Stephen Kish and Lynne Swanson have reviewed the legal opinion provided by constitutional lawyer Mr. Joseph Arvay on the constitutionality of the pending legislation “Canada-United States Enhanced Tax Information Exchange Agreement Implementation Act”. This act is aimed at implementing the “Intergovernmental Agreement” (IGA) designed to make the “Foreign Account Tax Compliant Act” (FATCA) operative in Canada.
The opinion has also been discussed with Mr. John Richardson, a Toronto lawyer, with whom we now have solicitor-client privilege, and who will be part of Dr. Kish’s and Ms. Swanson’s “litigation committee”.
The lengthy opinion provides in detail the pros and cons of the arguments, and possible outcomes.
There are good arguments that the proposed legislation infringes at a minimum on constitutionally protected rights and freedoms. Nevertheless, there are also arguments that the Government of Canada may employ to counter our position and, we emphasize, there is no certainty that litigation will be successful. Further, any litigation will be hard fought and very expensive. This litigation is not for the faint of heart.
Given the opinion of Mr. Arvay and discussion with Mr. Richardson, we advise that it is our intention to take all necessary steps to commence litigation against the Government of Canada once the IGA implementation legislation is enacted. Moreover, the nature and impact of the unprecedented legislation on all persons in Canada and those throughout the world who will be impacted by FATCA demands that we exercise this option that is in the public interest.
Very significant fundraising will be required.
Stephen Kish
Lynne Swanson
@Calgary411, this also ties into your own story. I doubt he was registered fro Selective Service (“draft”) but regardless of any disability he was still likely required to register.
Hmmm, this is a bonus for your family as it shows that he did not exercise that attribute of USness.
Also for the many others, this is another feather in the hat to state support for a relinquishment. No voting and no selective service registration..
http://isaacbrocksociety.ca/2013/05/31/we-want-to-know-once-and-for-all-for-sure-is-it-true-legal-policy-a-choice-the-us-cannot-force-anyone-who-is-born-outside-of-the-us-to-acquire-us-citizenship/comment-page-3/#comment-367718
That is: FAILURE TO REGISTER AS REQUIRED IS GROUNDS FOR DENYING A PETITION FOR US CITIZENSHIP!
[ Although that clause doesn’t apply to my son as he was born an ENTRAPPED US citizen by birth in Canada to two US parents…unless a “petition for US citizenship” would actually be his applying for a U.S. social security number so that he might obtain a U.S. passport and further march into his own U.S. tax compliance prison, as he cannot renounce nor can I on his behalf. I know my daughter, with the same birth facts as my son’s, had to go through many hoops in order to get her U.S. passport to be able to move to and work in the U.S. for the seven years she was there (before a bad car accident, then exceeding the ceiling of her employer-provided U.S. health insurance package, and continued to pay for medical expenses with her VISA!) ]
http://kc.vanderbilt.edu/pathfinder/resources/page.aspx?id=1134
However, a family member, caretaker (parent, guardian, trustee) or friend cannot help a man (or woman) with a disability renounce his US citizenship if he does not understand the concept of “citizenship”!!
Draw your own conclusions.
Now I know why my husband’s mother had her sons become Canadian citizens BEFORE they turned 18. So they could avoid selective service! In 1980 when they became Canadians you automatically lost US citizenship even if you were a minor.
After they became Canadians she had them legally change their names also. She did not trust the US government at all.
So these days you can’t lose your US citizenship by becoming a Canadian citizen before age 18 but must register for selective service within 30 days of turning 18. That leaves you a 30 day window to exit your US citizenship and avoid selective service. Kind of a trap no? Oh and you’re not allowed to exit your US citizenship to avoid selective service. Bastards!
OMG,
That about sums it up – Bastards!
I think the selective service reminder is an EXCELLENT one. My own motive for becoming Canadian lo these many decades ago was precisely to avoid the troublesome requirement of registration (I knew darned well that they have never actually called a number issued to non-residents when they conduct the draft, but I was young and looking to make a point!). I suspect that registration for the draft is honoured more in the breach than in reality in the homeland, but I confess to having no idea. I would be shocked if ANYONE registers from outside the US though. Canada would certainly be loathe to be sending dual citizens into the US draft machine (not active, but simmering). I think it would be an EXCELLENT idea to get that message into communications with MP’s. I would certainly be putting that under the nose of some journalists.
It is worth underlining that there is NOTHING in US law that inhibits the IRS from sharing the data collected with whomever they choose. This is not information on a tax return (which is, apparently, protected). The tax treaty says a bit about such data not being used for other purposes but guess what, the IGA is not being submitted to Congress and won’t have Treaty standing (and I’d need a US law expert to tell me how enforceable the flimsy privacy protections in the Tax Treaty would be anyway, even if the IGA were approved by the Senate).
