What if the US wants you returned to the Homeland? The conventional wisdom is that there is not much the US can do if you are not within their borders. This is a complicated question. There are at least two issues:
Assuming a violation of U.S. law, under what circumstances will an extradition treaty provide for extradition to the U.S.?
Lawyer: Becoming more likely that US gov can extradite people back to the US for tax crimes http://t.co/XhDawpKTAL – #FATCA enforcement
— U.S. Citizen Abroad (@USCitizenAbroad) June 4, 2013
As one U.S. tax lawyer writes:
This traditional viewpoint is changing, however. With increased globalization, strong revenue pressures being felt worldwide due to economic downturns, and encouragement of global cooperation by such international organizations as the OECD and the Commonwealth Secretariat, the various nations are evidencing more of a willingness to pull together when it comes to fiscal matters. The present trend is clearly to include tax offenses in extradition treaties. (see e.g., US-France Extradition Treaty at Article 2(6)). In addition, a large number of mutual assistance treaties and/or executive agreements covering international tax enforcement cooperation, particularly tax information exchange agreements, have been signed. More will undoubtedly follow. As a result, the likelihood of success for the US government to obtain extradition for tax crimes is decidedly becoming more favorable.
What facts would allow the U.S. to assert jurisdiction over conduct that occurred entirely outside the U.S.?
Cdn Sup Ct gives US extradition of Cdn cit. Conduct occurred outside of US US jurisdiction based on using US email http://t.co/Tjl4LT06iQ
— U.S. Citizen Abroad (@USCitizenAbroad) June 4, 2013
Chief Justice MacLachlin writing for a unanimous court said:
 In these cases, the record shows that the Minister properly considered and weighed the factors relevant to the situation of the appellants. With respect to the appellants’ first concern, the Minister found that the “negative impact of [their] actions, when considered in concert with the alleged actions of [their] many co-conspirators, would have been felt in jurisdictions outside of Canada”, implicitly including the United States (A.R., vol. I, at pp. 54 and 60). Additionally, it seems clear on the facts alleged here that the conduct described is connected in one way or another with the use of e-mail accounts, companies and bank accounts based within the United States. With respect to the appellants’ second concern, the Minister considered whether prosecution should proceed in Canada and concluded that this factor did not negate extradition.
Yes, you read right. In December the Supreme Court of Canada, in a unanimous decision refused to interfere with the decision of the Minister of Justice to extradite a Canadian citizen to the U.S. The conduct alleged did NOT occur in the U.S. A U.S. email account (Hotmail, Gmail, Yahoo, or another email account like that) was used as the basis of the jurisdiction over the conduct of this person. In case you missed that, the U.S. is saying:
If you use Gmail, we have jurisdiction over you!
Now, I don’t know anything about the facts or the allegations in this specific case. Therefore, I am not taking a position on what the accused did or did not do. For those interested, an overview of the story is here.
Asserting jurisdiction based on the use of email accounts, domain names, location of internet servers, etc.
Jurisdiction and the use of email accounts – Avoid using Hotmail, Gmail, Yahoo mail, Outlook, etc.
Leaving aside the issue of what this person may or may not have done, the assertion of jurisdiction based on the use, in Canada, of a U.S. based email account, (have any of you ever done this?) is problematic. Since the enactment of the Patriot Act, U.S. email accounts have NOT been private. See here for a frightening confirmation of how Google monitors your online activities. The U.S. government has the right to look through them. In other words, there is no right of privacy when using U.S. email accounts.
Jurisdiction based on the use of domain names – Avoid the use of .com and other U.S. domain names
I have previously written about the U.S. extraditing a U.K. citizen to the U.S. based on the use of .net domain name. The relevant facts were:
The U.S. government brought criminal charges against a U.K. resident and are attempting to extradite him to face these charges in a U.S. court. The U.S. alleges that he ran a site that did NOT contain “pirated U.S. movies”, but rather linked to sites that DID contain pirated U.S. movies. According to the article in the Herald Tribune”, the U.S; initially asserted jurisdiction over a person in the U.K. because the domain name, TVShack.net, was registered in the U.S.
