2,221 thoughts on “Canadian FATCA IGA lawsuit: November 1, 2014 legal bill will be paid on time! / Poursuite canadienne contre la FATCA et le gouvernement canadien : nos frais légaux du 1er novembre 2014 seront payés à temps !”

1. A Canadian Conservative (or any other?) majority government is rouge dictatorship.

   http://rabble.ca/blogs/bloggers/council-canadians/2014/09/harper-sneaks-through-canada-china-fipa-locks-canada-31-yea

   The people of Canada should be alarmed that our constitutional rights have been stolen from our hands.

2. @ Just a Canadian: Please note on this feed Stephen Kish’s response to the very same question. His response in on Sep 10 @ 9:59am re “Govt. of Canada has asked for more time to respond.”

3. Looking at the article, it appears the Natives will have to be the ones that take Harper out.

4. Yes, NativeCanadian, from the article:

   …the ratification comes while the Hupacasath First Nation’s legal challenge on the constitutionality of the agreement is still being considered by the Federal Court of Appeal, with a decision on the case expected any day.
   …
   Despite the final outcome, the full impacts of which have yet to be seen, opposition to the deal, and especially the courage and tenacity of the Hupacasath First Nation in their legal challenge was able to delay the FIPA by two years. As hollow as it may seem right now, that in itself is a small victory. As Council of Canadians chair Maude Barlow put it in June, “For taking this courageous stand the Hupacasath deserve both our support and our sincere thanks.”

   “This is a truly sad day for Canada,” laments Hupacasath First Nation representative Brenda Sayers. “Hupacasath First Nation is deeply disappointed that the Federal Government would ratify the Canada-China FIPA while the case is still before the Federal Court of Appeal and the decision is under reserve. This decision is an injustice and an affront to our time honored judicial heritage and shows no respect for the judicial process. The people of Canada should be alarmed that our constitutional rights have been stolen from our hands.”

   In the coming days, the network that has emerged over the past two years to stop the ratification of the Canada-China FIPA will explore if there are still avenues available to stop the deal before it enters into force on October 1.

   Interesting commentary regarding the Government of Canada in this case — and may relate to the ADCS-ADSC case!

   https://leadnow.netdonor.net/ea-action/action?ea.client.id=1694&ea.campaign.id=28698

   The Hupacasath are ready, but they can’t do it alone – especially now that the Harper Conservatives have asked the courts to force the Hupacasath to pay over $100,000 in costs for the government’s legal team and expert witnesses.
   
   Historically, Canadians have not been forced to pay the government’s costs in constitutional challenges where the public interest is at stake. What does it say about the state of our democracy that our government would refuse to bring a sweeping investor agreement before Parliament, and then force Canadians to pay punitive legal fees to challenge them in court?

   The Hupacasath are refusing to be intimidated by this new hurdle. Their band council has agreed to appeal the judge’s ruling, but the appeal can only go forward if we can raise $300,000 to pay the costs and legal fees.

5. Another reason to give to the ADCS legal challenge:

   A compliance condor professional in Canada places this advert to sell us this “FATCA is your friend” progaganda:
   See;
   http://www.mondaq.com/canada/x/339842/tax+authorities/FATCA+Is+Not+Your+Enemy

   in which the author, a compliance industrial complex member, advises and attempts to divert Canadian citizens and residents, who are also Canadian voters and taxpayers, away from asserting their Canadian Charter and other legal rights on their own home country soil, in reference to Canadian-enacted legislation (to enable the FATCA IGA) enabled by their own Canadian government – and which is intended by the Harper government to supercede any other Canadian laws which are in conflict with the FATCA IGA (leaving aside that there are some Canadian laws which are at least quasi-constitutional – as the Privacy Commissioner noted for example, and which may not be in the power of the government to override).

   Notice that the author is not a lawyer, and has no special training, experience, and expertise in Canadian constitutional law, yet without such, pronounces on the likely outcome of our challenge. And, refers only to what is cheaper for the banks – yet conveniently ignores that his prescription to assist the financial sector, victimizes Canadian citizens, and residents – and hinges on discrimination based on an accident of US parentage, national origin, or birthplace – thus stripping us of our Canadian legal rights – as well as costing us ALL as Canadian taxpayers and accountholders via higher taxes and higher banking fees – in order to implement an offensive imperialistic foreign (US) law forever and ever.

   Luckily, the framers of the Charter and the laws that make up the Canadian constitution didn’t intend to elevate the interests of financial institutions and accountants over the human and civil rights of Canadian citizens and residents on Canadian soil – and over all other legal considerations and national values.

