I am delighted to report that Jim Jatras has filed a Freedom of Information Act request for all US documentation of negotiations between the governments of Canada, Switzerland and the UK and the US for a FATCA IGA.
We can’t get information like this in Canada from an Access to Information request, because more than 30 years ago Parliament, in the enabling legislation, excluded from access all intergovernmental correspondence and related files. Not necessarily so in the US, it seems. And if we can get our hands on this information, no matter how long it takes, we can and will distribute this to the opposition parties and our media.
So, Jim Flaherty and the CBA, if you’re watching — if you aren’t playing fair ball and protecting Canada’s sovereignty, banking and privacy laws and the Charter rights of ALL Canadian citizens and legal residents, we will find out. And if you weren’t playing fair, you will pay the price and it will be your legacy.
Think about that very carefully. Be careful what you wish for and what you sign.
You’ve been warned.
Thank you Jim Jatras! We owe you, at least a great Canadian brew, if you’re ever in town!
Source RepealFatca.com | filed in News | Author James George Jatras for RepealFATCA.com
As noted previously, FATCA (the “Foreign Account Tax Compliance Act”) cannot succeed unless the U.S. Treasury Department is successful in coercing a sufficient number of countries into enforcing this foreign (i.e., U.S.) law on themselves. The key mechanism for doing that is to impose legally questionable “intergovernmental agreements” (IGAs) that effectively gut the sovereignty of the “partner” country and force indiscriminate turnover to the IRS of personal financial information in abrogation of national privacy and data protection laws, all under false assurances of reciprocity.
On Monday, October 7, RepealFATCA.com filed a request under the Freedom of Information Act (FOIA) with Treasury to provide copies of records in connection with negotiation of IGAs with the governments of Canada, Switzerland, and the United Kingdom. The request covers “all departmental records (paper or electronic) concerning communications (emails, paper correspondence, or records of in-person meetings) between Treasury officials and officials of the three foreign states indicated above relevant to negotiation of IGAs with such foreign states, as well as departmental records concerning worldwide implementation of FATCA that may be relevant to the IGAs with any of the three foreign states indicated.” (The full text of the FOIA request is provided at the end of this bulletin.)
The RepealFATCA.com request comes at a crucial time. Of special note:
Canada: As previously reported, Murray Rankin, the “Official Revenue Critic” of the progressive New Democratic Party (NDP), the chief Opposition party to the Conservative government of Prime Minister Stephen Harper, has written to Finance Minister Jim Flaherty urging rejection of any IGA with the United States that isn’t an equitable deal or that violates the rights of Canadian citizens and residents. The NDP’s Shadow Prime Minister, Tom Mulcair, has since upped the ante in a letter to voters, endorsing Rankin’s stand and even mentioning the dreaded “S”-word: “sovereignty”! Effectively outflanked on populism, human rights, and Canadian sovereignty by the NDP opposition, Flaherty – who doesn’t hide his dislike for FATCA and for Treasury’s intransigence – and the Harper government find themselves in a difficult position. It is not clear how they can rescue a Canadian IGA (no matter how much pressure some powerful financial interests might apply), and at this point they may not want to. More importantly for FATCA’s evident global infirmity, it is even less clear how Treasury credibly can move FATCA without Ottawa’s capitulation. A public protest against FATCA will take place on Parliament Hill on October 16.
Switzerland: On October 3, a group of citizens’ organizations launched a drive for a referendum to nullify the non-reciprocal IGA with Switzerland, which has already been approved by the Swiss parliament. While reported in French, German, and Italian language Swiss media, little has appeared in English and details are still sketchy. The organizations need to collect 50,000 signatures, which is considered doable, for a national referendum in early 2014 to overturn the Swiss IGA. If the signatures are successfully collected and the vote takes place, there’s a good chance the IGA would be voted down, annulling it under Switzerland’s unique brand of direct democracy. The result would be that one of the few significant financial centers that Treasury had considered “in the bag” would be – poof! – back out, for good.
Despite legal exceptions for protected materials, FOIA requests have been used to good effect (by groups like the Electronic Frontier Foundation and the Electronic Privacy Information Center) even on as sensitive an international topic as NSA surveillance programs – a related matter, since FATCA data provided to the IRS would be passed on to U.S. intelligence agencies. Treasury has little excuse to withhold information indicating what promises and threats have been made behind closed doors, hidden from the American and international public, to induce reluctant foreign governments to sign one-sided FATCA “deals” that will cost their consumers hundreds of millions, if not billions, of dollars to pay compliance mongers ready to cash in. (For example, the view of one Miami tax attorney: “From the perspective of a U.S. international tax attorney, we love FATCA for four reasons: complexity; uncertainty, with all the changes since 2010; change, with all the amendments and reforms to the law; and fear-mongering.”)