General efforts of the U.S. to regulate the internet
As you know, the U.S. has been aggressive in attempts to regulate the internet. Much of this attempted regulation has been in the context of SOPA (“Stop Online Privacy Act”). The point is that this is one more attempt to extend its jurisdiction into other nations.
The rise of #offshore email and hosting accounts
It’s seems obvious that if you do NOT want to surrender your privacy that you should avoid any U.S. connected digital communication. This may not be possible. But, awareness of this is beginning. I have noticed some suggesting that it is wise to have both non-U.S. based email and non-U.S. based web hosting. In addition, some hosting companies are now aggressively advertising the fact that they offer “offshore web hosting“.
Non-U.S. email accounts will deprive the U.S. of some access to your information
As you know the United States of America is:
– is an “information seeking missile”
The purpose of FBAR and FATCA is to …
Provide the U.S. with information that is outside of its jurisdiction. In other words, the U.S. has no legal right to the information. Therefore, by threatening “life altering” penalties, the U.S. forces its citizens to provide this information to the U.S. government.
If the contents of bank accounts is important, then the contents of an email account would be even more valuable.
You heard it here first:
The next information return that the U.S. will require is the:
“Foreign Email Account Report” – FEARBar for short!
Congress will (like FATCA) unknowingly pass the general legislation (slipped in as part of a Hiring Act) and authorize the IRS to specify the contents of the return. What an Orwellian World!
FEARBar coming to an information return near you!
Odd that this is exactly what my husband and I were discussing last night. I urged him to close his yahoo e-mail account because as of June 1, 2013 yahoo is saying that “your e-mail info is our e-mail info and we’ll read it, analyze it and give it to anyone who asks for it” — my interpretation. Besides, when we looked at his (seldom used) yahoo e-mail box there were 139 pieces of spam in it. Who needs that AND the blatant invasion of privacy? I use startpage as my web browser and right now they are developing a similar “secure” service for e-mail called startmail, unfortunately it looks like it will be a .com. We’ll have to think about that and in the meantime our regular e-mail accounts are .ca. However, with USA overreach you have to wonder how long it will be before it claims that domain too.
I wonder how all of this is seen to be influencing the long standing position of both the U.S. and Canadian governments on their shared policy of not collecting tax obligations on behalf of the other country if those tax obligations were incurred AFTER the individual became a citizen of the country where he/she currently resides?
I personally see FATCA as a U.S. policy which denies to other nations the power to exercise this right while by default preserving it for the U.S. This is because the other nations practise residential based taxation so even if they were to implement a FATCA of their own it would not cause the U.S. violate the exercise of its own sovereignty as is enshrined in this policy whereas the U.S. is only turning over information of non-resident foreign nationals. I hope that Canada’s political leaders will wise up to this fact and see the assymetrical nature of FATCA.
That’s the famous Flaherty promise, isn’t it, but the question is how much standing will it have after he is gone. Some think he might resign (he has some health issues). It’s definitely something that worries me. That and the fact that my husband is still waiting for his Canadian citizenship to come through. It was probably unrealistic to think we could celebrate his becoming a citizen on July 1st this year. At the time he applied they were saying “up to 18 months” and that would be more like October. If anyone has received their citizenship recently would you mind telling me how much notice you got to appear at the ceremony?
@Em, I am still waiting also, I called the other day and she said they have until Dec. 2013, I thought What the Hell are they doing??? They received my application Nov.2011. I check several times a week, it shows still in process. Taking way too long for my liking!! 🙁
Isn’t it part of the Canada-US tax treaty, and not just a promise that Flaherty came up with all on his own?
@ saddened 123
WHOA! That is way too long. It sounds like they think they have 2 years to get it done and they’ll just take every minute of it, if they feel like it. That is not good.