   If Canada as a nation had wanted bankers to rule us, they would have appointed the CBA to write our Charter.

   Those in the compliance sector are businesses. They wouldn’t bother wasting their time, energy, and money placing these infomercials in the media unless they thought the FATCA lawsuit posed an actual challenge to their vested interests or achieves some other advantage.

   I read it and asked myself; what are other possible motivations, vested interests at play? Consultants for some industry or political sector? Lobbyists? Political affiliations?

   Not content for the courts to decide, they appear to me to be trying to publicly undermine our efforts to access the Canadian democratic process and appeal to the Charter and the Canadian constitution – as is our right.

   Refuse to be diverted. Stay the course – support the ADCS challenge!

6. @Polly @Blaze In terms of attracting those having the financial capacity to really make a difference to the ADCS cause, yes this has happened. How did that James Butera legal effort get funded? An “anonymous donor!” That can’t be inexpensive. That was a whole mini dam landing all at once.

   ADCS like any business needs to be constantly questioned, tweaked, and modified toward achieving the end goal. There can not be the attitude of ‘build it and they will come.’ There needs to be reaching out to impacted segments. I would say that IBS does a really good job of reaching out to accidental Canadians and those wishing to renounce/relinquish. Yet, as mentioned before, more could be done to attract and provide worthwhile information to business people and those who are complying. One may imagine that these two groups have considerable resources and they are angry too.

7. Just for the record, the FIPA (Foreign Investment Protection Agreement) Harper signed with China had full bipartisan support from both conservatives and liberals as pointed out on NDP leader Mulcair’s site (from which you can link to the parliamentary vote held April 2013):
   http://www.ndp.ca/news/reminder-to-liberals-remember-vote-china-canada-foreign-investment-protection-agreement

   To Harper’s credit, he didn’t rush out to ratify the FIPA right after the vote in his favour. However, it would be awkward for him to postpone ratifying it much longer because of the upcoming APEC summit that this year will be hosted in Beijing. [APEC = Asia Pacific Economic Cooperation, “the premier forum for facilitating economic growth, cooperation, trade and investment in the Asia-Pacific region”]

   The Chinese are looking for solid places to invest their money beyond increasingly worthless U.S. treasury bonds. They are investing in many countries, and according to Forbes in 2010, “Australia, at $30 billion, is the single biggest draw for Chinese investment. The U.S. is second at $21 billion.” If Australia is being destroyed by China, I haven’t heard about it, have you?
   http://www.forbes.com/2010/04/20/china-foreign-investment-tracker-markets-economy-glonal-2000-10-derek-scissors.html

   China is Canada’s #2 trade partner and we are a good, stable country much like Australia. It would be reckless NOT to have some kind of a FIPA with China, as we have with other countries, including Russia. As I completely lack lawyer skills, I needed someone to explain the FIPA to me and this what I found (from someone who thinks the FIPA with China is reasonable, and it sure sounds like it is):
   http://fullcomment.nationalpost.com/2012/11/05/andrew-coyne-taking-a-closer-look-at-canadas-foreign-investment-deal-with-china/

8. @badger
   I love what you said:
   “If Canada as a nation had wanted bankers to rule us, they would have appointed the CBA to write our Charter.”
   Thank you!

9. Welcome @Jan. Just find it so very telling how the lawyer and accountant writing/advertising (buying?) space on Mondaq refuse to touch the actual issues in the lawsuit, but represent only their overarching vested interests re slightly different sectors (trusts vs. banks, and support for the current government) in pronouncing on it. How inconvenient it is having a Charter of Rights, a constitution, and other associated laws and values when you just want to do what is ‘best’ for the banks. How narrow a lens and how skewed a perspective. We already have government being advised by bankers or those associated with them (how many times have we heard CBA economists quoted?), we’re only a wee step away from having a sign hung on the Parliament of Canada – ‘sponsored’ and ‘brought to you by….’ fill in the blank corporation or industry sector name here ______ . Actually, I think we’re already there, but they prefer not to name their sponsors.

   @calgary and @NativeCanadian,
   thank you for that valuable information on the brave fight by the Hupacasath First Nation. I didn’t know about it.

10. I just watched the last half hour or so of the FATCA seminar put on at digjamaica.com/fatca. Things are even worse than I thought. This is going to pit child against parent … child living in the US needs to file with IRS BUT owns say 10% of a family company in Jamaica …. for that child to come into compliance she / he will need to inform on his / her parents and siblings who own the remainder of the company …. good grief … God help them if they had green cards and had not properly surrendered these when they left the US.

