But a major obstacle to all this is Canada’s Charter of Rights and Freedoms, which prohibits (Section 15.1) discrimination based on several criteria, including “national or ethnic origin.” Constitutional expert Peter Hogg has pointed this out in a five-page letter to the Finance Department, which is co-ordinating the IGA negotiations with the US.
“In my opinion, the procedures mandate by the Model IGA are discriminatory in a way that would not withstand Charter scrutiny,” Hogg says in his letter. “These procedures effectively treat individuals differently, and adversely, based on an immutable personal characteristic, specifically citizenship. If Parliament were to enact legislation authorizing and permitting this type of differential and adverse treatment, the legislation would contravene the equality protections in section 15 of the Charter.”
Opinion: Creating tax misery for nearly seven million U.S. expatriates
By Don Whiteley, Special to The Vancouver Sun March 12, 2013
This really should not be a post by me but am so excited by this, had to at least share the link. Tim mentioned over at MapleSandbox that something good would be coming in the next few days and to keep an eye on Vancouver Sun. I went over right away, and there it was!
This is very very good news. Hogg is a really heavyweight in the world of Canadian constitutional law. A couple of thoughts:
1. The first case the Supreme Court of Canada decided interpreting S. 15 of the Charter was discrimination based on citizenship (a citizenship requirement to practise law in BC). So, even though citizenship is NOT one of the grounds specifically enumerated in S. 15 it is covered.
2. Obviously it is also discrimination based on “national origin” which is also covered.
Professor Hogg (as he was during the early years of the Charter) wrote at least one article which strongly suggested that most distinctions based on enumerated grounds would violate S. 15. This is an interpretation that is probably too aggressive.
In any case, this is great news and strongly suggests one lawyer to turn to in the event that a FATCA IGA goes through. So few countries have signed the FATCA IGAs that I am beginning to think that the banks will be cut to loose to deal with FATCA (or not). Of course, they will be hit with lawsuits if they do start having special rules for special kinds of people.
@USCitizenAbroad
I am so excited I can’t sit still!
@Nobledreamer
Yes, this is very very good. Professor (as I think of him) Hogg is somebody that the government must pay attention to. Does anybody have a copy of the letter?
The tide is turning away from the FATCA IGA. The “coalition of the willing” numbers only 4 or 5. If China refuses and Canada keeps stalling, I would says the IGAs are history. The banks will have to face FATCA alone. It will interesting to see how that plays out.
Of course, without a complete repeal of FATCA the whole 8938 form is still there which is a big problem for US persons abroad.
P.S. You should sit still, this is still going to take a long time.
Yes, but do not have permission to post it publicly. Am checking on this.
Well, it may be a long time but after such a long time of feeling powerless, this is exhilarating!
Then let it go. If Hogg won’t give interviews, he probably wouldn’t want it posted.
Great article! Many thanks to Don Whiteley. After reading Tim’s message at the Sandbox about 5 hours ago, I did a search at the Vancouver Sun for FATCA but all I got was “Did you mean FATWA?” I am so pleased to find this posted here now. Good catch, nobledreamer. It really helps to think that someone with Mr. Hogg’s credentials has put his stick on the ice and taken a good hard slapshot at FATCA. Now we need to all stay in the game for as long as it takes to get a win (no IGA, FATCA repealed). 🙂
I believe the article gives a pretty good synopsis of the submission. Just to make an uneducated guess I suspect the Department of Finance is allowing him to “consult” on the negotiations that is probably why he does not wish to grant any interviews on the subject.
In terms of what might have triggered his interest in this issue. I have no idea. I know I have not attempted to make any direct contact. I will say there are a LOT of prominent people effected by this mess than many would think especially when you talk about spouses, children, and other relatives. I know for example of a VERY prominent Canadian tax lawyer(not Mr. Hogg) and law partner of Jean Chretien and Eddie Goldenberg whose wife was born in the United States who has been taking some interest in FATCA.
Wow! It is nice to know that there is someone on guard here to look after our rights. If Canada says ‘no’ to the IGA, and the banks choose to implement FATCA themselves, I might be very interested in joining a class action lawsuit.
And I’ll be damned if I’m going to declare any settlement to the IRS!
