UPDATED SAT 28 FEB 2015
Everyone should stand up and take notice that WE are having an effect on all things FACTA-oid. First it was only tax geeks and compliance condors. Now the scholars are chiming in. Funny how most simply are oblivious of the fact that the US overreach is the number one indication that the whole thing is simply flawed.
As John Richardson points out in the following repost from The ADCS blog, WE are making a difference. We haven’t been deterred by obnoxious comments from the public, the Canadian Conservative government, nor the compliance condors. One thing they don’t seem to get, is that nothing in life is fixed and immovable. Change is the only thing that one can count on. So while they all sit on the pedestal of “no one can fight this’ and “it’s US law,” let’s enjoy the fact that regardless of how difficult this has been, we have risen to the challenge and are worthy of respect; not just from them, but from ourselves.
Forbes had a nice quote the other day which reflects well upon our situation:
“Whenever you find yourself on the side of the majority, it is time to pause and reflect.”
Mark Twain
@ADCSovereignty #FATCA IGA lawsuit continues to be newsworthy and provides education and leadership to the world https://t.co/0K9zKqTBvt
— Citizenship Lawyer (@ExpatriationLaw) February 28, 2015
The lawsuit launched against Canada’s FATCA IGA will be remembered as part of the history of FATCA. As the Obama administration “boldly goes” to impose it’s will on the world, Canada’s FATCA lawsuit reminds both Homelander academics and International Compliance Condors that there is a world outside the United States.
Win, lose or draw, the FATCA lawsuit prosecuted by the Alliance For The Defence of Canadian Sovereignty is:
A. Reminding the United States that there is a world outside the United States;
B. Demonstrating that there are people who resent the attempts of the United States to impose its laws on the rest of the world;
C. Illuminating the immorality of (during a time when the U.S. Senate Finance Committee is considering tax reform) U.S. extra-territorial taxation.
Extra-territorial taxation is the U.S. practice of attempting to levy taxes on people who (1) do NOT reside in the United States and (2) on income and property not associated with the United States.
What the United States proudly calls “citizenship based taxation” is primarily an attempt to levy taxes on people based on a U.S. place of birth or because their parents had a U.S. place of birth.
We can’t choose where we were born. We can’t choose our parents. Yes, to be be sure:
“It’s unjust. It’s inhumane. People don’t choose where they were born.”
So, yes your FATCA lawsuit is making a difference. Yes, your FATCA lawsuit is continuing to make a difference. Yes, by all means do continue this generous and important initiative!
How FATCA Works
I recently attended a meeting which focused on the U.S. taxation of people who don’t reside in the U.S. There was a presentation on FATCA. The presenter, an accomplished “U.S. Form Compliance Professional”, provided the usual powerpoint presentation, which was designed to explain how FATCA works. I was interested to see that on one of the slides she noted the existence of your FATCA lawsuit. The presenter then asked:
“Who in the room had NOT heard of the FATCA lawsuit”?
It was clear that all attendees were aware of Gwen Deegan and Ginny Hillis.
The presenter then wondered:
“What possible benefit could the lawsuit be? After all, even if you win, a Canadian court can’t strike down FATCA? Right?”
It occurs to me that:
The failure to imagine a world without #FATCA is a true failure of imagination. https://t.co/y0Ad9yatPB
— Citizenship Lawyer (@ExpatriationLaw) February 28, 2015
It is true that a Canadian court can’t strike down FATCA. But a Canadian court can strike down the FATCA IGA/ The FATCA IGA is the primary enforcement mechanism for FATCA.
That said, to focus on “How FATCA Works” (The battle cry of the compliance industry) is to ignore the question of:
What FATCA Really Is
To put it simply:
FATCA is an attempt by the United States Government to enforce the immorality of “place of birth taxation” on those who do NOT live in the United States. FATCA working as intended will operate to impose a “capital tax” on any country that has a “U.S. person resident there”. Don’t forget that the United States, and the United States alone, decides who is a U.S. person. This allows the United States to unilaterally expand its tax base outside the United States.
