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
WhiteKat,
As well, this important NZ submission (replacing Canada for NZ): http://isaacbrocksociety.ca/2014/03/01/what-fatca-really-means-for-mr-mrs-or-ms-middle-class-countryman-whatever-their-country/
If you really understood FATCA you would not support it!
http://isaacbrocksociety.ca/2014/02/14/if-you-really-understood-fatca-you-would-not-support-it/
Excellent comments from Maple Sandbox to be read here and included: http://maplesandbox.ca/2014/do-you-have-ideas-for-legal-opinion/
I agree with atticus. I am a Canadian born and raised here, married to an accidental American. I don’t want MY bank information sent to the IRS. I know it is a joint account but I don’t care. My wife had Canadian parents and was registered as a Canadian born abroad,after her birth in the U.S. So her information should not be sent either for that matter,but mine definitely should not be sent. I feel that I have grounds for a law suit. Canada should not be throwing ME under the bus.
@osgood,
On the W8BEN you certify, “under penalties of perjury”, that you ARE NOT a U.S. Person. It is used to claim Tax treaty Benefits. If you are a U.S.Person you DO NOT use this form.
Osgood wrote
That’s exactly my issue with IRS form W8-BEN. I’m aware of that a W8-BEN is used for a non-USC investing in US securities. I have never filled one out, and was never asked to do so, because it has never been required for the reason that a person was born in the US. I have always been treated like any other Canadian citizen.
I believe the IGA and it’s enabling legislation would be the first time Canadian law specifically requires a person to fill out a W8-BEN because of where the person was born. Not the same thing as requiring people investing in US securities to fill out an IRS form.
If the Canadian Government were to require all Canadian citizens to fill out a W8-BEN form and provide specific personal information in order to bank and invest in Canada — which the IGA does not — that would be another issue, but not national origin discrimination.
The IGA states it requires this only of people with a US birthplace. So, a Canadian citizen born in Canada or most of the world is not required to fill out an IRS form. However a citizen of Canada, born in the US, is. I consider that national origin discrimination.
Another aspect of this situation worth examining is how Canada must now begin to take steps to inoculate itself and it’s citizens from the threat of US persons in Canada. Until the IGA was introduced, those threats had not fully materialized, so by entering the IGA, the US and Canada have exacerbated the problem of the US person in Canada, one that did not exist at the banking level prior to the IGA.
By entering into an IGA, Canada has made it nearly impossible to be a US person in Canada. Someone should complain to the US State Department about Canada’s discriminatory behaviour.
Thanks to the IGA, US persons are now a problem to be solved in Canada. What happens when one of those “problems” happens to be a Canadian citizen? Is Canada now forcing US citizens to renounce their US citizenship?
Right on, bubblebustin.
And what if there is no way out, i.e. renunciation is not an option at any cost for those with a ‘mental incapacity’ such as a developmental disability or age-related dementia, entrapped into a US citizenship. Not even a parent, a guardian or a trustee can renounce on such a person’s behalf, even with a court order. How will Canada deal with these, their most vulnerable? Mr. Flaherty has said we should discuss our problems with the US, not with Canada.
@All.
If you have what you think is an important and valid legal point (particularly pertaining to the Charter of Rights and Freedoms as it applies to the IGA), I’d like to suggest that rather than post your point on this thread or any other public forum, instead do as IRSCompliant has suggested and email your point to the following address, with a subject header indicating this is a point you’d like passed on to Joe Arvay, the lawyer
canadiancharterchallengefund@gmail.com
At this point, given we’re getting a legal opinion and heading into possible litigation, I think it would be a bad idea to show any good cards to the opposition by posting them publicly (the opposition who, I suspect, probably are monitoring this and several other websites).
Just a thought.
I’ve passed two legal arguments re the Charter to that email address already. I’m not posting them here.