11. The preamble to this thread today mentions Kevyn Nightingale’s piece which is found here:
    http://www.mondaq.com/canada/x/339842/tax+authorities/FATCA+Is+Not+Your+Enemy

    KN says:

    * They will find you when you get or renew your US passport, which is required to enter the United States;

    I say:
    I don’t have a US passport. I wouldn’t be able to get one even if I wanted one because I am not a US citizen.
    KN says:

    * They will find you when you cross the border with that passport;

    I say:
    I will never cross that border. I won’t ever spend a dime in the USA.
    KN says:

    * They will find you when you invest in US securities (with a US or Canadian broker);

    I say:
    I don’t have nor ever will have investments because my goal is to spend down my savings not increase them.
    KN says:

    * They will find you when your mother (who lives in the US) dies;

    I say:
    My Canadian parents have passed away. My husband’s American parents have passed away. We miss them dearly and thankfully the IRS cannot do anything about our inheritances (too low to tax).
    KN says:

    * And if all else fails, they will find you when you die. Because even if you were willing to pretend you weren’t a US citizen, your executor, or her lawyer won’t want to play that game.

    I say:
    My executor will be my husband and he knows I am not a US citizen. Besides my goal is to spend down my savings so the cupboard will be bare should the IRS ever try to come to raid it.

    Any more advice or warnings for me, Mr. Nightingale?

12. @Embee, I would have answered in the identical, yes identical manner. 🙂

13. Mr. nightingale: My accountant, lawyer and executor of my estate all know I was born in the U.S. And know I have been only Canadian for 41 years.

    Unlike you,they are honest, ethical and understanding. Their advice to me is to do nothing with the IRS and that they will do nothing after my death (My accountant is my Executor).

    Unlike you, who wants to milk Canadians for all you can get, they tell me U.S. tax laws are foreign and I have no obligation to follow the laws of a foreign government. They also tell me CRA does not and will not collect for the IRS.

    Like Embee, my parents are deceased. Since my mother’s death in January, I will never cross the U.S. Border again. Instead of spending money in the U.S., I will spend it in Canada–and donate to ADCS to protect Canadians from enemies like you, the IRS, the Conservative government, Finance Canada and FATCA.

14. @Embee, Blaze, et al
    Further to your retorts to Nightingale, we desperately need FACTS to counter the campaign of FEAR!

    Has the US government ever been successful in collecting tax and penalties from any Canadian citizen in Canada? Any FACTUAL recorded case where a Canadian citizen residing in Canada was forced to pay US tax by a Canadian court? What were the cases and how was the foreign tax claim enforced?

    Any FACTUAL case of the US intervening in a Canadian estate settlement to seize assets – fighting it out in court and winning? (NB: Canadian funeral directors do not remit copies of Canadian death certificates to foreign states).

    And is there any FACTUAL account of a Canadian visitor to the US being detained or arrested on suspicion of taxes owed?

    I am talking FACTS and documentary evidence – not fear-mongering, conjecture and urban legends.

    My understanding is that it’s very difficult if not impossible to collect any foreign tax in Canada because Canadian courts will not enforce foreign tax claims. There is essentially no mechanism of enforcement other than “assistance in collection” by CRA and that requires both a judgement and the exhaustion of all other means.

    And the Tax Treaty prohibition against assistance in collection from Canadian citizens is not just a policy position. It is treaty law and cannot be changed without the active collaboration of Parliament and US Congress (how likely is that).

    So what are the FACTS?
    Exactly how many Canadians are also so-called “US-persons”?
    What is their actual % of total US tax compliance?
    (based on US stats of foreign tax returns and credits claimed, it seems like less than 15%)
    And what is the master plan for enforcement of US tax claims against the hundreds of thousands of Canadian citizens residing in Canada?

    Maybe Mr. Nightingale can provide factual answers based on actual cases to the comments above. But I would not hold my breath.

15. @Wondering: KN does not want to deal in facts, It would mean he can’t instill terror in Canadians on behalf of the International; Robbery Society.

16. @ Wondering
    You ask good questions. I can’t answer them but perhaps Mr. Nightingale can. Sometimes I feel like I’m the only Canadian GCer who failed to disconnect in the prescribed manner from the USA because GCers either don’t know about Brock or don’t participate if they do. Almost everyone at Brock has a birth connection to the USA (or their spouse does). I believe Don Whiteley (aka Arrow), bless him, had a long ago GC but sadly he is gone and very much missed. That leaves me the lonely little onion in the petunia patch. (if you are too young to understand that inverted reference go to https //www.youtube.com/watch?v=A7soxUKX5Ls — put a colon after https.)

