Liberty and justice for all United States persons abroad

The Isaac Brock Society

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The FATCA Question — this needs to be answered by the Conservative Government of Canada and aired in the media before any IGA is signed. Your turn Mr. Harper, Mr. Flaherty, Mr. Shoom.

Thanks to Tim for this — and especially thanks to MP Ted Hsu.

(I will have a hand-out of the Q-121 at the mini-demonstration in conjunction with the October 31, November 1, November 2 Conservative Convention in Calgary.)

ADDITION, October 29: I’m adding to this post (for use in forwarding to government representatives, media, etc.) the COMBINED Q-121 and Q-127 in PDF format in more a readable form (questions asked in the Canadian Parliament on October 25, 2013 by MP Ted Hsu and October 28, 2013 by MP Scott Brison, respectively). Canadian Parliament FATCA Questions 121 and 127 – Oct 25,28 20133

Parliament of Canada, October 25, 2013, Q-121 — [Mr. Hsu (Kingston and the Islands)] — With regard to the implementation of the Foreign Account Tax Compliance Act (FATCA):

Questions

Q-1212 — October 25, 2013 — Mr. Hsu (Kingston and the Islands) — With regard to the implementation of the Foreign Account Tax Compliance Act (FATCA):

(a) what steps has Canada undertaken to complete an Inter-Governmental Agreement (IGA) with the United States;

(b) with what type of legal instrument will the government enact a FATCA implementation agreement;

(c) will the government bring an IGA before Parliament and, if so, in what form;

(d) what steps are in place to ensure parliamentary review of an IGA;

(e) what studies have been undertaken as to whether an IGA can be implemented as an interpretation of the existing double tax treaty;

(f) in what ways will the government involve Parliament in any process to amend interpretation of the double taxation treaty;

(g) who is involved in the process indicated in (a);

(h) by what criteria is the government evaluating any proposed IGA with the US;
(i) who established the criteria in (h),
(ii) on what date,
(iii) under what authority;

(j) is a draft IGA currently being negotiated, and if so, what is the status of said negotiations;

(k) when will the draft IGA be made public;

(l) will the public be consulted for input on any agreement, and if so, by what means;

(m) with which specific individuals and groups did the Minister of National Revenue consult regarding FATCA, and on what dates;

(n) with which specific individuals and groups did the Minister of National Revenue consult regarding any IGA, and on what dates;

(o) with which specific individuals and groups did the Minister of Finance consult regarding FATCA, and on what dates;

(p) with which specific individuals and groups did the Minister of Finance consult regarding any IGA, and on what dates;

(q) what studies and analyses has the Department of Finance undertaken with respect to FATCA;

(r) what studies and analyses has the Department of National Revenue undertaken with respect to FATCA;

(s) what analyses and studies have been undertaken as to whether the proposed FATCA regime constitutes an override of the existing double tax convention;

(t) what were the conclusions of the studies in (s);

(u) what steps is the government taking to ensure that, as a result of FATCA or an IGA, the US will not be allowed to impose higher taxes on Canadian persons than those agreed under the current convention;

(v) what studies and analyses have been undertaken to determine whether Canadian citizens and residents are or will be denied financial services in Canada owing to US tax law in general and FATCA in particular;

(w) what are the conclusions or recommendations of the studies in (v);

(x) what mechanisms are in place to ensure that Canadian citizens and residents are not and will not be denied financial services in Canada owing to US tax law in general and FATCA in particular;

(y) what measures will be taken to remedy denial of services to Canadians as a result of FATCA;

(z) what studies and analyses will be undertaken to assess FATCA’s impact on the availability of TFSAs and RESPs for dual US-Canada citizens;

(aa) what are the conclusions of any studies in (z);

(bb) what analyses and studies have been undertaken regarding whether the US definition of “resident” for tax purposes, and its impact on Canadians with dual status, is compatible with Canadian law, including the Charter of Rights and freedoms;

(cc) what analyses and studies have been undertaken regarding whether the US definition of “resident” for tax purposes, and its impact on Canadians with dual status, as will be enforced by FATCA or by an IGA, is compatible with Canadian law and, in particular, the Charter of Rights and Freedoms;

(dd) what analyses and studies have been conducted with respect to FATCA’s consequences upon Canadians who believed their US Citizenship had been relinquished;

(ee) with respect to the studies referenced in (dd), what particular efforts has the government undertaken to ensure no violation of a Canadian’s charter right would be occasioned by implementing FATCA or an IGA;

(ff) what studies and analyses have been undertaken regarding the likely cost of FATCA implementation to
(i) Canadian private institutions,
(ii) Canadian individuals,
(iii) the government;

(gg) how were the figures in (ff) arrived at, by whom, when, and in consultation with whom;

