Do you have any suggestions for Mr. Arvay?
You know that with the donations Lynne Swanson and Stephen Kish have retained Joe Arvay to provide a legal opinion on the constitutionality of the proposed FATCA IGA legislation.
@George recently made the good suggestion we are now following up on:
Could you start a thread where Brockers could make comments or observations which you could then hand to the Attorney?
The purpose of this thread is to receive those comments you feel might be helpful to Joe Arvay. In my own experience with lawyers, suggestions from people who have been harmed have made the difference.
If you make your suggestions by March 11, Lynne will coordinate and synthesize them and forward them to Mr. Arvay.
Also, if you are uncomfortable in providing comments publicly, you can email me at canadiancharterchallengefund@gmail.com If you do, please don’t use your real name.
Thanks
I would like to know the legality of Canada sharing banking data with the U.S. on citizens of Canada who are not now nor have they ever been a “U.S. person” such as spouses and children?
Also,
I would like to know what recourse does anyone have if their data is shared over the border when it wasn’t supposed to be?
How wills anyone know if their data was shared in such a manner?
I would like to know if it’s OK to single out local bank managers for “special treatment” and ruin their lives, anonymously of course so they won’t know what hit them? Hey it’s the Canadian way isn’t it?. Is it OK to stalk them, create a dossier on these criminal banksters, get their personal information perhaps by hiring private detectives, find out about their families, maybe even turn them over to the IRS just so they can see what it’s like, and basically use every dirty trick in the book to put the fear of Americans abroad in them? I mean, since we do not have the protection of the Charter can we not just do what we want anyway with no regard? Is it OK to go downtown as a group and OCCUPY a main bank branch and invite the media to the event?
According to section Annexe I, s. (II) (B)(4)(a) of the Canada-US IGA, if a person is found to have US birthplace, they can avoid being reported to CRA/IRS if they can prove they are not a US citizen (eg CLN). But they also must provide a non-US passport and fill out an IRS W8-BEN form.
A non-US citizen is not required to fill out a IRS W8-BEN form.
A former US citizen is a non-US citizen. But they still have to fill out an IRS W8-BEN form with personal information!
I haven’t been a citizen of their country for 35 years and I had/have no financial activity there. This is clearly discriminating against me based on my national origin.
A former citizen must fill out a W8Ben???
What right do they have when someone is no longer a U.S. citizen to request that sort of information?
“What right do they have when someone is no longer a U.S. citizen to request that sort of information?”
LOLOL…….ask Jon Stewart
I don’t know if this is a charter right or not but Canada allowing another country to destroy, financially and mentally, many of its citizens. I think this is akin to a declaration of war! It is also a war on Canada by stealing its assets. The costs of bankrupting Canadian citizens of monies invested in Canada, monies saved for retirement will throw many onto welfare at the Canadian tax payers cost. The government is allowing the US to waltz in and rob our bank accounts. They might as well come in and start droning us, it is only a matter of degree. We have had our sovereignty violated by FATCA and F-ingBAR
March 11 is not a lot of time, but I will definitely take some time out to try to give Mr. Arvay a personal sense of what it is like to be faced with FATCA and CBT at age 50+ having lived, and saved only as a Canadian all my life…things like futility/liability of investing in Canadian mutual funds (pfics), RESPs, TFSAs; no easy way out of US citizenship (amnesty programs, legal and accounting costs to get caught up on filings, risk of penalties); double taxation of pension income and other non-earned income, capital gains on sale of principal residence; marital issues dealing with reporting of joint accounts….etc.
I will expand on these issues and more by Tuesday. Those of us who are directly affected will GET THIS way more than Joe Arvay can. I strongly encourage everyone to take some time to express how this hurts them in their own words!
What Canadian law would allow the CRA to collect unprecedented levels of financial information on Canadian citizens and permanent residents with US indicia and NOT from those without, and would this additional information given to the CRA expose these taxpayers to an unfair level of scrutiny by the CRA itself?
@ Atticus,
Rereading it, I see that the text of (B)(4)(a)(1) actually says “an IRS Form W8,” not specifically W8-BEN (as I wrote in my earlier comment). There are 4 types of W8 forms and it looks like W8-BEN is the one that applies.
I note that the text says “an IRS Form W8 or other similar agreed form.” Well, even if it’s a “similar” form, I’d bet dollars to donuts it will have the same personal information.
And that’s exactly how I feel, as you do, what right do they have when someone is not a US citizen to request that sort of information?
This is critical to strategy: the people supporting the FATCA IGA don’t really believe in it – in the sense that any of them would put their career or reputation on the line.