FATCA IGAs are an attempt by the United States Government to override the constitutions, privacy laws and “human rights” of the citizens of other nations. In other words, a clearly stated purpose of a FATCA IGA is to lower the standards of human rights that residents OUTSIDE the United States enjoy! A simple example is the override of local privacy rights.
Therefore both the FATCA legislation and the FATCA IGAs must be attacked.
Two lawsuits – Two Attacks – Two Purposes
The Attack on FATCA – The Republicans Overseas Lawsuit
All indications are that (what is referred to as the Jim Bopp lawsuit) is imminent. The purpose of this lawsuit is to attack FATCA directly.
Information may be found at:
http://www.FATCALegalAction.com
The Bopp/Republican Overseas lawsuit is an attack on FATCA itself.
The Attack on the Canadian FATCA IGA – The Alliance For The Defence of Canadian Sovereignty Lawsuit
This one you know better. It’s at:
Why the Canadian lawsuit is vitally important
The Canadian lawsuit is important for both legal reasons and for human reasons.
The “legal significance” of the Canadian lawsuit
FATCA IGAs are NOT authorized by the existing FATCA legislation. FATCA IGAs may be contextually related to FATCA. FATCA IGAs may be the result of FATCA.
However:
Because FATCA IGAs are NOT authorized by the FATCA legislation, the success of the Bopp lawsuit does NOT mean the end of the FATCA IGAs. The FATCA IGAs are not dependent on the continued existence of FATCA as existing U.S. legislation. The FATCA IGA is an independent agreement that will continue with or without FATCA. Those who doubt this need only read the Model 1 IGA.
Therefore, Canada’s FATCA IGA must be stopped regardless of the success of the Bopp lawsuit.
The “historical” and “moral” significance of the Canadian lawsuit – “The price of freedom is eternal vigilance.”
Most people don’t care about laws. Most people view themselves as the subjects of the state. Most people feel no obligation to work towards a world that respects the rights of individuals. Most people don’t even care whether individuals matter.
Most people are willing to accept a situation where the Canadian banks can successfully lobby the Canadian Government to require them to override Canada’s privacy laws and the constitutional rights of individuals. (It has been reported that the banks were the biggest lobbyists for the FATCA IGAs.)
Your FATCA lawsuit demonstrates that you do care and that you are NOT willing to tolerate the legislative and moral principles that FATCA and FATCA IGAs represent. As I have written before:
When it comes to opposing injustice, the simple truth is that:
Some people make things happen.
Some people watch things happen.
Some people ask “What happened”?
FATCA must be stopped. FATCA must be stopped because it’s plainly and simply wrong! Let’s continue working to make Canada a “FATCA Free Zone“.
FATCA – A view from the Homeland
The following paper on FATCA was just released by U.S. academics Bruce L. Bean and Abbey L. Wright.
The U.S. Foreign Account Tax Compliance Act: American Legal Imperialism?
The paper concludes with:
The U.S. Government has taken a bold step with FATCA. The legislation is by far the most egregious example of extraterritorial overreach in history and has been harshly criticized by individuals and entities alike. Yet, the initial anger expressed by liable taxpayers and financial institutions throughout the world has resulted largely in submission to regulation, even absent jurisdictional authority. While the goal of FATCA is to increase tax compliance among American foreign account holders, its effects have been, and will continue to be, felt on a global level. As evidenced by the emergence of several copycat initiatives, FATCA’s impact on global information exchange has the potential to foster international collaboration on tax matters and substantially reduce tax evasion. Offshore accounts have long been a thorn in the side for the IRS and other tax authorities that fear they are missing out on billions, and FATCA may in fact be one answer to their problems.
