63 thoughts on “Cross post: Canadians, give your FATCA briefs to Finance Committee”

1. Interestingly, of the submissions so far, many appear to be from law firms related to an intellectual property issue with no obvious connection to FATCA.

   There are 6 submissions related to FATCA–all opposing FATCA–and all appearing to come from people originally from the USA who have long resided in Canada. Some people’s names are easy to recognize as being regular participants in the Isaac Brock Society and Maple Sandbox website.

   My brief will, therefore, appear to be the first from someone who has moved in the opposite direction: from Canada to the USA. As it is my contention that FATCA affects those of us who moved “south” just as much as it affects those who moved “north”, it looks like I may have some work to do to interest groups like the Canadian Expat Association in this legislation.

   (I put “south” in quotation marks because it is not geographically accurate in my case, as I currently live near Seattle, considerably north of where I grew up in Ontario.)

2. For those who would like to read the briefs they are posted here.
   http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=6526468&Language=E&Mode=1&Parl=41&Ses=2

   Ignore all those that are 56 or 58 KB- they are all from the same trademark law firm. Most of the rest concern FATCA

3. I’m anxiously waiting to see everyone’s briefs!

   It seems like many are in the process of being translated.

4. Hmmmm….there are still a lot of missing briefs. I wonder what is taking so long.

5. After reviewing the footage of the Standing Committee on Finance Meeting 35 re FATCA – May 14, http://youtu.be/T8NjUpngfxE , I was struck again by how much the Conservative MP Van Kesteren – who asks about IBS and ‘Loyalists’ does a disservice to his constituents and to all those in Canada by attempting to introduce a red herring issue – re what US citizenship is worth or what it means to those who hold it in Canada – and asks John whether he values his American citizenship. That is immaterial to the FATCA IGA and the issue at hand. Inside Canada, on Canadian sovereign soil, according to the idea of Master Nationality, it is the Canadian citizenship and status that is of most relevance to Canada and to Canadian MPs like Van Kesteren, who are entrusted with a sacred fiduciary duty and duty of care, to serve and protect ALL those within Canada’s borders. And, Permanent Residents Canada have Charter and Constitutional rights as well.

   Some of the Conservative MPs (and the CBA) appear far more concerned with actively rationalizing, enabling and enforcing US laws on Canadians here at home than they are with acknowledging and enforcing the Canadian Charter and Constitution on Canadian soil.

   Several members of the committee and the IGA apologists (ex. the CBA) do not clarify that the category of ‘US taxable persons’ under FATCA and CBT is far broader than that of those deemed to be US citizens, and includes Canadians with no US citizenship, and no US permanent resident status. Van Kesteren raises the ‘privilege’ and ‘value’ of US citizenship – seemingly as some kind of rationale for the US extraterritorially imposing FATCA and US taxation on Canadian citizens resident in Canada. One would almost think he was a US tax lawyer citing and rationalizing Cook vs. Tait ( “… the presumption that government by its very nature benefits the citizen and his property wherever found, and that opposition to it holds on to citizenship while it ‘belittles and destroys its advantages and blessings by denying the possession by government of an essential power required to make citizenship completely beneficial.’…” http://www.law.cornell.edu/supremecourt/text/265/47 ).

   MP Kesteren and his family are not to be forced into answering questions about their Dutch origin, nor extra-territorially taxed on the basis of their parentage, birthplace or their prior or additional nationalities ( http://en.wikipedia.org/wiki/Dave_Van_Kesteren http://en.wikipedia.org/wiki/Dutch_nationality_law ), nor set apart in Canadian legislation for special treatment of their personal and financial data by the FIs, and the CRA based on Dutch background, yet he seems to be set to offer a special dispensation for the US government to burden Canadians of American national origin, birthplace or parentage. MP Adler also does not have to identify and attest to his or his family’s prior ethnic or national origins to his bank, nor is it considered germane to his relationship with the CRA. Their actual legal residence is what counts.

