a mean-looking grizzly bear is asleep (and what not to do).
In fairness to the US consular services, some of those folks (at least the ones in Toronto) do seem to be decent human beings. Unfortunately, as we learned in the post you’re referring to, some of them in other consulates sound like former Stasi employees who got hired by the State Department (the US hired all sorts of ex-Nazis right after WWII to work for their “intelligence” services in Europe and to help them play catch-up to the V2 rocket program, so why not hire ex-Stasi or ex-KGB immigrants too)? Or people who fit the Stasi job description to a T.
NEWS FLASH: I heard yesterday from Canadian Civil Liberties Association Public Inquireis, advising me they are interested in cross-border privacy issues and referrring me to their Director of Public Safety.
Lo and behold, she is a dual US-Canadian citizen and is prepared to raise this at a staff meeting to see if this is something CCLA could be involved in. It would require approval of the board, but I was encouraged by our converstation.
Like the lawyer Tiger, Somerfugl and I consulted, she said it is premature for court action but said it is possible CCLA could take more proactive action like writing letters to decision makers in government and other organization to support individual and community rights.
have agreed to assemble a package of information for her to take to the staff meeting.
Interestingly, although she herself is affected by this, she had not considered it a CCLA issue until my several messages were forwarded to her.
CCLA sometimes works with ACLU on cross-border issues, so that could happen down the road.
I have told her about Issac Brock Society and will include a link in the information I send to her.
I will keep you informed.
@ Blaze, This is indeed good news. Thanks for your work on this!
Excellent progress. Thanks and congratulations for all of your hard work — and tiger’s and Somerfugl’s involvement too!
Perhaps something like this would better bring it the forefront of all Canadians what the US is doing to Canadian privacy and sovereignty issues, and not just to ‘US persons’, expressed in the clip of Shaun Rickerby, in bubblebustin’s post: http://isaacbrocksociety.ca/2012/06/14/its-not-a-battle-financial-institutions-can-wage-shaun-rickerby-of-rickerby-wealth-group-td-waterhouse-makes-a-canada-call-to-arms-regarding-fatca-on-june-12th/.
@Blaze, what good news! And thank you, and Tiger and Somerfugl for your work and perseverance on this! Proactive work by the CCLU (and possibly ACLU) even apart from court action would increase visibility of the issues – and @calgary is right – it will highlight how it is an issue for ALL in Canada – re privacy and sovereignty issues. So many single-citizenship Canadians consider moving to work in the US, or might be thinking of getting green cards, or buying property, or staying too long as snowbirds, etc. They need to be forewarned and forearmed, as well as those already currently threatened. Once the US gets that foothold into Canada through FATCA, who will be able to control where they go with it?
*Great! Well done! They are a pretty tough bunch.
*Has the Director of Public Safety been filing?
Good question — hope she joins in the discussion here if not a conflict of interest. Or, at least, has a look at what is being discussed here — for her wellbeing as a ‘US person’ in Canada.
Good work Blaze — Tiger and Somerfugl too! Just goes to show you never know when a poke here a prod there will produce something. This is indeed a cross-border privacy issue and it’s good to hear that it is being recognized as such.
@ Well done Blaze. One drop at a time, and the water wears away the stone! We just have to keep at it…
@Joe and Others: I did not ask the Director of Public Safety if she has filed or not. She seems to be in the early stages of learning about this–i.e., she did not know of the Flaherty letters to media and to Canadians, she did not know that CRA will not collect, she did not know of Canadian Bankers Association fact sheet on this on this and many other points.
That is why she asked me to assemble information and send it to her. I will try to do that nexr week.
She also suggested a couple of other organizations: Council of Canadians and the Public Interest Advocacy Centre (I had never heard of the last one). I told her someone had suggested CARP because their Executive Director is former tax lawyer. She agreed that was a good idea. Joe, I think you were going to contact them a while ago.
I will try to put information together for her next week. I will also contact Financial Consumers Agency of Canada, which the branch manager at TD Canada Trust suggested. With other things going on in my life, I think that will be all I can handle on my plate right now, but others might want to try the other organizations.
Canadian Bankers Association Terry Campbell brought up FATCA again in another speech in Vancouver earlier this month. Video Below. FATCA remarks start at about 20:30
If you can give contacts for the Director of Public Safety at CCLA (I think I sent them some information previously but didn’t hear back) and at the other organizations mentioned, I will send some info on what I passed on to TAS Systemic Advocacy http://www.taxpayeradvocate.irs.gov/About-TAS/Systemic-Advocacy and TAP (Taxpayer Advocacy Panel) http://www.improveirs.org/speakup.aspx and to Canada’s Finance Minister and other Canadian Government representatives, US Ambassador to Canada, etc. Thanks.
I found and sent on to you the information I previously submitted to CCLA. This is the response from March 6, 2012:
…in case you want to include in information you will provide. Thanks for all your work!
The excellent summary that Mr. Campbell gives to his audience of what US FATCA law means for Canada should be front page news.
Where are the journalists whose job it is to inform the Canadian people of what FATCA means to Canadian banks, the Canadian economy and an unjust cost stolen from the pockets of anyone who banks in Canada? This story needs to kept in the forefront?
*Abby Deshman Director, Public Safety ProgramAbby first joined the CCLA in July 2008 as the Law Foundation of Ontario’s Pro-Bono Articling Fellow and stayed on through 2009 and part of 2010 as the Project Director of the Fundamental Freedoms Project. She graduated from the University of Toronto Law School with an Hons JD in 2008, and obtained an LLM from New York University in 2010. She is currently involved in all aspects of CCLA’s advocacy and educational programs, including the litigation, legislative advocacy, policy work, and civil liberties workshops for high school and university students.
Abby has always been very active in the areas of social justice and human rights. Prior to joining the CCLA she worked with numerous local and international non-governmental organizations, including the United Nations High Council for Refugees in Kenya and Human Rights Watch’s Terrorism/Counterterrorism division in New York. During law school, she spent a term representing family, immigration and criminal law clients at Downtown Legal Services, the University of Toronto’s poverty law clinic. She was also a case worker in the law school’s International Human Rights Clinic, where she worked primarily on international human rights and counterterrorism issues, including the Clinic’s intervention before the Supreme Court of Canada in the Khadr case.
Her previous work has also taken her to Nicaragua, Bangladesh, Belize and Peru. Although she loves Toronto, she is concerned about the lack of sun available during Canadian winters, and is therefore constantly on the lookout for inexpensive flights to combat incipient vitamin D deficiencies.
email address: email@example.com
Ninth Circuit Holds that Government Established Foregone Conclusion as to Documents to Override the Act of Production Privilege (1/9/12)
United States v. Sideman & Bancroft, LLP, ___ F.3d ___, 2013 U.S. App. LEXIS 468 (9th Cir. 2013),here, the Ninth Circuit yesterday affirmed the district court’s finding that the “foregone conclusion” doctrine applied to override the target’s Fifth Amendment Act of Production privilege. I previously blogged on the district court’s opinion, Summons Production Ordered from Law Firm for Client Documents in Its Possession (Federal Tax Crimes Blogs 4/14/11), here.
Key steps in the holding, whether articulated this way or not are:
1. There is no Fifth Amendment for the contents of documents.
2. Notwithstanding, there is a Fifth Amendment privilege for any testimony inherent in the act of responding to compulsory process by producing the documents. This is commonly referred to as the “Act of Production” doctrine.
3. Still, notwithstanding the Act of Production doctrine, it will not apply where the Government can independently show that, at the time of the compulsory process, it had sufficient information to show certain key elements as “foregone conclusions.”