Finally, as illustrated by the situations in Canada and Switzerland, the RepealFATCA.com request comes at a time when the wheels seem to be coming off the entire IGA process in the face of grassroots citizens’ resistance (even taking into account an announcement that Paris would sign an IGA on October 11 – but according to unconfirmed reports has been delayed by the partial U.S. government shutdown!). This was tacitly admitted by Treasury’s issuance of a purported “myth”-busting analysis last month, a stack of tall tales that has been thoroughly debunked. (See Lynne Swanson and Victoria Ferauge, “FATCA Reality Check,” Tax-News, October 9, 2013; and “FATCA: We Are Not Myths,” OpEdNews, October 6, 2013).
James George Jatras
Editor, RepealFATCA.com
++++++++++++++
Notice: The foregoing may be posted, republished, or quoted with attribution.
Contact RepealFATCA.com and find out how you can help get rid of “the worst law most Americans have never heard of”!
Email: RepealFATCA@gmail.com or jim@globalstrategicpr.com
Twitter: @RepealFATCA
Phone: +1.202.375.1007
www.RepealFATCA.com
++++++++++++++
The full text of the FOIA request letter follows:
October 7, 2013
Freedom of Information Act Request
Freedom of Information Officer, Department of the Treasury
1500 Pennsylvania Avenue NW
Washington, DC 20220
VIA EMAIL and U.S. MAIL
Dear FOIA Officer:
This is a request filed under the Freedom of Information Act seeking copies of records in connection with negotiation of “intergovernmental agreements” (IGAs) by the U.S. Department of the Treasury (hereinafter, “Treasury”) with the governments of Canada, Switzerland, and the United Kingdom providing for implementation of the Foreign Account Tax Compliance Act (FATCA) in those countries.
Please provide copies of all departmental records (paper or electronic) concerning communications (emails, paper correspondence, or records of in-person meetings) between Treasury officials and officials of the three foreign states indicated above relevant to negotiation of IGAs with such foreign states, as well as departmental records concerning worldwide implementation of FATCA that may be relevant to the IGAs with any of the three foreign states indicated.
Date range of this request: (a) From the earlier of January 1, 2012, or the time prior to the February 8, 2012, “Joint Statement” with the United Kingdom and four other European states (found at http://www.treasury.gov/press-center/press-releases/Documents/020712%20Treasury%20IRS%20FATCA%20Joint%20Statement.pdf ) when the Treasury Department began preparations for contact or communication with officials of the United Kingdom in relation to such “Joint Statement”; (b) to the date of this request.
Request for “news media” status: As editor of RepealFATCA.com, I am a “representative of the news media” for fee waiver purposes as “any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” Based on my status as a “news media” requester, I am entitled to receive the requested record with only duplication fees assessed. Further, because disclosure of this information will “contribute significantly to public understanding of the operations or activities of the government,” any duplication fees should be waived.
Request for Expedited Processing: This request warrants expedited processing because it is made by a person primarily engaged in disseminating information, and it pertains to a matter about which there is an urgency to inform the public about an actual or alleged federal government activity. This urgency is particularly applicable to Switzerland, where a public referendum is pending, and to Canada, where IGA negotiations reportedly have reached an impasse.
Mode of delivery: To facilitate the timely fulfillment of this request and to moderate Treasury’s burden of paper documents, any portion of the requested records which Treasury may have in electronic form may be emailed to me, with the rest sent by U.S. mail, per the contact information appearing above.
Please acknowledge via email your receipt of this message, and indicate an anticipated timeline for fulfillment of this request. Thank you in advance for your prompt attention to this matter.
Respectfully submitted,
James George Jatras
Editor, RepealFATCA.com
Can someone who knows how, maybe the person who fixed this on my Economist post, please tell me how I can change that messy URL string to Jim’s website to the nifty blue wording that looks more elegant and is more readable (and provides a live link). My do-it-yourself internet education hasn’t extended that far yet …
Or just do it for me and tell me later by private email, if you know me, or by comment in this thread otherwise.
thanks
@schubert1975
Hmmm. This should be a working link:
http://www.repealfatca.com/index.asp?idmenu=4&title=News&idsubmenu=139
I think this comment is redundant, but in case not — I hope our Swiss friends keep in touch with Jim on this request. I’m sure the good Swiss folks who are organizing that referendum would make superb use of it for their purposes!