(hh) what studies and analyses have been undertaken as to whether the likely cost of FATCA implementation to Canadian private institutions, Canadian individuals, and the government will be offset by the receipt of reciprocal tax information and Canadian tax law enforcement by the US;

(ii) what analyses and studies have been undertaken as to whether the likely costs and benefits described in (ff) and (hh) are likely to be greater, lesser, or the same as under the current tax-information-sharing relationship with the US;

(jj) what agencies, boards, tribunals, or commissions of the government have studied, interpreted, analyzed, or commented upon FATCA,
(i) to what extent,
(ii) on what dates, (iii) with what conclusion(s);

(kk) what specific steps has the government taken to assess the privacy implications of FACTA;

(ll) on what dates and with respect to what topics has the government met with the Privacy Commissioner to discuss FATCA or the effect of any IGA;

(mm) broken down by province or territory,
(i) on which dates and
(ii) with what individuals in the provincial and territorial governments did the government consult on the subject of FATCA;

(nn) broken down by province or territory,
(i) on which dates and
(ii) with what individuals in the provincial and territorial governments did the government consult on the subject of any IGA;

(oo) does the government have the support of every province and territory with respect to any proposed implementation of FATCA, and what evidence does the government have that this support exists;

(pp) has the Department of Justice developed any policy relative to the implementation of an IGA and, if so, (i) how was it developed, (ii) in consultation with whom, (iii) to whom was it provided, (iv) who requested it, (v) what were its findings, conclusions, and recommendations;

(qq) how will the government monitor and enforce compliance by Canadian institutions with FATCA requirements;

(rr) how will the government monitor and enforce regulatory oversight of the bank due-diligence efforts required by FATCA and its implementation, including
(i) by whom
(ii) how,
(iii) using what standards such efforts will be evaluated;

(ss) what penalties exist and what penalties does the government intend to establish for failure to adhere to standards indicated in (rr);

(tt) has the Department of Justice or the Department of Revenue developed any legislation or guidance relative to the implementation of an IGA or FATCA and, if so
(i) how was it developed,
(ii) in consultation with whom,
(iii) to whom was it provided,
(iv) who requested it,
(v) what were its findings, conclusions, and recommendations;

(uu) has the Department of Justice reviewed any proposed legislation relative to the implementation of an IGA;

(vv) with what individuals or groups has the Department of Justice consulted relative to the implementation of FATCA;

(ww), what steps have been undertaken to assess regulatory changes to federal institutions at the provincial and territorial level that would be required as a result of FATCA or any IGA;

(xx) what steps has the Canada Revenue Agency taken with regard to developing or implementing FATCA or any IGA;

(yy) what tax information does the Canada Revenue agency currently share with the US,
(i) when,
(ii) under what circumstances,
(iii) in what form;

(zz) has the government assessed whether FATCA and its implementation would require changes to the ways in which tax information is currently shared with the US;

(aaa) what has the government sought, or does the government plan to seek from the US, in terms of reciprocal information sharing as a result of the FATCA or IGA negotiations, and what is the current status of negotiations on this point;

(bbb) what measures are in place to ensure that no privacy laws or policies are violated in any transfer of information contemplated in (aaa); and

(ccc) by what process(es) and on what dates will any IGA and its enacting legislation be vetted for compliance with the
(i) Constitution Act, 1867,
(ii) Canadian Charter of Rights and Freedoms,
(iii) Canadian Bill of Rights?

72 thoughts on “Liberal MP Ted Hsu, Question 121, Parliament of Canada, October 25, 2013: FATCA”

  3. Will the Canadian media finally properly address these questions regarding FATCA?

    I sent an online form thank you to Mr. Hsu.

  4. It appears the NDP are stepping up to the plate on this issue.
    Write MP Hsu messages of encouragement!
    If you can maybe make a focused donation to the NPD, pointing out that your financial support is motivated by this issue. You do not need to sign on as a member to make a political contribution, and there are Canadian tax credits available to offset the cost. Note this:

    “Recent changes to the Canada Elections Act and the Income Tax Act provide limits and tax credits for contributions to political parties. To encourage participation by many ordinary people, businesses and unions can no longer make political donations to Canadian federal political parties. Only individuals can make these donations, and only to a maximum of $1,275 each year.

    There is a generous tax credit. When you file your income tax return, you can take advantage of a tax credit. The credit is much more generous than the tax credit for charitable donations. The credit is:
    75% of your contribution up to $400,
    50% of the next $350, and
    33-1/3% of the last $525 (but see maximum).
    The maximum credit is $650.”

    Political contribution info from: http://www.livewelldogood.com/political-contributions-top-tax-tips.php

  5. As I said in another context, better late than never!

    Finally the Liberals have, at least by posting this excellent and exhaustive list of questions, put the government and everyone else on notice that they’re paying attention and are concerned about our national sovereignty and our individual rights and protections under Canadian law on Canadian soil.