FATCA was like a bedpan emptied from a 3nd story window onto the unsuspecting head of the Canadian Government. It sucks to be them. There is ABSOLUTELY no upside in this for them: no payoff, reward or reciprocal advantage of any sort. They hoped it would go away of its own accord until the clock ran out and they panicked. There is no quid pro quo, except for the temporary cessation of the threat of extortion – and let’s see how long that lasts…
The folly of this situation is that the banks thought the government would solve their problem, so they failed to protect their interests until it was too late, and government delegated the solution to bureaucrats and tried to keep it under wraps and the media would rather report on Rob Ford’s antics. They all ignored the people who would actually be harmed, and are in a state of denial regarding the impact on Canadian society.
However, those OPPOSED to FATCA are passionate, motivated, angry and energetic. Single issue voters. Classic underdogs. That’s the ticket and the strategy.
I believe that the success of the challenge may rely as much upon the concept of “exposure to harm” as chapter 15 discrimination.
Also, the premise that the FATCA IGA is a logical extension of the Canada-US Tax Treaty is weak. The IGA is totally beyond the Treaty’s original purpose, which was to smooth cross-border trade and avoid double taxation. This is where Tax Treaty expert can make a big contribution to the argument against FATCA. How many singular exchanges of information actually occurred under the Treaty? A few hundred annually.
On the political front, much can be made of how this negates the Tory’s “tough-guy” image: supposedly tough on crime, tough on bullies, tough on cel phone companies, and re-living the war of 1812 via TV re-enactments. FATCA is a trade war, and our government surrendered without firing a shot.
The opposition parties…. they are not necessarily friends. I think of them as sharks. Pure predators, circling until they sense blood in the water and political advantage.
Lynne, Perhaps you could ask for specific input from Professor Christians, such as points raised in the following article and others:
http://www.ifcreview.com/restricted.aspx?articleId=7479
W8ben applies. To non resident aliens of any sort to fill out a w8 Ben if he invests in us investments, it is held by the entity that handles the investments. 30 percent is withheld on interest and gains us less the country of the investment has a tax treaty.
@all,
I believe Robert is correct, non U.S aliens have always had to fill out a W8Ben if they held any U.S. securities. It basically (in the case of say Canadiens under the tax treaty with the U.S.), gives them the right to withold 15% in tax which you could then claim on your Canadian tax return as a Foreign Tax Credit. This is nothing new for Canadians owning U.S. securuies.
As well as the obvious national origin discrimination under Section 15, I hope that Mr Arvay will consider violations of Section 8 (freedom from unreasonable search and seizure) and Section 12 (cruel and unusual punishment).
FATCA requires a warrant-less search of all financial accounts to look for US Indicia, not just those of US Persons, so every Canadian will have their personal accounts searched. With no suspicion of wrongdoing, that would appear to be “unreasonable”.
For the unfortunate US Person discovered by the warrant-less search, they face having their financial details turned over to a foreign government and most likely will be subjected to life ruining demands (FBAR penalties), for having broken no Canadian law. In addition to the financial aspect, many people have already experienced anxiety, depression, panic attacks and all the other emotional trauma associated with being a US Person. This would appear to fall into the category of “cruel and unusual punishment” given that no Canadian law has been broken.
@Robert @Tiger
Won’t the W8-BEN now be required for everyone, even those that open a checking account at their local bank? That is a bit different than investing in U.S. Securities.
My thoughts / contribution: Possible Considerations for Legal Opinion re Canadian Charter Challenge
“Those of us who are directly affected will GET THIS way more than Joe Arvay can.”
I still think John Richardson is our man. Has Joe come on this site? Has he shown and attempt to reassure us at all? I want to see Joe work along side John. In fact I would demand it if I was in a position to. Well let’s see what Joe can do but I said before he would already have much of his opinion formed.
I believe that FATCA can be challenged under NAFTA, chapter 14 financial services.
FATCA imposes reporting obligations on Canadian and Mexican financial obligations which places them at a competitive disadvantage in competing for and providing cross-border financing in the NAFTA area, and constitute a non-tariff barrier to trade in financial services. The lack of reciprocity for similar reporting requirements, makes the US a tax haven to Canadian and Mexican authorities.
A similar challenge should be possible at the WTO under Sector 7, finances.
The US successfully challenged the Belgian income tax practices. The information below is easily accessible from the WTO website.
2 November 1976 INCOME TAX PRACTICES MAINTAINED BY BELGIUM
8. The Belgium income tax system is based on the principle of world-wide taxation of residents and on the source principle as far as taxation of non-residents
The US argued that Belgium tax practices, placed US institutions at a competitive disadvantage
Osgood ,the decision to create a w8ben is the decision of the security house and its appetite for risk and your relationship.. With them. It is Only for income earned from us investments. By non citizens
Some of you commented separately at the CCCF email site about the type of person/situation that might provide the best chance of success in a Charter Challenge.