Jim, we should make you an honourary Canadian. You have to start spelling our funny way, though.
@ brockers. Jim Jatras iz amazing…true inspiration. we need him in LONDON Pls…..
What is it that one hopes to find there?
Good move, Jim. I would have loved to know about the French negotiations as well. Hopefully, you won’t get, like Sophie Int’ Veld a bunch of blacked out documents.
Please let us know if and when you receive something.
@Polly
I think this intro says it well:
“So, Jim Flaherty and the CBA, if you’re watching — if you aren’t playing fair ball and protecting Canada’s sovereignty, banking and privacy laws and the Charter rights of ALL Canadian citizens and legal residents, we will find out. And if you weren’t playing fair, you will pay the price and it will be your legacy.
“Think about that very carefully. Be careful what you wish for and what you sign.
“You’ve been warned.”
There’s a reason these talks are being kept behind closed doors, which Rankin and Mulcair are right to point out. When the Canadian government is discussing with a foreign state a “deal” that compromises Canadian sovereignty and citizens’ rights, you can bet there are some promises and threats being made that the officials are trying to hide from the rubes (i.e., us). Also, re the CBA reference, you can bet the hidden hand of some elements of the financial industry who don’t necessarily like FATCA consider surrender of sovereignty and abrogation of Canadian citizens’ rights as the lesser evil than the compliance costs they (wrongly, IMHO) expect to minimize under an IGA. Perhaps fear that those fingerprints would come out with the FOIA records would encourage their taking a principled line on the IGA and recalculating where their real self-interest is. They should be helping us to get rid of FATCA, not paying people like that fear-mongering Miami lawyer who “loves FATCA” or wasting their capital trying to get the IGA signed.
@Jim, since these talks are secret, what do you think they will be released under a FOIA request.
As you mentioned, they’re secret for a reason. They don’t want people to know the dirty talks and threats that are happening behind closed doors.
Sophie Int’ Veld made a similar request regarding the FATCA talks that happened with the EU and they basically honored it, while blanking out most of the documents.
I wish we could FOIA from the Canadian side of the border (called Access to Information Act here) but there’s a reason why “freedom” does not appear in the Canadian act. Canada ranks 55th in the world for upholding freedom of information. If a long delay didn’t squelch a request here then the redact pen probably would. Thank you Jim for taking advantage of this tool from the American side of the border. There’s more than one way to skin the secrecy cat.
http://www.theglobeandmail.com/news/national/feds-dispute-canadas-dismal-ranking-in-report-on-freedom-of-information/article9011887/
@Chris
Short answer: I have no idea. However, FOIA officers generally take their jobs seriously. As I noted in the piece, even on something as sensitive as NSA spying, groups like EFF and EPIC (which *still* haven’t woken up to FATCA as a privacy issue, BTW) got some valuable information. As sensitive as the IGA talks are, they don’t rise to the secrecy level of an intel operation. So, we’ll see. But more importantly may be the uncertainty, especially on the Canadian side, is what *might* come out.
Canada is not without its own resources in this battle. We could for example put an exit tariff on oil exported to the USA and send the price of oil in the US soaring. See how long FATCA lasts when Americans have to pay double to fill up.
The United States is a beggar nation. Beggars can’t be choosers.
@Petros, but Canada also want really bad Keystone XL…. Lots of things at play. I wonder if Keystone was part of the negotiations, since it’s totally unrelated. Maybe the FOIA request will show.
@Petros
You are absolutely correct. Granted, there are some small countries that might not have much choice, that have no means of reprisal against aggression (let’s be honest, that’s what FATCA and the withholding threat amount to).
The FIRST step is for a country that does have recourse, like Canada to decide, “we aren’t going to stand for this.”
THEN they can consider, “OK, what’s in our tool bag that we can bring to bear, it we need to.” Petros suggests energy. Correct. As I’ve suggested, WTO and court actions. How about the Canadian government telling the Big Five they have to withhold dollar-for-dollar the same amount of any payments going to the US that US banks take out as 30% going to “recalcitrant” Canadian institutions? There are no doubt lots of others. Someone had suggested air overflight rights. Some ideas are more workable than others.
But the bottom line is that if Canada decided to say that, they wouldn’t have to follow through. Other countries would look at the example, and say, “Yeah, count us out of FATCA too.” And Treasury would have no choice but to back down.
@Jim Jatras
Do you have an opinion on whether implementing the 30% withholding penalty due to the absence of an IGA would violate NAFTA?
I was thinking of copying the FOI request, and substituting the name of the country for another. It should work, no_
Is it anticipated that all of the documents will be delivered electronically and not in a truckload? If electronic, could I not use a c/o address for its delivery?