Regarding earlier comments re form W8-BEN — which is referenced in the Agreement solely (as far as I’ve noticed) in the context of also providing a copy of a CLN and a passport or citizenship certificate showing non-US citizenship:
unless I’m missing something (always a possibility), as a CLN holder and in the very unlikely event my financial institutions think they have US indicia on me, I don’t have a problem completing that form. The instructions make it very clear, as does the penalty-of-perjury signature at the bottom, that anyone completing that particular form is certifying they are NOT a US person. The only personal information I would provide on that form would be my name, address, Canadian citizenship, and date of birth. ALL that information (except in my case, given that it was issued to me about 35 years ago, my address) is already on my CLN anyway and likely would be on yours unless you’ve changed address since you got the CLN (and your financial institution is going to have your new address anyhow). It don’t have a SSN nor a TIN nor will I under any circumstances ever apply for either of those, so those fields get “n/a” penned into them. Though it would stick in my craw to fill out any IRS form, it’s my understanding this form doesn’t go to the IRS it goes to the financial institution and stays there on file (see the instructions for the form), it isn’t telling my financial institution a single thing I’m not already giving them with my copy of my CLN (and they also have my birthdate anyway from my driver’s license and my account application as well probably). Frankly I can’t get too hot and bothered over that form. Unless, as I say, I’m missing something (always possible, I freely admit, I’m not perfect …)
My advice to personal friends who are affected by all this monstrosity is, concentrate on those things that are real problems and issues, and don’t get distracted by things that don’t really matter a damn in all likelihood. There are enough real worries in this morass without creating new ones needlessly.
@ Schubert
You have a good point. If I can think of something I’ll do that. I’m not likely to come up with anything that Joe Arvay and his staff won’t come across in their research though. I had never been involved with anything requiring a legal mindset before this F-bomb (as bubblebustin puts it) was dropped into what should have been my fairly secure retirement and reduced it to a heap of uncertainty.
@ Schubert,
It appears, according to the Legislative Proposals Relating to the Canada-US Enhanced Tax Information Exchange Agreement, s 2(1), that they will not accept “n/a” for SSN/TIN. I’m aware that they are supposed to only keep this information on file at the bank and it’s not horribly intrusive information, but despite that I feel that having the Canadian govt legislate separate procedures, or separate anything, for certain Canadian citizens solely because of their place of birth, is not acceptable.
@ Schubert,
That is a good observation about using the e-mail address for comments/observations instead of posting online . Wish I’d thought of that before I posted. I think that what I posted about is probably an obvious point of contention anyway, and you can’t unring a bell — but I shall send any other points directly to the e-mail address.
@pacifica
I understand what you’re saying, and I noticed that particular proposed legislative change, BUT … that legislative proposal pertains (I think) to a requirement to provide a SSN or TIN to a financial officer who is required to make an information return (in your specific case). If you are not a US person, because you have a CLN, they are NOT required to make an information return on your account and hence have no business asking or expecting a SSN or TIN on that form, as far as I’m concerned. And no way would I every apply for either of those things solely for the purpose of filling out their bloody form, and if they try to fine me $100 I’ll contest that in small claims court or wherever. Or refuse to pay and have my day in court that way. I don’t believe a Canadian court would require any Canadian citizen who is NOT a US citizen to apply for a US SSN or TIN in such a case, it would be utterly absurd.
If they want my SIN, they already have that on file as it’s required for opening any financial account in Canada. That’s all they get from me. Assuming this even becomes an issue in my case, which I think unlikely.
I agree that it is unacceptable that Canadian citizens of US or any other origin be treated separately like this, but that’s the whole point of the Charter challenge under Section 15 and goes way beyond this particular form.
@ Schubert,
No reason they’d be required to make an information return in my specific case any more than in yours — for the same reason — and I agree with you that this goes way beyond the particular issue of (B)(4)(a)(1). I was struck by that section as it seems so clearly based on national origin, since there is no citizenship (or even “US personhood” per IRS definition) involved in it; only place of birth to trigger ss. (2) and (3). But I absolutely agree there’s a lot of other issues in the IGA and proposed legislation.
Here’s an edited excerpt of my IGA legislation comment submission.
I acknowledge Shubert’s comment regarding playing cards closer to the vest.