The acknowledgement of your FATCA lawsuit includes:
There are many Americans, or “U.S. persons” for IRS purposes, living in Canada. Focusing on FATCA in Canada is useful because two Canadians have filed a claim against the Canadian government asserting that the IGA entered into by the United States and Canada165 to implement FATCA violates several provisions of the Constitution of Canada,166 including Canada’s Charter of Rights and Freedoms,167 the Income Tax Act of Canada,168 and the Canada-U.S. Tax Treaty.169 The agreement requires Canadian FFIs to hand over information on qualifying accounts to Canadian tax authorities, who will in turn submit the information to the IRS.170
This litigation is being crowd funded by the “Alliance for the Defence of Canadian Sovereignty.”171 In a press release the group asserts that “[FATCA] . . . makes it mandatory for the Government of Canada to discriminate against Canadian citizens and residents, whom the U.S. deems to be ‘U.S. persons’, by turning over their private bank account information to the U.S. IRS.”172 The two plaintiffs were born in the United States.173 Each left the United States at the age of five and neither has returned since.174 Neither has a U.S. passport and neither has ever filed a tax return with the IRS.175 One of the plaintiffs was born in the United States but is a Canadian resident.176The other was married to a Canadian citizen and owned a graphic design company in Canada.177
One of the plaintiffs states she has no accounts in a Canadian financial institution in excess of $50,000, (“Low Value Account” under FATCA). 178 The other has at least one account that exceeds $50,000 but is less than $1,000,000 (a “Lower Value Account” under FATCA).179 The claim states that by agreeing with the United States in its Model 1 IGA to collect and report to the IRS personal and financial information on Canadian account holders, Canada has violated Canadian law.180
Specifically, the claim asserts that the Model 1 IGA entered into by Canada and the United States violates the Canadian Charter of Rights and Freedoms, a document akin to the Fourth and Fifth Amendments of the U.S. Constitution, which grants the “right to life, liberty, security of person; security against unreasonable search and seizure; [and] equal protection of law without discrimination.”181 Additionally, there is concern that the agreement disregards the principle of maintaining sovereignty.182 The claimants and many other Americans living in Canada feel “entrapped in U.S. citizenship” and that their rights are being violated as they are “branded” potential tax evaders.183
While the claimants are being applauded and supported by their fellow Canadian-American FATCA haters, there may very well be a harsh reality waiting on the other side of the lawsuit. A successful lawsuit will not make FATCA go away. It will not make the fact that these Canadian-Americans have U.S. tax liability go away.184 And it will not return them to the blissful ignorance of a “pre-FATCA world.”185 The U.S.-Canadian IGA, in actuality, protects the plaintiffs and others from the full effects of FATCA.186
If found invalid under the Canadian Constitution, the IGA will disappear, but Canadian financial institutions are not about to ignore FATCA and miss out on U.S. capital markets; most will likely turn around and hand the information directly to the IRS, rather than through the Canadian Government.
187 So while the plaintiffs can refuse to sign a waiver allowing release of their information, they will probably find themselves without a bank willing to work with “recalcitrant” account holders.188
In order to ensure that this important piece of scholarship is not lost, I include it here:
FATCA Article Bean Wright SSRN-id2570015 (1)
I welcome your comments on the Bean Wright article.
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@FuriousAC,
re your note;
“……Asked if they sought advice from Canadian Charter and legal scholars they said they had consulted but refused to name just who they consulted with….” http://isaacbrocksociety.ca/2015/02/28/adcsovereignty-fatca-iga-lawsuit-continues-to-be-newsworthy-and-provides-education-and-leadership-to-the-world/comment-page-1/#comment-5654156
I have just wondered on the ADCS challenge thread why they didn’t avail themselves of the opportunity to ask a ‘reference question’ of Canada’s Supreme Court before signing us all away http://ualawccsprod.srv.ualberta.ca/ccs/index.php/pr/776-reference-question via the FATCA IGA.
The feds weren’t even wiling to answer WHETHER they had asked for a legal opinion on the FATCA IGA, claiming that IF they had sought one, that it would have been privileged (see Blaze’s Access to Information requests and the many documents with even titles redacted). Their contempt for the citizens and residents they have a duty of care towards was amply manifest in that sort of deliberate and egregious stonewalling.