One of the reasons that many people from countries that have the draft choose to move to Canada is to avoid their children being drafted into the military. They know Canada has a reputation for being a peaceful nation that rarely goes to war.
Leave it to the Americans to devise a way that Canadian children with US heritage can’t enjoy the same benefits as a Canadian child from Syria!
If the IGA did not state that date of birth would be provided then this would be moot
All I know is that Usa banks only report name address and interest earned and not date of birth
Providing date of birth serves no legit tax function
@ OMG
Canada may have a reputation of being a peaceful nation but that is a false front. Canada is actually more than willing to follow other nations, most notably now the USA, into wars and aggressive interventions. Right now Canada is sending CF-18s to Poland to help the USA taunt Russia into WW3 (worst case scenario) or at least fan the flames of a cold war with Russia. But you and the others are absolutely right, the US draft vulnerability (it can be activated at anytime) is another way discrimination rears its ugly head in Canada. All-Canadian eighteen-year-old and US-tainted eighteen-year-old are definitely not being treated equally in Canada. This is all the more motivation to proceed with the charter challenge.
@George
FWIW date of birth is required on Canadian tax forms (upper right corner of page 1 on T1 General) and is thereby needed for tax purposes in Canada (e.g., for eligibility for age-based deductions). I don’t know if it’s required on US tax forms (but I suspect it probably is). I’m no lawyer, but for all my agreement with you about the outrages inherent in possible use of FATCA reporting to identify male persons’ selective service status in the US, I don’t think there is much or any legal traction to be gained by objecting to or challenging to reporting of date of birth to the IRS as distinct from any of the other reporting. ANY reporting of ANY financial account information on Canadian residents to the IRS on the basis of their national origin, is the legal issue, IMO. But that’s for the lawyers to sort out.
@ Herald – Welcome to IBS! What you have had is what we describe as an “OH MY G_D” momement. As painful as it is, it’s good you now know what you (and hundreds of others) are soon facing. Absolutely, it is absurd. This is going to backfire on ++++ of US both in terms of dismanteling business connections overseas and turning other countries away from the US dollar. You probably know other higher-level business people who will be caught in this deadly gargantuan information-sweep; hopefully you will make it your business to inform them and strongly encourage involvement and donations to our Charter Challenge. Don’t expect any help from the IRS, your MP or your Congressional or Senatorial representative back in the homeland – – except for Rand Paul, they almost all JUST DON”T UNDERSTAND! Keep reading here and learning; we’re all facing this monstrosity in our own way. Sorry if this is hard, but it IS hard and confusing and outrageous and should have been killed long ago, but wasn’t. So can you help us?
I’m not sure if a FATCA report will include a suspected US citizen’s date of birth but I do know that the FBAR ferrets are absolutely anal about date of birth. One year we unintentionally omitted my husband’s date of birth on his FBAR. That prompted the only demand letter we have ever received. It came from the “Chief, Edit & Error Resolution Branch, Currency Reporting & Compliance Division, Department of the Treasury, Internal Revenue Service, Detroit Computing Center”. Along with returning her multi-page form where we filled in my husband’s date of birth as demanded, I sent a rather cheeky enclosure which began …
Dear Madam:
My MOST sincere and humble apologies for neglecting to inform the MOST exalted and almighty Department of the Treasury of the MOST omnipotent and esteemed nation in the universe (namely, the United States of America) of this MOST important piece of information regarding my husband (namely, his date of birth).
How could I have committed such an offence against such a diligent and zealous bureaucracy (namely, The Currency Reporting and Compliance Division)? If even the smallest pillar under the honourable and beloved Internal Revenue Service has been damaged by even the slightest amount by my oversight I will never forgive myself. My only excuse is that I am a mere dot of a person living in an insignificant nation (namely, Canada) which is located to the north of the great nation of the United States of America and I failed to fully appreciate the grave significance of the information I failed so miserably to supply (namely, my husband’s date of birth).
Perhaps, as a Canadian, I should have left the filling out of Form TD F 90-22.l to my American husband but regretfully he does not have the time or the patience to perform this time-consuming yet oh-so-delightful task. I can reassure you, however, that he reviews Form TD F 90-22.l quite solemnly and thoroughly before he signs it and we send it on its way every year to the Department of the Treasury. So my husband bears at least part of the blame for this serious debacle. … And so on for 3 more paragraphs.
So FATCA reports might not include date of birth but if a FATCA report coerces a US citizen in Canada into filing a FBAR (now FinCEN 114), an unfortunate young victim in the selective service age range could end up being threatened with fines and jail time.
BTW, what are they going to call those FATCA reports? What will the acronym be? What will the form number be? In the 144 pages of CRA guidance to FIs I don’t remember reading that … but then I didn’t read all 144 pages.