I found another reference to Hogg’s letter, it states that he sent the letter to the Finance Department last November, “but he declined to make the letter public because he was attempting to arrange a meeting to discuss the issues” Globe and Mail, January 7, 2013
http://www.theglobeandmail.com/commentary/irs-wants-canada-to-nab-us-tax-cheats-why-we-should-care/article6994760/
Very good letter and I can only hope that the Canadian government takes careful notice. I would also encourage every affected Canadian to write to their representatives and attach a copy of the letter- and join in a class action if an IGA is put in place. If there is no IGA there is effectively no FATCA as most nations laws would preclude local FFIs from entering into an agreement with the IRS.
@all
I agree, I don’t think making the letter public is appropriate. And Tim says the article represents it well so I think we get the gist of what we need to know.
@Lagoon,
that’s a very good catch. I just re-read a lot of the 204 comments. One of the better articles that I remember. And once again, our friend Don Whiteley.
@Em re: “Now we need to all stay in the game for as long as it takes to get a win (no IGA, FATCA repealed)”
Can we add the end of citizen-ship based taxation to that win?
Arrow and Steve Klaus and USCitizenAbroad, All,
It is good news — thanks for publicizing with your article in the Vancouver Sun, Arrow.
Excellent advice for all of us to get another round of letters out to government representatives, with a link to or an attachment of the article. And, we all need to be part of a class-action suit if necessary. No matter where I am in my personal process, I will support that effort.
(…start with a letter to the MP who advised contacting H&R Block for advice — good night! I hope that is not my MP — mine doesn’t even bother to answer my letters.)
@Steve Klaus
As USCitizenAbroad has stated, even if FATCA is rendered unenforceable in Canada, the 8938 form will still be our problem, and we can either waive our Charter rights by filling out the damn form and submitting it, or we can just waive our rights and responsibilities as US citizens and renounce.
Remember all this is marathon not a sprint.
@mjh49783
At least an end to FATCA in Canada is a step in the right direction, though not a solution to the whole US citizen-based taxation problem. FATCA does she light on the issue though, which until now has mostly gone unnoticed.
Also, for those who like myself have never been tax compliant, and cannot renounce without opening themselves up to risk of potential penalties, knowing that our banks won’t rat us out, does provide some relief from US threat.
@ WhiteKat — Yes!
@ calgary411 — It was WhiteKat’s MP who came up with that H&R Block nonsense. My MP, Ted Menzies, wrote “we recommend that you contact a professional tax advisor”. I replied to that of course but now I have this great article as ammunition so I believe I will write to him again. Your MP owes you a response but hopefully one that doesn’t include where to get tax advice since at this point you could write a manual yourself for any tax advisor out there.
@mjh49783
,
Of course our banks could still rat us out, but without an IGA, it will be more risky for them, thus less likely.
Count me in on a class action, too. I was just denied relinquishment, and forced to renounce.
Excellent article! Maybe I was terribly wrong with my assumption that Canada is nothing but the 51st state of the US!
I could imagine the Feds refusing FATCA, and I can imagine they would then have to forbid the banks from dealing directly with the IRS for all the same reasons. What I can’t see is all Canadian financial instutions suffering the 30% hit or dropping all US business. What then could the possible outcome be?
The only thing I can see that would make us all happy would be for the US to let Canada off the hook for everything to do with FATCA. What’s the chance of that? Which is more likely, Canda caving to the US or the US caving to Canada?
@ The Mom,
Have you already written an account of this on another thread? If not, could you fill us in on this? How did they deny you the right to relinquish?
The only thing I can see that would make us all happy would be for the US to let Canada off the hook for everything to do with FATCA. What’s the chance of that? Which is more likely, Canda caving to the US or the US caving to Canada? – whatAmI
hehehe… a rhetorical question….
Is Canada willing to reprogram the chip in our Cdn passports. Is Canada willing to imprint “none of your business” on where we were born? I like the publicity of the problem but we should Push, push, and more push…..
Go Canada. If I ever decide to live in North America again it would definitely be Canada.
I think with a little organization the same types of issues could be brought forward in Europe as well.
Europe protects against so many other types of discrimination so why not national origin discimination as well???