@Badger
I am always taken back to the video of the Senate Finance Committee hearing. My overall impression was of intent to pursue this course of action regardless of ANY obstacles , real or perceived, in their way.
They refused to even really discuss any of the presentations before them in any real and meaningful way and swept important advice from Professor Christians and Dr. Cockfield under the rug.
Treated Lynne Swanson, who was OUR representative presenter ( the people), as not important when her presentation went to the very heart and meat of the matter and she had the presence of mind to retort when told ‘Congress has spoken’ with ‘Parliament has spoken’-
The visuals told everything: The body language was of a shrug of the shoulder and open handed suplication as though they had done everything they could but since Congress had spoken there was nothing more to do than pass the damn thing. When in fact Congress had done NO such thing whatsoever. What they actually meant was that TREASURY had spoken. Now let’s look at THAT:
Treasury is an AGENCY and NOT the government. It was long known that Treasury had no legal authority to negotiate IGAs anywhere (only governments have the authority to negotiate tax treaty )or quasi tax treaty as some say the IGA is designated. So OUR government undertakes to negotiate an amendment to our tax treaty with an AGENCY and not the government knowing they are violating the rights of privacy and safety of the individual in all matters financial and otherwise and even discussed the idea of going around the probable cause issue with a police representative who said that he thought it would be so much easier if they could dispense with getting a warrant! Well, sure! Let’s just treat everybody as criminals before the fact and it makes it so much easier to catch the real criminals. This is not about catching criminals it is about fleecing everybody on the planet of everything they have , ever had or will have both they and theirs forever BY criminals. Our government knew it (and the banks knew it , know it and profit from it.)
We knew from the beginning they did not seek a question from the Supreme Court because they refused to discuss it.
And I will say once again the image of the banker swiveling in his seat with that sanctimonious smirk on his face will always linger.
He might as well have been twirling his greasy mustache with glee while Pauline is tied to the railroad track with the train barreling down on her! ( while our own government tied the knots on her ropes even tighter and removed the brakes from the train!!)
Except in this instance Pauline is tied to the tracks along with her whole family and generations yet unborn!
As the government had been warned by constitutional expert Peter Hogg that the IGA would likely violate the Charter, the very least the government should have done is refer said IGA to the Supreme Court for a ruling on its constitutionality. If the SC had ruled it in violation of the Charter, the government could then have gone back to the US and said “Sorry, our Constitution won’t let us do that. However, if we remove reporting requirements for USCs who are residents of Canada, the IGA would be good to go”. That the government did not do this relatively straightforward thing is mind boggling.
@Bubblebustin
“There was a rumour yesterday that someone smashed a bank window out in Thailand because of FATCA.”
Do you have a link or other reference to this story? Interesting development.
I believe it was someone on Brock, and they gave a only as much info as I did, Deckard1138.
Maybe someone with better search abilities than I have can find it…
Deckard and bubblebustin,
Publius gave the original reference: http://isaacbrocksociety.ca/2015/01/25/99750-more-needed-in-94-days-to-make-the-may-1-2015-payment-for-canadian-fatca-iga-lawsuit-il-nous-reste-99750-a-ramasser-pour-notre-poursuite-judiciaire/comment-page-13/#comment-5641100.
I can’t find any reference to it online. Publius?
Thank you, Calgary411.
EU banks won’t be able to turn away resident EU citizens from 18 September 2016 whether it likes FATCA or not.
http://www.regulationtomorrow.com/eu/payment-accounts-directive-published-in-the-oj/
Although an IGA’s reporting requirements won’t change, at least they can’t ‘deny’ banking services any longer.
Here are responses (posted with permission) of Professor Bean to a few questions I asked:
QUESTION: First, you note our press release statement that “FATCA … makes it mandatory for the Government of Canada to discriminate against Canadian citizens and residents, whom the U.S. deems to be ‘U.S. persons’, by turning over their private bank account information to the U.S. IRS.”
You say that this is our assertion, but do you feel that our assertion, as stated, is accurate or not?