It doesn’t matter about the Canada-US tax treaty because it appears as though a FATCA IGA would be an override on the Canadian side and a who-knows-what on the USA side (pretty much a you do this and we’ll think about doing something in return but in the end we probably won’t so too bad for you). Treaties and promises and certainly “reciprocity” are often just ethereal, cute little concepts to many governments these days (definitely to the USA anyway).
@EM- I agree with you. The U.S./Canada tax treaty is a paper tiger that is there to only give the appearance of U.S. cooperation and self restraint. FATCA destroys all tax treaties of which the U.S. is a partner. But then so does citizenship based taxation. FATCA is the culmination of U.S. arrogance. The adoption of FATCA is only the harbinger of worse things to come from the U.S. government.
I have no faith that Congress will do anything about moving to residence based taxation. That is because they refuse to do even a small thing now, even though they could. It is well within their powers to do so. If anything is done I suspect that it will be only half hearted measures that are designed to make it appear as if they are listening.
Did I not mention something like this…and was roundly pooh-poohed and told “Oh, it couldn’t happen…” Well, I guess I get to say “I told you so.”
FEARBAR….combined with FBAR e-filing requirements from 1st July 2013…..combined withthe idiots inthe GAO (GAO recommends IRS goes after people filing quiet disclosures) will continue to grow the juggernaut that is trying to feed the $17 Trillion US debt. Every person I speak to (colleagues, friends, US and UK family, people on public transport, my car garage, my volunteer colleagues in my charity work, ) to educate them about the reality of what USPs abroad face reacts in 2 ways : with incredulity about the FATCA news combined with support to catch tax dodgers. No one bar the “voices in the wilderness” (ACA, Victoria Ferauge, Martin Van Horn, the ever wonderful Roger Conklin, Isaac Brock Society, etc etc) is flying the flag as to what it means for Dual nationals/ex USPs living in HIGH TAX EUROPEAN COUNTRIES. we are NOT tax dodgers, we pay far more tax overall than we would pay in USA, we don’t take any services from the US Gubbermint/Givermint -all we have done is moved abroad to live for professional (job) and personal (foreign spouses) reasons and not being aware/falling behind for whatever reason with reporting/compliance . RBT eradication (residence based taxation ) combined with FBAR/3520 etc amnesty for genuine overseas residents would be the solution. Chances to implement??? read “iceberg….hot place underground……” I am seeing a spike in FATCA posts on all the feeds I subscribe to via linked in, nestmann group, CNN money, etc etc ….. FINAL MESSAGE: USPs abroad: renounce. relinquish,. Get rid of your green cards. dont’ register your kids with the US embassy/consulate. if u have already registered your kids prepare the groundwork for when they turn 18 for them to renounce. involve your local MP/MEP. if you’ve retired and are not beholden/dependant upon personal references…………stand by your local US consulate/embassy non USCIS line ………and give out handouts, either photocopied or handwritten, on the untold facts of US immigration,..the handouts should start: I love theUSA. its the government u need to worry about. and by the way make sure your email accounts dont have US domain name [see header of this thread] if that doesn’t rock these potential immigrants…. …..onyour handout give the email address of the author of “A Goverment of Wolves” . personal experience restated again: me and UK husband paid 40% of life savings to bring me into compliance. divorce threatened but resolved and we are now am now in a much better place mentally than 15 months ago coz I finally realised the only perm solution was renunciation which I am working on and dreaming the day when I get my CLN…….. strength and honor to USPs all over the world.
you are not alone
you are not criminals
renunciation/rellinquishment is patriotic act comparable to 1776
you are standing up for “no taxation without representation”
You rock as well!!!! Thanks for your rant, which we all here relate to. 40% of your life savings to come into compliance is simply immoral and obscene. Hang in there, US Friend Abroad.
@crystal london, grieved to hear of the significant loss of your savings, peace of mind, and ultimately almost your marriage – all sacrificed under duress to the god of US ‘compliance’.