However any IGA comment submission is part the public record and (like the Peter Hogg comment letter) can be accessed by anybody. So may as well give everyone here the info as well. In the long run, I believe that an “open-code” approach will win.
SUMMARY of A CASE AGAINST CANADIAN FATCA IGA
One case claim against the proposed FATCA IGA legislation: an egregious case (1) and the summary argument regarding that case (2).
Implementing the IGA would violate the Canadian Charter of Rights and Freedoms. Further, its effects on the economy and social well-being of Canadians are far-reaching, unpredictable, harmful, and irresponsible.
My comments present a single argument based on the FATCA IGA’s effect on a single Canadian citizen – “Border Baby” – who due to medical necessity was born in Buffalo NY, and is considered a so-called “U.S. person under FATCA and thus will have their rights as a Canadian citizen abridged due solely to place of birth.
1) The Egregious Example
“Border Baby” is Canadian citizen born in U.S. hospital because their Canadian mother was referred there for high-risk pregnancy during a nursing shortage in the 1970’s. “Border Baby”, born in a Buffalo hospital to Canadian parents, is a Canadian citizen at birth under Canadian law.
The FATCA IGA victimizes this Canadian, even though they returned to Canada within days of being born, and have no U.S. economic activity or residential presence. This is because under FATCA’s foreign law criteria, “Border Baby” is also a so-called “U.S. person” and life-long “U.S. tax resident.”
In ultimate and net effect, the FATCA IGA subjects this Canadian citizen to harmful discrimination and loss of financial privacy because they were born in a U.S. hospital due to medical need. Moreover, if they were born in any other foreign country they would not be subject to FATCA.
Why should Canadian citizen “Border Baby” be exempt from equality of treatment under Canadian law because their medically necessary foreign birth occurred in one particular country?
2) FATCA IGA Violates “Border Baby’s” Rights as a Canadian Citizen
The FATCA IGA requires banks and other Canadian financial institutions to seek “unambiguous indication of a U.S. place of birth.” in account holders’ records and documentation upon account on-boarding to determine if an account holder has a U.S. place of birth and thus is a so-called “U.S. person.” “Border Baby” cited above is a so-called “U.S. person” or “U.S. tax resident” under the FATCA IGA and suffers a discriminatory and irreparable loss of privacy, even if they never left Canada since returning from their singular birth event abroad.
The definition of so-called “U.S.-person” or “U.S. tax residency” based upon a U.S. place of birth is “fruit of a poisoned tree” under Section 15 of the Charter. And that poisoned tree is national origin discrimination.
It is remote and dubious to claim that a Canadian citizen who was born in the U.S. decades ago, and subsequently had no ties of residence or economic activity there, is somehow a “U.S. tax resident.” This is a remote, unusual, dubious, and harmful claim, imposed solely by the laws of foreign state.
· It is remote because the definition of so-called “U.S.’ person” is based solely on foreign law and imposes a foreign state’s discriminatory definition upon certain citizens of Canada;
· It is unusual in that it deviates from the tax resident definition of Canada and every other nation excepting Eritrea;
· It is dubious because the claim is discriminatory and based solely upon birthplace or ancestry, as opposed to actual economic activity or residency; and
· The claim is harmful in that it degrades the privacy and dignity of thousands of Canadians affected who have not violated any Canadian law, solely due to their having a U.S. national origin or place of birth.
The legislation enabling the FATCA IGA will violate the fundamental equality rights of thousands of law-abiding Canadians and their families, causing irreparable harm and distress across the social fabric of Canadian society. The potential for harm is significant, the claims of the foreign law FATCA are unusual and dubious, and the violation of Charter equality protection is blatant. Any so-called reciprocal benefit to Canada is un-defined and far out-weighed by the potential for harm and violation of the fundamental right of all Canadians to equal treatment under law, regardless of national origin.