   I would have thought that MP Adler who is described on his own website as; “..committed to uphold the principles of democracy, further the cause of human rights and promote the rule of law.” ( http://www.markadler.ca/about/ ) might have some concern for whether the Omnibus Bill C-31 is the right place to insert (hide) a piece of legislation to enable an intergovernmental agreement of this magnitude and consequence, or whether the FATCA IGA he voted for furthers the human rights of those living in Canada – or is even congruent with our Charter and Constitution. The Canadian public is mostly unaware of FATCA, no robust Parliamentary examination has taken place, and no cost-benefit analysis done. They are not even able to come up with a figure for how many Canadians will be directly affected. Canada is not a tax haven, and we are not tax evaders or money launderers; I doubt that the majority of us would have even ever met one ( http://o.canada.com/news/national/toronto-mp-adler-settles-dispute-with-convicted-money-launderer ).

   I want to note here that not only is Conservative MP Van Kesteren on the Finance Committee, but he was recently named “chair of the Southwest Ontario Caucus” by Harper. This means that on the FATCA issue, he will be liaison to Harper, and the Caucus he is chair of encompasses a large swath of the border communities in SW. Ontario who will have many constituents who are/were Canadians of US origin or of US parentage – as well as businesses and other US relationships which will be impacted by the US FATCA witchhunt. See the members of the SW Ontario Caucus http://findaconservative.ca/caucus/cpc-caucus/ontario/southwest-ontario-caucus/ .

   See; ‘Area MP Named Caucus Chair’
   By Mike James on March 28, 2014,
   “The MP for Chatham-Kent-Essex will act as the liaison to the prime minister on pressing issues stretching from Windsor to Niagara Falls.

   Dave Van Kesteren has been named chair of the Southwest Ontario Caucus by Stephen Harper. “There’s a number of caucus’ within the greater caucus,” says Van Kesteren. “What takes place is dialogue and communication so when we move forward with the Conservative Party, when we enact bills, when we talk about new legislation, all of that is discussed. That, and of course, any concerns that we might have……..” http://blackburnnews.com/chatham/chatham-news/2014/03/28/area-mp-named-caucus-chair/

6. There have been some more FINA briefs posted today: Bell, Davies, Hall, Smithson, Stuart, Swetlow. (Hope I didn’t miss any.) I’m about to read them now but I just want to say thanks to these briefers (some are Brockers too).

   PLEASE committee members (House and Senate) listen to those who are affected by the FATCA IGA not just those who have lobbied for its implementation and those who are facilitating its implementation.

7. @ All
   I just finished reading the latest FINA briefs and I just can’t stop clapping. They are all so good. 🙂 Now I can go out to tackle my gardening today with a spring in my step.

8. @Em, I’m reading (and re-reading) the submissions. This one is particularly articulate and well conceived and conveyed, and a very useful inspiration and model for anyone who is having trouble thinking about their submission;
   http://www.parl.gc.ca/Content/HOC/Committee/412/FINA/WebDoc/WD6526468/412_FINA_C-31_Briefs%5CSmithsonKarenSuzanne-e.pdf

9. Don’t forget to sign this petition;
   (you can choose for it not to display your name online).
   http://www.thepetitionsite.com/takeaction/335/123/518/
   Conservatives: Remove FATCA from the Budget Bill

   author: New Democratic Party of Canada
   target: Stephen Harper’s Conservatives

10. Thank you for informing us about this petition, Badger. I put a link to it under “Take Action” in the sidebar.

11. @badger. I agree. Very well articulated. Once of the best submissions from a lay person.

12. @ badger
    Yes, that one caught my eye too. Karen Smithson lays out clear recommendations which I truly hope the committee reads. She summarizes this way:

    Given the enormous implications, for Canada and Canadians, of the FATCA IGA I recommend:

    1. that the following amendment be adopted: “Notwithstanding any other provision of this Act or the Agreement, for all purposes related to the implementation of this Act and the Agreement, ‘U.S. Person’ and ‘Specified U.S. Person’ shall not include any person who is a Canadian citizen or legal permanent resident who is ordinarily resident in Canada.”

