On July 2 2014 my understanding is that Canada’s banks will be asking (at least) new account holders questions and employing a variety of approaches to establish U.S. personhood. These questions will violate Canada’s Charter Of Rights and other laws. Many of us also wonder whether the Silent Majority out there feels that such questions have no consequence.
Coming to a Canadian bank near you?
We need to know the actual questions and approaches and are focusing first on questions about U.S. personhood that will be asked by Canada’s major banks when Canadians open a NEW PERSONAL CHEQUING account after July 1. I suspect that different banks may ask different questions.
When you have this information, please provide in your comments these questions to be asked and I will update the top of this post.
[Please also read the disturbing comments below from @Pollyanna, who reports that one Canadian bank actually used information provided in casual conversations with the account manager to help establish whether the account holder is a U.S. person.]
My local Canadian bank branches provide this information on U.S. questions asked or not asked when opening a new account (this info may all be incorrect; please correct):
SCOTIA BANK: “Are you a U.S. person for tax purposes?”
http://www.scotiabank.com/ca/en/0,,6098,00.html
TD BANK CANADA TRUST: “Are you a U.S. citizen” AND “Where were you born?”
TD’s web information page: http://www.td.com/fatca/index.jsp
See: LM Correspondence with CustomerCare, TD for others to consider in relation to their own FFI’s web information and their relationship with their FIs.
HSBC CANADA: “Do you hold multiple citizenship” AND “What is your place of birth”
http://www.expat.hsbc.com/1/2/hsbc-expat/services/expat-tax/tax-matters/fatca?WT.ac=HBIB_14_5_29_home_small_pro_FATCA_Find_out_more
NEW HSBC information consent
CIBC: Local branch will receive info July 2.
Note: the link below is for CIBC World Markets, which deals with Wholesale Banking (Corporate & Institutional) as opposed to Retail Banking (Personal & Small Business). We have yet to see a CIBC FATCA page specifically written for Retail Banking clients. Perhaps as of July 2, once local CIBC branches receive info, there will be such as page on the CIBC website.
http://www.cibcwm.com/cibc-eportal-web/portal/wm?pageId=fatca&language=en_CA
BMO: “Do you have any other citizenships” (tentative per @Anne Boleyn)
http://www.bmo.com/home/about/banking/foreign-account-tax-compliance
RBC ROYAL BANK:
http://www.rbc.com/aboutus/fatca.html
I would be very skeptical of this information:
“If you open a new account and provide two pieces of ID that are not U.S. tainted and do NOT INCLUDE A CANADIAN PASSPORT (e.g., Canadian driver’s license and social insurance number are ok) and the bank has no other evidence to indicate that you are a US person (e.g., you never told the bank by mistake) no U.S. questions will be asked.
However, should you PRESENT A (TOXIC) CANADIAN PASSPORT at the time of opening an account, YOU WILL BE ASKED whether you do or do not have a U.S. place of birth.”
The way to stop the questions from being asked is to go to:
Wow, shouldn’t the question been marked “optional”?
…it’s like asking someone their race, and just as offensive!
@Bubbles, or how about;
1. Are you baptised?
2. In what city/country were you baptised?
How about your parents — were they baptized?
Silver birch. You ask Who will have me? Lots of FI s will happily accommodate you. I am a retired doc formerly with MD management. If you care to discuss this off line, ask admin to give you my email.
I was at my local Kawartha Credit Union the other day where I do NOT have an account and decided to make some inquiries in my effort to determine their FATCA position. I asked them to show me an application form for an investment account, for instance a TFSA. I was shown an application on-screen, none of which appeared to have any questions about US-Personhood. I proceeded to ask if there are any other applications or forms required. I was informed that I prior to a TFSA, I would have to open an “account” at the Credit Union. I asked to see that form. Still, no question re. US personhood. I’m starting to think this is good! Asked to see the list of requirements for opening an account. They provided a list of acceptable ID, for which I would need to provide 2 pieces of ID from the list. I reviewed the list and noted, “I could use a drivers licence and a major credit card, no?” The answer was “Yes”. At this point I’m happy, until she drops the bomb–that unless one of the pieces of ID included a birth certificate or a passport, that I’d have to sign a self-declaration for US Personhood.
Of course, I ask for a copy of their “self-declaration” to which I was informed they can only show me on their computer screen. I was not permitted a hard-copy. Instead, I asked her to leave it on the screen as I write down the necessary information. Here is how it is worded:
Are you a US citizen (US person) for tax purposes (US persons include individuals who are a US resident or citizen) YES or NO
If YES, please provide your T.I.N.