I know that this has been discussed previously on Brock, but what situation would all agree, public included, that the injustice is so significant and unreasonable, that the IGA legislation has to be killed?
I have given another comment, but of all I said that one significant and unreasonable situation that I would boil it down to is that US citizenship-based taxation (and now with the enablement of FATCA) deems US Persons second-class to any other Canadians, no matter what their ‘national origin’ or no matter their parents or their grandparents ‘national origin’ — although US tax law in Canada (and our country no longer sovereign) will come at a cost to every Canadian to implement and maintain.
US Persons are second-class and not able to conduct their lives as any other Canadian because of (among others)the extreme expense of administration of compliance, extreme inability to save for retirement in every way any other Canadian can and, being labelled ‘tax evaders’ US Persons in Canada are collateral damage of US law. We shouldn’t have to find significant work-arounds to protect our Canadian savings with our ‘US CBT problem’ that causes extreme stress affecting our health and very well-being — some having to hide, scared to be identified, the second-class Canadians we become. Many are claiming reliquishment or renouncing US citizenship and are subject then to IRS criminal investigation: http://isaacbrocksociety.ca/2014/03/01/irs-starts-criminal-investigations-of-renunciants-and-relinquishers/
I am cross-posting these relevant comments here:
http://isaacbrocksociety.ca/2013/12/02/december-2-2013-letter-to-canadas-td-bank-requesting-deletion-of-offensive-sentence-on-bank-website/comment-page-3/#comment-1201249 and http://isaacbrocksociety.ca/2013/12/02/december-2-2013-letter-to-canadas-td-bank-requesting-deletion-of-offensive-sentence-on-bank-website/comment-page-3/#comment-1201445
Under the post “A Letter from John Weston Regarding the IGA – We Need to Educate the MP’s”,
Badger writes, FATCA Education from Allison Christians – Must READ – for MPs and everyone else:
http://www.ifcreview.com/restricted.aspx?articleId=7479
Podcast by Allison Christians:
http://directory.libsyn.com/episode/index/show/mljpodcast/id/2687838
In addition to the fact that I, too, have suffered for two and a half years from severe anxiety and depression because of having learned of FATCA and CBT I am hoping that Mr. Arvay could look particularly into one of the concerns that I put forward in my submission to the Department of Finance. Here is a quote from my document:
“The agreement, from top to bottom, is a blueprint for the detection of “U.S. persons” within Canada’s financial system. This includes the large number of so-called “dual citizens” who have lived in this country for decades and who know no other home. There seems to be a perception that the dual citizen is some sort of fence-sitter who should “just” climb down off his perch and renounce one or the other of his affiliations. (See point #7 below for reasons why that may not be so easy.) In fact, a dual citizen exists simply by virtue of being born in one country and taking up residence and citizenship in another. Many countries in the world, including Canada, allow their expatriates to retain their citizenships when they naturalize in other countries as a simple courtesy that means “you are welcome back any time because we are your family”. Likewise, many countries, like Canada, do not require the official renunciation of a naturalized citizen’s birth citizenship. In the modern, global, mobilized world this is virtually a required stance, particularly amongst developed nations with common hopes of prosperity.
“To deal with the increased prevalence of the instance of dual citizenship in the last century international norms were established. Ironically, my first quote is from the U.S. Department of State Foreign Affairs Manual Volume 7: Consular Affairs:
“’It is a generally recognized rule, often regarded as a rule of international law, that when a person who is a dual national is residing in either of the countries of nationality, the person owes paramount allegiance to that country, and that country has the right to assert its claim *without interference* from the other country.’ (emphasis mine)
“The ‘rule’ referred to above is an expansion on Article 4 of the 1930 Hague Convention on Certain Questions relating to the Conflict of Nationality Laws which is still in effect. My second quote is an interpretation of this same Article by the Home Office of the United Kingdom:
“’…the practical effect of this Article is that where a person is a national of, for example, two States (A and B) and is in the territory of State A, then State B has *no right* to claim that person as its national or to intervene on that person’s behalf.’ (emphasis mine) http://www.bia.homeoffice.gov.uk/sitecontent/documents/policyandlaw/nationalityinstructions/nisec2gensec/dualnationality?view=Binary
“There is nothing in either of these sensible statements to suggest that the matter of taxation is to be considered an exception. In short, in Canada the dual Canadian/American citizen is a Canadian, and a Canadian only! The FATCA IGA contravenes this long-standing international practice. The IGA must plainly state that all Canadian citizens be exempted from FATCA reporting.”