17. Rading the claims filed in court I spot a typo:

    75. These are distinctions on analogous and enumerated grounds, including but distinctions on the basis of national origin and country of citizenship.

    perhaps should read

    75. There are … including but not limited to distinctions…

    or

    75. There are … including distinctions …

    Please let your lawyer know now because time is of the essence.

18. If Congress passes a law saying everybody born anywhere in the world on February 29th on a leap year is automatically a citizen of the United States, a million persons around the world would rejoice because it is their ticket out of their Third World wretched dictatorship to the Land of Plenty, but this does not entitle Congress to tax Canadians who happen to be born on February 29th on a leap year and who are not interested in U.S.A. citizenship, nor does Congress have any right to tell them what to do.

    Harassing U.S.-born, U.S.-bound persons (as happened to that mayor of London UK) may actually be better than the alternative, which is to capture them for noncompliance once they do enter the U.S.A.

    I thought about this during the Iran Hostage Crisis in 1980. Six U.S. Embassy persons were given Canadian passports. I thought, if I were so lucky, I might arrive in Canada and refuse to surrender the Canadian passport. (The bureaucrats did not pick me to have lawful permanent residence so all I get to do is like mother-in-law: I can visit but I cannot move in.)

19. Schemers in the U.S. Treasury/IRS are in control of FATCA,FBAR,CBT. An aim: make investing in other countries not appealing via financial penalty so that more money is kept in the U.S., or diverted back to the U.S. where it would be subject to estate tax on citizens and noncitizens alike. There is no equity or fairness of all this for US citizens living abroad. It is just a cold calculation by an Executive department wielding its power without sufficient oversight or control. That it why legal action is vital.

20. Lawsuit gets a mention on this blog:

    http://taxsamurai.com/2014/09/fatca-is-adding-oil-to-the-fire-of-citizenship-based-taxation-for-us-citizens-abroad/

21. At $680 a pop to get US citizenship and $2,350 to get rid of it, the proof is in the pudding that US citizenship is a disease — easy to catch, but difficult to get rid of.

22. @JDl

    good one!

23. @EmBee

    I am in the same boat u are… Got a GC cause we thought it was a good thing… never exited out… can’t afford to exit out now… got too many strings attached for me to untie… joint with many elderly in the family… both sides & international… made mistakes… if we had known about this.. would have done something when we had nothing… worked hard & saved… Supposedly owe the US for things outside of the US… not made in the US… Can’t vote… have no voice… illegals have more of a voice in the gov’t then GC holders… no one wants to hear our issues… GC holders are the true tax slaves… Even our own gov’t is tossing us under the bus. If we had known about this… would have gone in illegally… made our money then leave… with no trace… So I understand where u are coming from. That is why this lawsuit is important… Canadians born or naturalized are not US property that the Canadian gov’t can just make us 2nd class in our own country… Traitors… every one who voted for this.. Traitors…

24. @badger, EmBee & Blaze,

    If I were able to comment on the article at Mondaq, this is what I would say (and I suspect KN reads this blog as he has contributed here before, so this is what I think of “FATCA is Not your Enemy.”

    Are you aware of Professor Arthur Cockfield’s comments regarding the type/extent of information that has been covered prior to the IGA? These can be found in his testimony to the FINA committee on May 13, 2014. The gist is, that up until the IGA, the exchange of information focused on residents with a temporary status in either country, not those residing permanently and the information did not include details such as all deposits and withdrawals,etc. Under PIPEDA, this level of info was not permitted to be exchanged from CDN banks to the CRA. What a jump to allow the CRA not only to receive it but now transfer it to the IRS. I see no reason to assume that previous findings of the courts (please list some specific cases rather than throwing this idea out as a given) to allow exchange of information will automatically make this a pointless exercise, as you seem to imply. Professor Cockfield also addresses his point of view regarding violations of the Charter, the Privacy Act, etc and NAFTA (I believe your opinion is that NAFTA does not apply however, that is debatable). There are certainly other relevant and influencing factors beyond the current Treaty not the least of which is the fact that this agreement may not even be legitimate and most definitely not an extension of the current treaty.