Another question asked:
If you reside in Canada, are you a US citizen?YES or NO
If YES, please provide your T.I.N.
Then, at the bottom of the screen in very teeny tiny text, there’s a paragraph that reads:
If no T.I.N. is provided, you must apply with the US government to get one and provide it to the Kawartha Credit Union within 90 days
I asked the question, “Exactly what will you do with my information should I provide it?” To which she said it be sent to their head office and then she presumed they sent it to FATCA (I giggled…..a little). I couldn’t help myself, I let her know that it would go to our CRA and they would forward it along to the IRS, the constitutionality of it being challenged right now. Red-faced, she had no response. She asked if I’d like a package describing how to open an account and I said sure. Took it home, read it, and nowhere does their marketing material indicate that opening an account would require US Person self-certification without a passport or birth certificate.
The question that comes to mind is, if you do not provide a TIN within 90 days, what will they do with money deposited in that account? But more importantly, it leaves me with the knowledge that the local credit union is no different than the local Big Bank.
@CanadianGirl, but they did not ask POB and that is good.
@CanadianGirl: Thanks for digging so deeply to get that information. I am in the process of closing out all my accounts with TD and moving them to a credit union that has made it clear they have no interest in knowing where I was born. They did not do any follow up for a declaration of U.S. personhood.
Kawartha is an example of why it is so important that we find out which credit unions are Local Client Base. Pat Canadian has done significant research in B.C. WhatAmI has provided information on some Manitioba credit unions. Schubert has checked out Alterna.
Are there others out there who are willing to do similar information gathering in other provinces?
JoeSmith: I know you strongly believe credit unions are a better option. Are you willing to check out several credit unions for us. Schubert gave some examples of the types of questions to ask and Pat Canadian gave an excellent synopsis the status of several B.C. credit unions
http://maplesandbox.ca/2014/are-other-canadian-credit-unions-being-as-responsible-about-fatca-as-vancity/comment-page-3/#comment-221775
Credit Union Central has advised me they are not keeping records on which credit unions are Local Client Base (I don’t understand why they aren’t all doing it and communicating it clearly like Vancity did.)
Credit Union Central has advised me they are not keeping records on which credit unions are Local Client Base (I don’t understand why they aren’t all doing it and communicating it clearly like Vancity did.)
http://maplesandbox.ca/2014/are-other-canadian-credit-unions-being-as-responsible-about-fatca-as-vancity/
As a French citizen living in a French territory with no significant connection to the United States, who acquired US citizenship through place of birth, I have experienced the same, discriminatory situation as others posting on this thread with regards to banks. I have written to the French government seeking clarification about my citizenship, whether France will treat me equally as a French citizen with all the rights, privileges and immunities as all other French citizens, or whether she will treat me as a foreigner subject to the laws of a foreign country. I have, also, made my case known to the Défenseur Des Droits, who is in the process of reviewing my case.
When my bank required of me to submit either the W8-BEN form or the W-9 form, I made an investigation into how “US Person” is defined. The pertinent definition of “US Person” for most of the individual cases concerned here is, “An individual who is a US citizen or US resident alien …” The one place I have found where citizenship is defined in American jurisprudence is in Amendment 14: Section 1 of the Constitution of the United States, which is the supreme law of the land, and whose definition would supersede any and all other definitions of US citizenship.
As a French citizen living in French territory who also holds US citizenship, I have experienced the same, discriminatory situation as others posting on this thread with regards to banks. I have written to the French government seeking clarification about my citizenship, whether France will treat me equally as a French citizen with all the rights, privileges and immunities as all other French citizens, or whether she will treat me as a foreigner subject to the laws of a foreign country. I have, also, made my case known to the Défenseur Des Droits, who is in the process of reviewing my case.
When my bank required of me to submit either the W8-BEN form or the W-9 form, I made an investigation into how “US Person” is defined. The pertinent definition of “US Person” for most of the individual cases concerned here is, “An individual who is a US citizen or US resident alien …” The one place I have found where citizenship is defined in American jurisprudence is in Amendment 14: Section 1 of the Constitution of the United States, which is the supreme law of the land, and whose definition would supersede any and all other definitions of US citizenship.
Article 6 – Supremacy
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;
Thus, Amendment 14: Section 1 of the US Constitution reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
According to the rules of logic, both conditions of “born or naturalized in the United States” AND “subject to the jurisdiction thereof” must be present for this definition to be valid and effective.
Thus, a person living outside of US borders and not “subject to the jurisdiction thereof”, and who is not a resident or citizen of any state of the United States, is by definition, not necessarily a US citizen. It depends on how a host country might recognize his citizenship. Citizenship, it turns out, is not absolute. It is relative to various situations and interpretations.