NB: Some may say “Well ‘Border Baby’ can renounce their US citizenship.” Let’s add another factor to the argument: unfortunately “Border Baby” was born with a congenital mental disability that makes it impossible for them to comprehend the concept of renouncing US citizenship. Their parents cannot renounce on their behalf. So now, due to their place of birth AND mental disability, they cannot escape to harmful imposition of the FATCA IGA by ANY means, because they have a US place of birth AND cannot present their bank with a Certificate of Loss of (U.S.) Nationality.
W8 Ben ..does it cover cap gains or just dividends?
On existing accounts page 14 You can avoid supplying bank with TIN, Can You confirm with lawyer this is correct? Does this prevent the $100 fine?
Article 3
4. Notwithstanding paragraph 3 of this Article, with respect to each Reportable Account that is maintained by a Reporting Financial Institution as of June 30, 2014, and subject to paragraph 4 of Article 6 of this Agreement, the Parties are not required to obtain and include in the exchanged information the Canadian TIN or the U.S. TIN, as applicable, of any relevant person if such taxpayer identifying number is not in the records of the Reporting Financial Institution. In such a case, the Parties shall obtain and include in the exchanged information the date of birth of the relevant person, if the Reporting Financial Institution has such date of birth in its records.
I would also like to know how the US is allowed to co-opt Canadian only spouses and their assets and I would also like to know about the legality of the “signatory authority”, which essentially opens up the financial information of breadwinner Canadian spouses, Canadian employers and organizations like Girl Guides, hockey and soccer associations and even political parties (I am a board member for the Liberal association in my riding – not the treasurer – but if I were, would that be reportable and how does the Charter view that? Simply having access to someone else’s money does not make it mine nor does it make it EARNED INCOME.
Regarding inaccurate W8Ben (perjury?) can you confirm with the lawyer that Canadian courts will not enforce US tax rules? So as long as you do not cross the border no worry of perjury. Of course if you cross the border in the future with a US birth place, they may check your tax records? They do not even need an IGA to do this.
I would like an opinion on the issue of any joint account of a US person with a spouse who has never been a US person but always a Canadian citizen (and who has contributed the most to the assets in the account), being considered a reportable account to the IRS. Such a policy directly affects Canadians who have never had any obligation to the IRS. How could our government let such a provision in the IGA stand? It is totally outrageous, imperialistic and arrogant in the extreme.
@IGA_comments_exerpt
Thank-you for telling my story better than I could myself. Other than the fact it wasn’t a medical necessity that found my parents in Buffalo, my situation is identical to the example you give.
My parents were passing through Buffalo when my premature birth became imminent. I resided in an American Hospital for five days.
@ Cheers Big Ears
Here is a banking story you will find interesting
http://www.infowars.com/this-world-bank-insider-will-blow-you-away-there-is-a-huge-global-conspiracy/
A little bit off subject but I don’t know where to post it, but I just read about this site
https://www.change.org/
from what I understand, several petitions went viral on the net and actually changed things. Maybe something about CBT, FATCA, etc…might do nicely there? Imagine US treatment of expats going viral!!!!
“So as long as you do not cross the border no worry of perjury.”
Uh so what? The so called crime of perjury was committed in Canada in a Canadian bank not in the USA and try as they may they are not going to be able to extradite anyone because the crime must occur in both countries. Let Canada prosecute it and open a can of worms. If anyone is charged going into the USA they have to give you a trial and produce witnesses to the perjury? Getting a bit complicated but we can rest assured that Obama is mentally ill as is McCain, Clinton hey most of them. Putin is an angel compared to western dictatorships. As soon as that neanderthal Obama puts sanctions on the Chinese will join with Russia and not only turn off the energy but sell all their USD holdings and the crash will be felt like a giant meteor hitting Earth. Bring it on.
We have all been criminalized and ostracized so start acting like it….stop obeying the law period. When we have equal protection under the Charter of Rights then start obeying the law again. If we go down unjustly and unfairly then we are the hero’s. If my banker asks me any such questions that break the law of the land here my response is going to be “May I have your business card and can you tell me where you live”? I see nothing wrong with asking these questions designed to reverse intimidate them. Are they allowed to have private info on us but we are not allowed to have their information under the “Know your Bankster” rules?