    If you really believe “information will flow northward, I expect you will be disappointed. Even the wording of the IGAs indicate the US is not serious about their end of the deal. The reasons for not trusting the Americans are many. They include the assassination of American citizens with no due process; the incarceration of individuals with no charges for as long as 12 years; spying on their allies, persistence in persecuting Americans abroad after many claims that this was not the original intention of FBAR, OVDP, OVDI etc. Canada gets nothing from this agreement. The Americans have gotten away with inflicting this on the whole world. Where on earth do people get the notion that they will reciprocate? I would not be surprised if the Canadian courts find that unacceptable and take it into consideration. Perhaps they will be a bit less inclined than the banks and the CDN legislative branch of the government to hand over Canada’s sovereignty on a (not silver) platter to our so-called “friend.”

    Your comment regarding the information exchange not changing the obligation is frivolous and irrelevant. The lawsuit is not about US law regarding the filing of tax returns. No amount of harping on this changes the fact that the CDN govt and the tax-compliance industry use this as a way to detract from the serious consequences this agreement will have on the Canadian people and this nation. It is as misleading as the endless drivel that one may not renounce for tax reasons. That changed in 2008 and is a huge misconception that needs correction. Curious that the tax compliance industry fails to communicate this fact.

    The following items are not based on fact and serve only as scare tactics.

    • They will find you when you get or renew your US passport, which is required to enter the United States;
    • They will find you when you cross the border with that passport;
    • They will find you when you invest in US securities (with a US or Canadian broker);
    • They will find you when your mother (who lives in the US) dies;
    • And if all else fails, they will find you when you die. Because even if you were willing to pretend you weren’t a US citizen, your executor, or her lawyer won’t want to play that game.

    The first 2 items are patently ridiculous in this instance and demonstrate you are not familiar with the situations of many Accidentals and specifically Ms. Hollis and Ms. Deegan. Neither of them have nor would they ever dream of obtaining a US passport, much less renewing one. That advice has been repeatedly given on this blog for nearly 3 years now as well as on other expat sources. Any person unfortunate enough to be in this situation is hopefully doing more than just reading what is in the MSM or what the compliance industry puts out. I cringe when I read the accounts of those who clearly are not US citizens and yet, have been advised and “helped” to come into compliance by filing returns etc.I sincerely hope the day will come when those who deserve to be sued for misleading these clients will receive what they deserve for having done so. Please read the following comments as examples:

    http://isaacbrocksociety.ca/2013/10/09/expatriation-appointments-at-vancouver/comment-page-6/#comment-2997815

    http://isaacbrocksociety.ca/2013/10/09/expatriation-appointments-at-vancouver/comment-page-6/#comment-3003536

    http://isaacbrocksociety.ca/2013/10/09/expatriation-appointments-at-vancouver/comment-page-7/#comment-3004181

    http://isaacbrocksociety.ca/2013/10/09/expatriation-appointments-at-vancouver/comment-page-7/#comment-3010704

    While there is the issue of a US birthplace on CDN passports, many will opt not go to the US or may drive with an enhanced drivers license (if the information that birthplace is NOT on the portion shared with the US Border Patrol is to be believed and/or honored). Not all “US Persons” have a US birthplace. Certainly the majority of Accidentals, who may not have family in the US will consider whether it is worth it or not to travel there and many will flat-out refuse to support the US by spending their Canadian dollars there. I challenge the notion that it is assumed Canadians will want to cross the border. Many of us simply want nothing to do with the US and will no longer go there. Ditto for investing in US securities. Again, it is simply assumed that there will be no consequences for what has happened/is happening. American exceptionalism spewing out of the mouths of Canadians. One cannot escape it even after leaving the US. The US will begin to pay a price for its grievous behaviour.

    Again, the last two points speak to an assumption; that the US-ness derives from a parent who may or may not even be living, never mind in the US. Not all “US Persons” derive their citizenship from descent.

    While I have nothing against KN personally, I believe the point is we tire of hearing this attitude that fighting is pointless, After 3 years of listening to it, we may be less than polite at times. Nothing personal against any specific individual is intended. However, to present the situation in such limited terms and with such constrained choices speaks to the fact that there is a serious underestimation of the resolve of those of us in this situation. Please take us a little more seriously than these comments demonstrate and don’t insult us by pretending that the interest of the compliance industry is anything more than greed.

25. @US_Foreign_Person

    One good thing is that GC holders don’t really have a trace in your home country unless somehow you gave it up to somebody at some point. Can’t tell a GC holder from anyone else.
    I think the taxation of people with expired GC’s is the high of American arrogance. Luckily I now know I am trapped with my GC but planned on living in the US for the rest of my life.