Thus, when a citizen of one country is abroad and no longer under the jurisdiction of that country, he may or may not continue to be a citizen of that country depending on how he is recognized and treated by the host country in which he is currently residing or visiting. This is the case for persons who hold sole Israeli citizenship, for example, if they should happen to find themselves in any one of the 31 or so countries that do not recognize Israel. They would be, effectively, stateless persons having no official citizenship. Thus, it is irrelevant how one might consider one’s citizenship, or how a bank might consider one’s citizenship, or even how the United States might consider one’s citizenship. The only definition of citizenship that matters is how a host country, under whose authority and jurisdiction one finds oneself, might consider one’s citizenship.
And this goes to the heart of the question that I asked the French government in my letter: Does France recognize me – a French citizen residing on its own soil – as a French citizen? Or does France recognize me as a foreigner? If France does recognize me as a French citizen, then it is not recognizing me as a foreign citizen. If, however, France recognizes me as a foreign citizen, then it is not recognizing me as a French citizen. In either case, important issues of constitutionality and national sovereignty arise, and these are what needs to be resolved.
This same reasoning may apply just as well to Canadian citizens. Does Canada recognize its dual nationals as foreigners, or does Canada recognize its dual nationals as Canadian citizens with all the same rights, privileges and immunities as all other Canadian citizens? I am not familiar with Canadian law or the Canadian constitution, and whether the principle of equal treatment before the law is written into Canada’s constitution, though I would think that it is.
Whether one is a US Person or not really depends on how a host country recognizes its citizens and residents, and not on how you or I or even the US recognizes them.
@Yazz,
Unless I’ve misunderstood you, I’m afriad I don’t agree with much of your logic.
This just can’t be. Yes, within a host country such as France or Canada, if you are a citizen of that country, they treat you and all citizens equally. They don’t care about what other citizenships you may have (bear with me and read on…). The USA doesn’t give a crap about French or Canadian citizenship laws. You are a USC until the US tells you (or at least agrees with your claim and then tells you) that you are not, and there is nothing the laws of a foreign nation can do to take away your US citizenship. Since 1986, even the US government is restricted in it’s powers to take away the US citizenship of an individual. With that in mind, do you think they’d let a foreign country dictate or change the US citizenship of US citizens, anywhere on the planet?
The host country where you also have citizenship may protect you from the US while you are at home in your host country, but I think everyone would agree that as soon as you step foot back in the USA, if the USA considers you a citizen, then the US can do to you what they think you deserve. There isn’t much your host country can do to intervene while you are in the US. Canadian and US government travel websites warn about this.
Then along came FATCA. The Canadian IGA is enabled by a Canadian law that says banks must ask all clients (all citizens) to declare their ties to the US. In this way, the law treats all citizens equally. 😉 If an individual refuses to cooperate with a bank, she is breaking a Canadian law, not a US law. That’s the real nasty bit. Once a bank determines that you have uncleared US indicia, _then_ you are treated differently from other citizens by the Canadian government (the CRA), and that’s where privacy and rights laws will hopefully take action. But, it’s now a Canadian law, not a US law. I don’t know if the French IGA was handled the same.
To be clear, I would rephrase your statement:
“Whether one is a US Person or not really depends on how a host country recognizes its citizens and residents, and not on how you or I or even the US recognizes them.”
as:
“Whether one is considered a US Person or not by another host country really depends on how a host country recognizes its own citizens and residents. Whether one is considered a US person by the US depends entirely on how the US recognizes its own citizens. Neither country’s laws or practices influences the other country’s claim to you.”
@WhatAmI
One point I was trying to make was in regard to a bank’s treatment of its clientele, and in a larger sense, the way a country allows or obliges its institutions to treat its citizens. The whole point is that even within a host country, and even if you are a citizen of that country, FATCA requires of the signatory countries to treat you and all citizens UNEQUALLY if you and they happen to be dual nationals with American nationality. FATCA requires countries to violate any constitutional guarantees of equal treatment under the law that they might have. The reason that I wrote that the determination of citizenship ultimately depends on the host country is because it will be this country that will decide if one is a citizen of that country entitled to all the protections the country has to offer, or whether one will be treated as a foreigner and citizen of a foreign country, in this case, the United States.