    2. that the language of the IGA be amended to clarify the precise nature of the exemption of registered accounts so that it is clear that these accounts, FATCA-exempt though they may be, still must be reported annually to the IRS by the compliant individual on his American tax return.

    3. that the IGA should explicitly state that financial institutions must accept a Canadian passport or certificate of naturalization as sole proof that the bearer is not an American citizen.

    4. that there should be a section in the IGA which specifies precisely what the various concerned agencies have the right to do and what they do not have the right to do.

    5. that the FATCA IGA be removed from Bill C-31 to facilitate thorough study and consideration of the document by all members of the House of Commons.

13. FATCA apologists using their bully pulpit again; ‘tax practitioner’ Moody (partner of Roy Berg who appeared before the Finance Committee) weighs in to promote (again) their firm’s praise and support of the IGA http://www.moodysgartner.com/fatca-a-canadian-perspective-commentary/ while dismissing as misguided the opposition who cite the Charter, Constitutional, sovereignty, and other considerations against FATCA – to be enforced on our soil by our own government of Canada. He says; “….sometimes the loudest opinions are inaccurate, incomplete and, in the FATCA world, inflammatory….” because he “lives in the ‘real world’ ” and thereby seeks to discredit those who raise objections and raise the issue that Canadian laws, Canadian rights, and made-in-Canada values and social policy (ex. RBT, NOT CBT) should reign supreme on Canadian soil – over US attempts to export and extraterritorially enforce their US domestic law, and impose unwarranted US extraterritorial economic sanctions so punitive as to qualify as extortion.

    My bad, I thought the Canadian Charter, Constitution, national sovereignty, and the best interests of Canadian society were an overarchingly important part of the ‘real’ world. And, just exactly what is the “FATCA world”? I live and am a citizen in Canada. Where is “FATCA world” where FATCA should reign supreme? FATCA was made in the US – and as a domestic US law should apply to the US only. OOPs, I forgot: US banks don’t want to comply with it, Texas and Florida bankers are mounting legal challenges, the US Treasury’s ‘reciprocity’ is merely ‘aspirational’ and provisional, and their IGAs may not even be legal, and possibly exceed the IRS and Treasury’s power and authority to enter into – by bypassing Congress. Is that “FATCA world”?

    Whether there’s any money or profit to be made in promoting my worldview or not (that Canadian laws, rights and national sovereignty are more important than surrendering to a foreign nation’s forcible extraterritorial imposition of its own self-interested domestic will via domination and unwarranted sanctions imposed via might) – well, that’s another question entirely. But one I think needs to be asked of those who so loudly and repeatedly and publicly support the IGA and seek to discredit any who criticize it. Who profits in “FATCA world”?

    FATCA may very well abrogate NAFTA provisions ( http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2433198 ). Is that ‘real world’ enough? Is it ‘inflammatory’ to raise trade and economic sanction issues too? Is opposing the FATCA IGA by relying on and citing the scholarship of Prof. Cockfield and Christians; “inaccurate, incomplete,” and “inflammatory”? How about relying on the expressed concerns of the CCLA? Or the Privacy Commissioner? Are Canadian lawyers and experienced MPs like Murray Rankin also “inaccurate”, “incomplete” and “inflammatory” because they raise rational reasoned and informed objections and criticize the IGA? How about Constitutional scholar Hogg? What about MPs like Elizabeth May, Ted Hsu and Scott Brison – and others?

    Moody says “FATCA and the IGA do not cause data exchange to be a new matter. ”
    No? The scope and nature of the data exchanged is quite different under FATCA. There is no current collection or reporting by the Canadian government via the CRA to the IRS on the balances, transactions, deposits, withdrawals etc. Canadian held accounts of Canadian RESIDENTS to the IRS. There is no requirement for FIs and NON-FIs to scour ALL their accounts – which are overwhelmingly those of Canadian citizens and residents, in order to identify every single one as to their citizenship status in regard to their ordinary bank accounts and ferret out those on the basis of US citizenship or US person status or US indicia. There is no current requirement or reason for the CRA to do so. That is why the IGA and the enabling legislation is designed to try and override existing privacy, Income Tax Act and any other obstacles created by current Canadian laws.