Is there one /are there several locations across Canada where we could mount a large protest demonstration on Canada Day? Or attend a Canada Day celebration with fliers, handing out to EVERYONE (maybe more than the FATCA Fact-sheet we have – – maybe with some broader discussion of how this will effect the average Canadian citizen?) and info RE the Charter Challenge?
Ottawa? Toronto? Montreal? Vancouver? Winnipeg & Calgary & Edmonton? Other?
Anyone out there have access to free printing?
Anyone out there have good contacts with organizations within the disability communities who could be effected?
Anyone out there in business with business or high-level professional contacts? Anyone with advertising skills? What skills can be donated (or friends with these skills drawn upon) to help move towards the Charter Challenge – – other than being more and more informed about things which make us even angrier? Facts are important but what else can we bring to this effort?
Anyone in the Hamilton, Ontario area want to meet for lunch to discuss?
@LM, I love your enthusiasm. I used to live in Hamilton (Stoney Creek) at the corner of IsaacBrock Drive, and if I still did, would definitely have wanted to meet to discuss. We need more LMs!
@LM
I’m in for a Canada Day protest. I’m in for an any day protest!!! Would love to meet up to plan.
@ Em RE putting hubby’s DOB on the FBAR
LOVE your letter!!!!! Thanks for sharing – – this is the type of in-your-face reply that all of us should emulate!
@LM,
Some of us will meet for a really simple dinner and a chat the evening after the ACA conference on May 2 in Toronto. If you are going to the conference (or not) we could meet then. If you would like to contact me, send an e-mail to:
CanadianCharterChallengeFund@gmail.com
Any others in the greater Toronto-Hamilton etc. area who want to come and talk strategies after the meeting are welcome to come to the dinner.
The conference details are at:
http://isaacbrocksociety.ca/2014/03/29/may-2-2014-aca-sponsored-toronto-forumdebate-on-cbt-vs-rbt/
@ All – In every major city across Canada there are a multitude of festivals this summer. What we need are a dedicated group of individuals in each city (and small town) to go down to these festivals and spread fliers that will IMMEDIATELY catch the eye and give them a humongous OMG moment – – something like
“IN LESS THAN 10 WEEKS YOUR BANK WILL START WORKING AS A DATA MINER FOR THE US INTERNAL REVENUE SERVICE – – COME JOIN OUR FIGHT FOR CANADIAN SOVEREIGNTY” or
“YOUR GOVERNMENT HAS JUST SIGNED AWAY FINANCIAL PRIVACY RIGHTS – – COME JOIN OUR DEFENSE OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS” or
“WITHOUT YOUR CONSENT, AS OF JULY 1, 2014 YOUR PRIVATE FINANCIAL INFORMATION COULD BE HEADED TO THE US INTERNAL REVENUE SERVICE – – WE ALL SHOULD BE OUTRAGED! JOIN OUR CONSTITUTIONAL CHALLENGE TO THIS INVASION FROM THE USA” or
“CAN YOU SPARE A LOONIE TO SAVE CANADA’S SOVEREIGNTY?”
FATCA is going to effect ALL CANADIANS, not just folks with US-tatoos. We need to spread the word as widely as possible! NOW! Rather than gathering in a small group with placards, wearing big Maple-Leaf hats and big buttons saying “US INVADES CANADA ON JULY 1 – – ASK ME MORE” may draw festival-going people into conversation. We could also take these fliers – – and our big buttons – – to the steps of the major newspapers, the main library, just outside the Rogers Blue Jays Centre, the local 4-corners of banks, the local sailing regatta, the community Canada Day Pancake Breakfast. This means some IBS folks need to come together in local groups – – anyone else up to geographically identifying themselves and making plans?
Summer festival season is starting soon – – music festivals, food festivals, Pride festivals (now there would be a group of activists just waiting for a cause) Canada Day festivals, etc, etc, etc…. This is time-sensitive information which requires time-sensitive action before FATCA becomes too entrenched. PLEASE SHARE YOUR IDEAS!!!!!
@LM, I’m in the Ottawa area, and would love to be part of a group to organize something here.
@LM, Darn, we missed an opportunity yesterday, to get all the Canadian pot smokers on our side. That could have lead to some interesting discussions.
http://news.ca.msn.com/top-stories/pro-marijuana-protesters-hit-parliament-hill
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Here’s another group that may want to look at a Charter Challenge:
http://www.change.org/en-CA/petitions/hon-chris-alexander-pc-mp-canadian-government-stop-bill-c-24-don-t-turn-millions-of-us-into-second-class-canadian-citizens?recruiter=32318695&utm_campaign=signature_receipt&utm_medium=email&utm_source=share_petition
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