The US can make any law it wants and define and treat people any way it wants. In fact, any country can do this, and that is one of the dangers of FATCA if other countries decide, also, to extend their jurisdiction beyond their borders. The question is whether other countries will yield their national sovereignty and allow foreign powers to dictate to them the definitions and treatments they must inflict upon their own citizens. The US might consider a dual-national as an American citizen for all eternity and subject to its laws even when he is not subject to its laws. Will the country of this person’s residence and citizenship also consider him an American citizen for all eternity as well, and treat him as an American foreigner subject to US laws and not as one of its own citizens? I think this is what the Canadian FATCA lawsuit is about.
My other point was that US citizenship ends with US jurisdiction at the US border. It is right there in Amendment 14: Section 1 of the US Constitution. One might only remain a US citizen beyond US borders if a host country recognizes one as a US citizen. When I re-enter French territory using my French passport, France recognizes me as a French citizen, and at that point, I am not a US citizen. If I were to present my US passport and France recognizes me as a US citizen, then I remain a US citizen. Whether I am a French citizen or a US citizen depends entirely on how France recognizes me. I would think this principle would apply to Canada and other countries as well. If I re-enter US territory and present my US passport, then the US will recognize me as a US citizen, though I have re-entered the US on my French passport in the past without any problem. So, it is not a question of a country taking away one’s citizenship, but how a country will recognize and treat a person according to its own rules and laws. See my comment about Israeli citizenship in my earlier comment.
As for my statement, and in view of the above, I stand by it with further clarification: “Whether one is a US Person or not really depends on how a host country recognizes its dual-national citizens when they are residing within that country’s borders and outside of US jurisdiction, and not on how the US recognizes them.”
Certainly the “Canadian IGA is enabled by a Canadian law that says banks must ask all clients (all citizens) to declare their ties to the US, and in this way, the law treats all citizens equally.” It’s just what happens afterwards that is discriminatory and unequal, if the US has a claim upon a Canadian or other citizen. (This evokes parallels to Dred Scott)
In my case, my gripe is not directly with the US, though it is the cause of it. My gripe is with the French government, as it is for Canadian dual-nationals with their government. The injustice is being perpetrated by the French, Canadian and other governments in compliance with US hegemony.
I just thought I would update my story regarding my experience with MD management. There was a lot of back and forth after we presented them with our self-certification (drawn up with the help of a lawyer, specializing in citizenship matters). Initially they thought it would be sufficient, then they consulted their own lawyer who erroneously stated that expatriation was not complete until we notify the US consulate about the prior expatriating act. Because of the date of the expatriating act this was not in fact the case. They asked for me to educate them on this, asking me to seek out the pertinent pieces of the acts in US law. I sent them a lot of info and insisted they spend more money on their lawyer’s time, not me! They really wanted me to get a second opinion, with another lawyer. I refused, knowing a second opinion which agreed with theirs would do me no good. In the end they educated themselves and have now agreed that we can be unflagged. They will not be sending our info off to the IRS via CRA! Our advisor told me I was the first of his clients going through this who was able to convince the “compliance” department of their non-US status with a US place of birth on file. I hope the lawyer they are consulting is considerably more up to speed now and will be kinder to future self certifiers. All my communications with him were via my financial advisor, so I don’t know who they were consulting.
We have yet to be asked anything by RBC where we do our everyday and business banking. But I am a little more hopeful now that it might be possible to get through this without visiting the US embassy to document the past relinquishment.
Well done. I hope IBS was helpful to you. Would you consider a donation to the charter challenge? ( if you haven’t already done so. )
@Duke of Devon
Definitely IBS was very helpful to me. And I am thinking of donating to the litigation, though I have lingering doubts. At the risk of opening a hornets nest, can anyone reassure me that the success of the lawsuit will leave us better off? It will quash the IGA but won’t that just mean our info gets sent directly from the bank to the IRS? That doesn’t sound better to me. Will the banks be forced into doing that, with the threat of the 30% withholding or will the banks just close accounts of anyone suspected of US personhood so that they don’t breach privacy laws. I worry that things will get worse, but sitting back passively taking it doesn’t suit either!
SilverBirch. Good questions. My family is better off with the IGA knowing that registered accounts won’t be reported. However I contributed to the lawsuit because we need to stand on principle. Also I assume the banks won’t be in a worse position as far as which accounts to report than they are now.
I imagine the reason registered accounts are exempted is because the US realizes that it is *highly* unlikely they would be vehicles for tax evasion (the US is NOT exempting them out of the goodness of its heart). As such, it’s not hard to believe that even in the absence of a Model 1 IGA, these accounts would be exempted – they’d be distracting noise otherwise. This would be especially true given that Canada would have tried to implement the Model 1 IGA and was slapped down by the Supreme Court.