    Whose opinions and knowledge of FATCA should we rely on? That of the testimony of experts like Christians and Cockfield, and Hogg or of those with obvious vested commercial interests in the compliance and financial industry?

    Should we bow to and adopt the views and values of those in the compliance industry who make their fortunes from the escalating compliance crisis that the US FATCA IGA provokes for > 1 million individuals and families – as well as associated businesses in Canada, rather than those MPs and experts named above? Or should we be ruled by the bankers and investment industry who have lobbied behind the scenes so that they don’t have to deal directly with the IRS, and can download liability and more of the implementation costs to Canadian taxpayers and accountholders?

    Of those affected, Moody states; “….. there is a solution to their plight: renounce their US citizenship. Admittedly, this is easier said than done, but renunciation with professional help is likely the solution if they are concerned about being disclosed. Yes, I am sympathetic to “accidental Americans” but the simple fact is: “it is what it is.”.

    And here is “what it is”: handily, Moody’s now offers that professional help (which is a more recent niche service for them) for a steep fee to those who seek the remedy he cited as the only one other than compliance (which he is also very happy to help you with for a steep fee). And for those Accidental Americans in Canada, and the others who make up the million or more in Canada who can’t afford steep compliance industry fees, like the Moody’s rates? And what of those who can’t afford to brave the potential destruction of their legal local Canadian savings if subjected to the draconian US tax and reporting consequences potentially at issue for either compliance or for renunciation? What should they do?

    Repeat to themselves Moody’s comment – “it is what it is”. Give up, shut up about FATCA, surrender to the US, lose what may be thousands or even tens of thousands of hard earned legal local Canadian savings to compliance costs, US tax preparation accounting and legal fees, i order to become or remain compliant, or become compliant and renounce (or renounce and go for a CLN without, and take the consequences)?

    Are those who seek to exercise their democratic rights as citizens and residents in Canada – and who participate in decisionmaking by critiquing and criticizing the Canadian IGA seen as simply an inconvenient obstacle to the self-interests of the compliance industry (as well as of the Banksters and their kin like the IIAC)?

    Democracy can be so messy that way, when ordinary citizens, taxpayers and accountholders try to have their opinions heard too, and their rights and interests protected – even when it gets in the way of profit.

    What are the vested interests that inform the pro-IGA positions presented to Parliament?
    For example, in weighing the comments from members of the compliance industry – how should we view the fact that the US crossborder tax and law niche has expanded rapidly over the last years since the US FBAR and FATCA enforcement jihad started? Firms have expanded since 2011 – things are looking up – FATCA and US crossborder tax compliance looks to be a growth industry (“……. in this world nothing can be said to be certain, except death and taxes.” — Benjamin Franklin, in a letter to Jean-Baptiste Leroy, 1789″ http://en.wikipedia.org/wiki/Death_%26_Taxes.”)?

    The mention of data exchange in the context of OECD Common reporting is a red herring too, because as we know, unlike FATCA, the OECD has specifically stated that their efforts are to be based on RESIDENCE NOT CITIZENSHIP/STATUS. And, UNLIKE FATCA, the agreement is at least in description to be multilateral – not a unilateral only, Made-in-the-US CBT-based initiative.

    Parse this blog post – it is full of indicators of the ingredients of their core message – one crafted in order to promote and rationalize support for the Harper government enforcement of a US law in Canada – and its entirely obvious and predictably destructive consequences on the legal local savings and assets of Canadian citizens and legal residents of Canada.

    We will see more of these same claims and deliberate framing of the issue – similar to what has already been promulgated in comments by Conservative MPs and representatives of the Harper government.