There is nothing barring anyone from doing the same in their country?
@Jim Jartas – Have you considered filing the same request in the UK (Freedom of Information Act) and Ireland? In Ireland the Dept of An Taoiseach (Prime Minister) and Dept of Finance are both covered under the Act. The UK would take some research.
How about Germany as well. I would make the request for Ireland and the UK but I’m away at the moment. Also I have approach a civil liberties organization in Ireland, but have had no response in the last 2 weeks.
@Mark Twain
There is nothing to prevent any Canadian from filing an Access to Information request along similar lines, to the ATI office at Finance Canada. There is a $5 filing fee. However, as I’ve noted before, I strongly suspect that you won’t get anything, because Canada’s ATI Act explicitly exempts intergovernmental correspondence and related matters (correspondence would include negotiations, in their interpretation I’m sure) regardless of the subject matter. That’s not just international but also federal-provincial by the way. I’m not certain, but I believe the courts have upheld this. So after waiting a month or so, you’ll likely get a polite email or letter saying essentially “nice try but no cigar.”
However, if anyone wants to risk the loss of $5 (not sure whether they refund it if they deny your request) and wants to flood them with requests just for the fun of it, or on the very off and unlikely chance you might actually get some information, feel free.
For information on how to submit an ATI request to Finance Canada, go here
http://www.fin.gc.ca/afc/atip-aiprp/request-demande-eng.asp
and have fun.
nah, I meant an FOI to USA as US citizen, about FATCA relations with Sweden & Norway, rather than the ones the Jatras request covered.
Further to my earlier reply concerning ATIP requests to Finance Canada, and in the spirit of Sol Alinsky:
if/when you submit a request and get nothing back, you can go another step and file a complaint with the Information Commissioner. However probably all you’ll get back is a reference to Section 13.1 of the Act, saying information obtained in confidence from another government (and the IGA discussions certainly are in confidence right now) are exempt.
http://laws-lois.justice.gc.ca/eng/acts/A-1/page-6.html#h-11
The full act and contents are here
http://laws-lois.justice.gc.ca/eng/acts/A-1/index.html
I stand corrected the Act came into being in 1985 not before 1982 … my memory that far back is a bit imprecise.
I’m not a US citizen and haven’t been one for 38 years, so I’m providing this for anyone else who has a CLN going back for however long and can’t (AFAIK) file a FOIA request in the US.
But as I keep saying, it’s not worth trying in Canada in this specific instance, except just to harass Finance Canada a bit. I think writing more emails to the media and MPs is a more fruitful use of time, but that’s just me.
FATCA TRAC has been implemented in one of the leading banks of North America. Another leading bank in the Middle East has signed up for this solution and there is a pipeline of closures in Australia, North America and the Middle East.”
Want to guess that “leading” North American bank is a Canadian one?
– See more at: http://www.cio-asia.com/tech/industries/qa-addressing-the-myths-about-fatca/?page=2#sthash.Z5pxkXo6.dpuf
@bubblebustin
Interesting article, arguably should be posted instead over that that CBA letter thread that Petros started earlier today. Or for the bank, if we ever find out which one it is (I agree, it isn’t likely a Mexican one, and that only leaves Canada in North America, I can’t imagine any US banks are doing any of this since there is no real intention of reciprocal data sharing on the part of anyone in the US as far as I can see).
One mildly interesting and revealing sentence in the story is where the interviewee notes that even if an FFI hasn’t, or thinks it hasn’t, any US person clients, they’re still going to have to prove that and implement something like this. Therefore confirming what has been said all along on IBS and elsewhere, that every so-called FFI on this planet is going to pay for this, or their clients or their governments/taxpayers, will. But not the IRS. Everyone else on the planet gets to pay for their Quislings to be tax-collectors for Mordor. A new chapter in Andrew Carnegie’s How to Win Friends and Influence People.
Jim, Thanks for all the work on our behalf. It may come to the simple fact that we may have to pull you out of the “Excited States of Amnesia”, since the USG may not appreciate the fact that you are doing what you can to protect us.
To all IBS’rs, we sincerely owe him a debt of gratitude.
I have filed many FOIA requests in the past on unrelated subjects to FATCA, and in my experience, it will take quite some time for the request to make its way through the process. I would full expect the request to be fully or partially denied based on one of the exceptions, then a decision have to be made whether to file suit against the government seeking to compel the disclosure. ACLU and other public interest groups end up in lawsuits regularly re FOIA requests. Having said this it is a good move and should be followed through with as much media as possible.