Question: does the local client base deemed compliant status for a FI require a Model 1 IGA, or would a Model 2 IGA suffice?
@ Silverbirch
If the IGA is judged to violate the Charter then the banks and other financial institutions will be unable to comply with FATCA where ever it requires them to query and discriminate based upon nationality and place of birth. The fundamental issue with the enforcing the US law FATCA against Canadians in Canada is that it requires institutions to treat Canadians born in the US differently than Canadians born anywhere else. That (to me at least) is the core argument against the FATCA IGA: it makes discrimination based upon place of birth mandatory and creates a 2nd class of Canadians based on one specific national origin.
@Wondering
I asked about this a while ago and apparently the Charter does not apply to non-governmental entities. And banks and other FIs are not considered to be governmental entities. So they would be free, as far as the Charter is concerned, to ask about place of birth and nationality. It would be up to federal and provincial laws to stop them from doing so.
FWIW, that’s my understanding of it.
@tdott
I agree, the US did not do it “out of the goodness of its heart.” Fact is, they did it for many and is one reason it is infuriating that the CONs imply they negotiated special provisions for Canada that other countries did not get.
http://www.groom.com/media/publication/1224_Cumulative_List_of_Non-US_Pension_Funds_Exempted_by_FATCA_Intergovernmental_Agreements__IGAs__April_30_2014.pdf
@Slverbirch and Duke of Devon
Quite aside from whether or not to donate to ADCS-ADSC, I think it isn’t limited to we win the suit, the banks still have to report. Primarily due to the amount of time involved and the fact that many things can/will happen in the meantime, If we won in 6 months, yes maybe. But if this goes on to the Supreme Court, imagine how long in the future that is. Years. Somewhere I wrote something that outlined some of them, I can’t remember offhand and so far cannot find.
Maybe I’m missing something here, but didn’t Canada agree to the IGA because our law prevents the banks from dealing directly with the IRS?
@Bubble,
I’ve never been able to discern what the difference is between reporting to the IRS or the CRA, same result. For some reason the gov thinks this is a great deal? What am I missing?
@Bubblebustin
My understanding is that in the absence of a Model 1 IGA (like we have now) laws would prevent the banks from dealing directly with the IRS.
However, the government could change/override any problematic (to it) federal laws. And I imagine it would exert immense pressure on provinces to change/override any problematic provincial laws – assuming the provinces don’t do it themselves out of fear of the 30% withholding threat.
So, a Model 1 IGA makes life much easier for the government, but that doesn’t mean a Model 2 IGA could not be implemented.
At least AFAIK.
Having said that, I donate because it pisses my off to no effing end that the federal government sold us out. So, if the lawsuit can cause the government grief, then I’m all for it. And who knows, perhaps if the lawsuit succeeds the government will rethink the whole thing and this time really try to protect USCs.
This is off the topic we are now on, which is interesting, but back to bank experiences. I forgot to mention one other thing. During all the back and forth with MD management, I was trying to pin them down on which accounts were to be reported this year, in May but with 2014 details. It was a corporate investing account that had first triggered the questioning, so we assumed it would be reported. My financial advisor never had the answers himself, but always had to check with the “compliance department”. In the end he told us that none of the accounts we held with them would have been reported since this year the only ones being reported are unregistered personal accounts. It really does seem to be a disorganized process where the people rolling it out are only barely staying ahead of the schedule!
On the other topic. I see that there are others with the same qualms as me, I really do appreciate the discussion. I think the banks would like to believe they are still guarding our personal details, but they are quite as willing as the conservatives to find a way to wiggle out of those responsibilities and protect their backs.
@Charl
The government pretends it’s doing it under the Canada-US tax treaty. This is Professor Christians comments at one if the Finance Committee meetings regarding that:
“…FATCA, as reflected in the bill before us today, tells us to ferret out our own citizens as likely U.S. tax debtors and present them and their financial resources to our most important treaty partner in an agreement of dubious status that may not even be a tax treaty. The bill suggests that this will be done in furtherance of the existing tax treaty. It goes significantly further. It forces us to ask ourselves how we can open our citizens and their money to the U.S., yet claims this does not constitute lending assistance. Canada must protect Canadians, and that is what the lending assistance rule and the limits on information disclosure do. They assert that the U.S. should have no enforceable tax claim that should be assisted by Canada on Canadians.”
…”FATCA as implemented in Bill C-31 is not a tax treaty in U.S. law, nor is it a protocol to our tax treaty. Indeed, I am not sure what it is and I am not alone. Lawsuits have been initiated in the U.S. on this point and the issue is far from resolved.”
http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=6597204&Language=E&Mode=1