QUESTION: Second, assume for the moment that Canada’s Charter is identical to the Fourth and Fifth Amendments. Would you say that the FATCA law imposed on Canada might violate these amendments, or is it really unlikely to do so?
QUESTION: Finally, you mention our concern that the FATCA IGA “agreement” (imposed under threat of penalty) disregards the principle of “sovereignty”. Do you believe that this is an accurate statement, or not?
“Best of luck with your crowd-funded litigation.
Bruce”
@Stephen Kish. Nice line of questioning. I have been after Robert Wood and Laura Saunders to interview members of Congress and the Treasury Department officials about the issues. The press does not seem to be asking the tough questions. I don’t know if you would have any better success. The US is ranked #49 on press freedom and perhaps lack of openness of the US government to questioning is part of it.
Here is the beyond the nine dots thinking on this. We get Tricia Moon on the Opera Winfrey show with Ginny and Gwen there by video-conference.
” But “real” (not accidental) American citizens in Canada, and Canadians in the US and elsewhere, should expect to have their bank account data fed back to national tax authorities.”
WTF are ” “real” (not accidental) American citizens in Canada”!?
This is where USA’s unique to the world CBT falls down when compared to the norm of RBT. No one agrees on the definition of a “real American citizen”, but everyone knows what it means to be a resident.
Also, does Bean head not get that “Canadians in the US and elsewhere” are not subject to CBT and thus it doesn’t matter if “their bank account data is fed back to national tax authorities”?
Grrrr!
Opera Winfrey? Trish, can you sing?
Good point, WhiteKat.
@Bubbles, well I heard Trish is musical.
One issue I thought about regarding the IGA Canada signed. Maybe Canadian Cop could give us a heads up on this. We all know the IGA was signed under threat. When a criminal is arrested and brought in for questioning, he/she is asked “are you making this statement under force or threat” If the answer is yes, the answer is not accurate or in other words, useless. Under criminal law in Canada, what part of it pertains to the idea of something being done because of threats? does this law strike down the IGA?
@NC, you are dreaming. US trumps Canada.
@WhiteKat ADCS is about ADCS trumping the US via the courts.
@JC, don’t get what you said, but whatever, we are on the same side.
@WhiteKat & Bubbles
I don’t “do” Opera. LOL
I was not spelling Oprah right as in Oprah Winfrey Show: http://www.oprah.com/app/the-oprah-winfrey-show.html
“We get Tricia Moon on the Oprah Winfrey show with Ginny and Gwen there by video-conference (because they might be seized by the US at the border ).”
Tricia did so well on that one TV show. One may only hope for a PR masterstroke in the US homeland to highlight the injustices.
@Trish@WhiteKat
This is the comment I agreed with:
http://isaacbrocksociety.ca/2015/02/28/adcsovereignty-fatca-iga-lawsuit-continues-to-be-newsworthy-and-provides-education-and-leadership-to-the-world/comment-page-2/#comment-5669929
Does Oprah still have a show?
bubblebustin, She does, but not on *mainstream* TV. I don’t even have a TV, but this is what I found: http://www.oprah.com/index.html
and, in case any Twitterers want to tweat: https://twitter.com/oprah
@Tricia Moon
“What Prof Bean neglects to notice is that both are CANADIAN CITIZENS.”
Although I agree that Prof Bean never mentioned this, I’m unclear why you and others find this omission to be so offensive. AFAIK all statements made by Prof Bean about the plaintiffs are correct. Moreover, it IS noted by Prof Bean that both plaintiffs are Canadian residents. Moreover, it is noted that the plaintiffs are asserting claims under the Canadian Charter of Rights and Freedoms. AFAIK the protections afforded by the Charter apply to both Canadian residents and Canadian citizens, so I’m not clear why the omitting of the fact that they are Canadian citizens is so important to be deemed offensive.
Prof Bruce Bean and Abbey Wright, Esq seem quite sympathetic to the ADCS, actually–which impresses me–although in the end they are also rather pessimistic–and that part does disappoint me as well.