    That makes a Hat Trick — the NDP, the Greens, and now the Liberals have put the government on notice that they’re paying attention and want answers. Answers that are evaded, fabricated, or fudged will be handing all the opposition parties a platinum-plated election issue, and I think the government knows it.

    For our non-Canadian friends: a question in Question Period for an MP is much, much better than an Access to Information request (our equivalent of an FOIA request). The question(s) posed are a matter of public record. Any answers are a matter of public record. The government has to answer the questions, maybe not quite the way the questioner wanted, but then there are follow-ups allowed. It is a serious act of contempt of Parliament for any MP to make false or fabricated answers to these questions (they can try to dodge the question, but they have to answer in some fashion, and the answer can’t be a lie or they can be suspended or expelled from the House, and that even includes Ministers). And the answers are a matter of public record.

    The questions and answers often get buried and ignored by the media, never mind voters, but that’s where activists (like many of us Canadians on this website) come in, and where this website comes in.

    The NDP asked somewhat similar questions about two years ago, but that was before there was an IGA under negotiation. I’m frankly a bit disappointed the NDP didn’t pose this superb list of questions, rather than the Liberals, but full kudos to Ted Hsu and (probably) to Justin Trudeau, whom I’m sure is aware of this question having been posed and reasonably sure has no problems with that.

    This really turns up the heat on Flaherty IMO. There really isn’t anywhere to hide on this any more, as long as we pay attention, watch for the answers, and then publicize the hell out of anything we hear that we don’t like (or do like, for that matter and in fairness).

    This may not excite non-Canadians, but it sure excites me and I think most, I would hope, all Canadians following this issue.

    The ball is in your court, Jim Flaherty. Lob it back very carefully. And, CBA, if you’re listening, please note that Tsu’s dragnet ought to reveal whatever it is you’ve been lobbying for with the government on this. I hope you’re going to be proud of what you did, when it hits public light, because by God it will now, or we’ll all know the reason why …

  6. Wondering,

    This is a Liberal MP who has now steped up to the plate, Mr. Ted Hsu: http://www.tedhsu.ca/. Now we know the positions of the Green Party and the NDP — and the questions now asked by the Liberal Party. What we don’t have transparency on: negotiations with the US by the Conservatives to sign an Intergovernmental Agreement with the US re FATCA. Will the Canadian Charter of Rights and Freedoms be trashed to make ‘US Persons in Canada’ second-class Canadians.

  7. @Wondering

    Sorry, but Ted Tsu isn’t NDP, he’s Liberal. In fairness, this question isn’t cause for making an NDP donation (and I say that regretfully as a life-long NDP voter).

    However the NDP is very much on-side on these matters, see letters posted elsewhere on this website written to Brockers by Tom Mulcair and by Murray Rankin, NDP Revenue Critic.

  8. I’ll be sending off a thank you e-mail to Mr. Hsu (Ted.Hsu@parl.gc.ca) later today. I hope as many Brockers and Sandboxers as possible will do the same. Did I miss it or is the (IN)security of FATCA data transmission mentioned (possibility for illegal access/intercept, ID theft, etc.)? No matter, the list of questions Mr. Hsu presented are excellent. Will Harper or a designated MP be required to answer ALL of them or can someone just stand up in parliament and go blah, blah, blah and then say they are “working” on the issue? The questions are very specific and we want very specific answers.

  11. This questioner, was well schooled by Brockers?

    Those questions should be sent to all government Parliamentarians contemplating IGAs. I will forward to my contact in New Zealand. I hope others do to.

    So, what are the chances that any of those questions will be answered? Is the government required to answer them, and if so, when and how are they made public, or is this just a pro-forma process that allows one to say, “See, I asked the questions, but could not get a response?”

    What is the next step if no answer is forth coming. The Administration in the U.S. often just ignores or pro-forma sends an non responsive answer which ignore the points originally asked. Does anyone know if Hsu plans follow ups?

  12. @calgary411, shubert1975
    Sorry I mistook Mr Hsu for NDP – talk about cognitive bias! Was so excited to read this I saw what I believed. That this is now coming from the Liberals is actually even better because it seems they are waking up to this issue. I’ll send an encouraging letter shortly.

    My feeling about donations to political parties in general is: nothing gets a politician’s attention like material support. And because the recent changes to Elections Act try to level the playing field between individuals and large organizations, any donation is valued accordingly.

  13. Wondering,

    Who would have thought yesterday the Liberals would be making such a positive move? And, that move makes me and I’m sure so many of us so much more positive that Canadian representatives ARE paying attention. Canada CAN be the leader and the questions a template for other countries to as their politicians.