On a regular basis, Canadian-only co-workers and neighbours happily compare how easily they can crossborder travel and shop with their various Nexus passes and enhanced driver’s licenses (although at the same time enjoying regular mini-rants against Americans). Whereas I was born with the ‘right’ to enter the US, but don’t want to ever again unless for a family emergency. Go figure that my fellow Canadians who pay no US taxes and have no US citizenship rights can enjoy such access and travel into the US on a moment’s whim without any of the jeopardy that it poses to me and my family. The US expects us not to have any savings where we live abroad, and treats us oppressively. US citizenship is a sham and a fraud. It is not a social contract or mutual association – it has become the basis of extortion and an unwanted leash and has created a framework to officially justify abuse.
Recently, I was travelling, and gazed over the river – to the other side – the US border, and my heart felt only a great upwelling of bitterness and sickness. As a child, I used to always be excited when our family visited the US but now, even the thought or sight of it makes me nauseous. Now it is only my huge unwanted burden, and the source of fear and anxiety, and that interferes with any ability to live my life with any peace of mind. I owe no US tax, but as we well know, that doesn’t matter.
I echo calgary411 – hang in there. Take care.
I was curious and looked up your reference to “A Government of Wolves,” by John Whitehead. Sounds like a good read:
calgary411, I don’t know if the analogy of the government to wolves is correct. Even a wolf in the wild knows which sheep to leave alone and which to slaughter to promote herd health. The government doesn’t care who it “kills” and “how many”. To compare a bureaucratic bacteria to wolves is a disgusting insult to wolves.
You’re right, Animal — to equate the US government to wolves is an insult to those great creatures.
But, I believe this is what the title refers to: http://www.barrypopik.com/index.php/new_york_city/entry/a_nation_of_sheep_will_beget_a_government_of_wolves/
An interesting new email technology in beta right now–bitmessage.org. It’s p2p, decentralized, encrypted email. There is no central server to be raided, backdoored, monitored or shutdown by any overly controlling government like traditional email. It’s still in beta. But this would bring email privacy to individuals and means email would have no jurisdiction, it’s global p2p. So you can avoid the dreaded US personhood from using a US based email provider. Seems relevant to fearbar.
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Dear IBS friends……..teary eyed over messages of support and understanding.. currently interested in expressions of interest to organise a UK/EU “mirror”.replica of the IBS Canada “traumatised by FATCA” conference this coming weekend…….especially relevant as the FATCA FFI “portal to Mordor” [to quote Stephen Mospick] opens in a few weeks @ early July 2013…FFI friendly list published 1st Dec. remember. we love USA ,, Thomas Paine, US constiution etc. and TOTALLY SUPPORT the principles of tax justice and fairness (ping: I live in a country with 20% VAT, 40% higher rate income tax+12.5% National Insur AND , 60% tax duty on petrol) … We. are. not. tax. evaders.or.dodgers. in.spite. of .US. media. presentations….
You are not alone in your dismay. There is a sea change about to take America (or we can only hope). Thanks to Just Me:
Great writing. I really liked this comment:
@badger, I just read your post of June 5 — I haven’t been following IBS closely for a while. I share your change of feelings toward the US. Although I now have a CLN attesting that I relinquished US citizenship in the 1970s, the whole experience of having to go through the hassle of obtaining it, and my continuing uncertainty regarding the attitude of the IRS and of US border guards toward ex-citizens has really made me bitter toward the US government and has destroyed my desire to travel there, even to visit relatives. And I don’t care if the NSA knows it somewhere in their Yottabyte haystack.
Now my anxiety is increasing again over my status and all this shit with surveillance. I have yahoo.ca, but for posting here I have a hotmail account. I am still waiting for my CLN, waiting waiting waiting. 3 months have heard nothing. I guess that’s nothing. Must be patient.
Here is an email being circulated from the founders of an email service based in Europe:
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