  14. I’m delighted Dr. Hsu has asked these questions. I can’t help but wonder if he was motivated, at least in part, by the fact he was born in Oklahoma and his wife is from California. I posted some of that information at Maple Sandbox.

    http://maplesandbox.ca/2013/fatca-iga-questions-from-liberal-mp-in-house-of-commons/

    His two daughters would also have American citizenship. I believe one of them was born there, the other was born in Canada, but both of their parents were born in U.S.

    In his youth, Mr. (actually Dr.-he has a PhD in physics) Hsu was a “talented chess player.

    Checkmate?

  15. Question Period (oral questions) mostly yield more heat than light, for reasons of political theatre.

    Written questions, on the other hand, can be a much better way of eliciting actual information from the government (also better than the ATI process, as Schubert points out).

    In other words, this is exactly the right tool.

  17. It is apparent that Canada CAN make a difference — a leader in stopping FATCA take over other countries’ sovereignty and rights. Dr. Hsu’s questions need to be asked in every country of the world before they sign away the rights of their ‘US Person’ citizens and residents for US FATCA. The US shows no regard with yet more US collateral damage under FATCA with IGAs necessary to waive law in other countries. US FATCA law had no cost-benefit analysis before launch, has no basis for promising reciprocity to other countries. Best the US close up its own US tax havens first, the largest in the world. The US FATCA net will likely not find the tax evaders resident in its own country. They may be more savvy than the, mostly, minnows properly paying their taxes to the countries from which they receive benefits.

    Work in the homeland, USA, before invading other countries with FATCA combined with your unique Citizenship-Based Taxation (save Eritrea, which is condemned for it). If real tax reform could change US law so the US taxed on residence, like the rest of the world, you would show that the US is capable of playing fair.

  18. At last….I feel like Etta James…singing her beautiful song. I love MP Hsu for submitting all these questions. I wrote and thanked him on his website and Facebook page (messaged that) ..

    I wonder how all those questions will be addressed and if the PCs will be secretive and required the answer of under negotiation and top secret.

    Hopefully this week we may get answers.

  20. About a month ago I asked Kevin Shoom if an IGA would go before the House.

    Here is his response

    “As per statements from Department of Finance spokespeople, if an agreement is reached, it would be made public and require Parliamentary approval for implementation.”

    I contacted him after asking the CBA the same question. CBA referred me to Finance for an answer.

  21. Please remember that the name of the country is CANADA and not CANNOTADA.

    Canada CAN stand tall and indeed make the difference that stops FATCA dead in its tracks..

  22. Wonderful news! Now that Harper is so vulnerable over senate issues he might be less inclined to pursue an IGA without consultation and the involvement of parliament. Time to hit hard!!

  23. Rather than suggesting others send Yee an email, I have quickly fired this off…

    Dear Mr. Yee

    Thank you for your excellent blog post. I tired posting this comment, but had difficulties, so thought I would email you instead.

    It was good to see an MP asking their government some hard questions about FATCA and the proposed IGAs. There has been similar questioning recently in the Canadian Parliament by Liberal MP Ted Hsu, Question 121, Parliament of Canada, October 25, 2013: FATCA”

    Below is a link to his questions in a more readable format, and I would suggest, that these are excellent ones that you could put forward to your government to answer..

    FATCA has, generally speaking, been operating by Stealth around the world, and the more Parliamentarians that begin to ask questions about what their Treasury folks are up to, the better.

    We can all be against offshore Tax evasion, but the negative impacts and the collateral damage from this poorly designed and overly complicated unilateral imposition of America’s will over the sovereignty of every government in the world, needs some hard questioning. In fact, it needs to be stopped!

    A more multi-lateral approach should be taken where America is forced to recognize the “international norm” of residency based taxation instead of inserting its hand into your Treasury to take taxes from, and impose penalties on, those Singaporeans it consider to be “its U.S. Person!” Says who?

    Under FATCA, many more Singaporeans than you can know, will be caught up, as well as their non U.S. Person spouses and business partners, to say nothing of accidental Americans that have no idea they supposedly have tax and reporting responsibility to the IRS.

    With the FATCA IGA, their data will be bundled up with complicit approval of your government, and sent off to the International Revenue Service and then made available to the U.S. Homeland Security. FFIs that register with the FATCA Portal are opening the doors for spying on their services.

    Just like folks in the EU are waking up to NSA spying on them, and naturally outraged, it is time the governments of the world begin to realize that FATCA, in addition to other things, is a Trojan horse that provides the US intelligence services the key to your financial systems. Once they have that, they have everything! Why do you want that?

    Here are the many good questions that MP Ted Hsu asked, that you can add to yours…
    Thanks for your interest and keep questioning.

    http://bit.ly/1bq2ifB

    Sincerely,

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