188 thoughts on “Finally the Bopp Suit has Arrived!”

1. I suppose I may agree with Ted Baumann that not submitting legislation to Congress to repeal FATCA is a dilatory tactic.

   Think it through. Republicans put the legislation up. They control both House and Senate. They get it passed. It lands on Obama’s desk. If he blocks it, IMO it only adds more to the case against the Democrats – puts them on the spot more. He could sign it and thereby bypass opposition and flak over FATCA. Is that what the Republicans fear? No lawsuit (the lawsuit is against FBAR Excessive fines as well), US persons overseas less upset?

   However, I get the feeling that RO has a sense that those in Congress need more education and that this may take time. My response, a good way would be to put FATCA repeal legislation infront of them.

2. http://www.bna.com/hearing-set-injunction-n17179935160/

   On Sept 4th the courts will hear Jim Bopp’s motion for an injunction to halt reporting requirements.

3. Which suggests that the judge dismissed the DOJ’s 57-page request to deny the motion for an injunction. As I recall, our side had something like 5 days to rebut any objection from the DOJ. Does anyone know if such a thing was filed? If not, and if the judge nevertheless rejected the DOJ request to deny the motion, then that is a very good sign that he needs no convincing of the seriousness of the arguments against FATCA, at least.

4. “Which suggests that the judge dismissed the DOJ’s 57-page request to deny the motion for an injunction.”

   Possibly but there are other possibilities too. The DOJ might not have submitted a corrected objection.

   The court could still grant or deny the motion whenever it wishes. In Federal Circuit, if a party files a motion, the opponent can file an objection within 10 days from the date the motion was served. The DOJ served me by a method of mailing that usually takes around 8 days for delivery when December isn’t part of it (around 20 days for delivery when December is part of it). The court granted the DOJ’s motion 5 days after the DOJ served it, with the court’s assertion that the opponent didn’t object. You see, the court doesn’t even have to obey its own rules, let alone laws or precedents from other courts, except when the court finds it convenient to do so.

5. According to the Republicans Overseas facebook site, posted August 6 2015:
   “The Dayton Federal Court orders the following:
   1) the U.S. Treasury, IRS, and Financial Crimes Enforcement Network aka Defendants’ responses to Republicans Overseas Action’s Motion for Preliminary Injunction remain due on August 12, 2015 (which is about one week from the conference date of August 4),
   2) Republicans Overseas Action seven Plaintiffs’ reply to Defendants’ responses is due on August 26, 2015 (Republicans Overseas Action gets two weeks for replying), and
   3) a Preliminary Injunction hearing will be held on Friday September 4 at 1:30 p.m. in Dayton.”

6. from BNA, Inc. Daily Tax RealTime / BNA Highlights:

   Plaintiffs in FATCA Case Fire Back at Justice Department

   Posted August 26, 2015, 4:36 P.M. ET

   By Alison Bennett

   The plaintiffs in a case seeking to get the Foreign Account Tax Compliance Act and its accompanying intergovernmental agreements declared unconstitutional filed a response today attacking the Justice Department’s defense of the law and the IGAs.

7. Re: Nestmann
   to me
   Hello Jak,
   Thank you for sending this over. I will pass this information along to Mark.
   We appreciate the feedback!
   Michelle

8. I’m so pleased to see that the Bopp response filed today cites Professor Byrne’s article from just two days ago, demonstrating the IRS’s own lack of confidence in FATCA. The whole response document makes riveting reading.

9. @ Barbara
   I put the pdf aside thinking it would be hard to read but it really wasn’t too bad at all. There’s certainly no doubt about Bopp’s clarity and skill when he says, “Such prestidigitation is artful, and apparently necessary to the Government’s argument, but the sleight-of-hand should be understood as acknowledging that the two vital differences between FATCA and the IGAs are an inconsistency factually.” I’m impressed with FATCA Legal’s choice of lawyer and the fact that I’m starting to feel a bit more comfortable reading legalese.

10. “slight of hand” is a good way of putting it. It is really like throwing sand in the eyes of Americans – like to make them believe that all expats are fat cats committing tax evasion and not paying their “fair” share. If the words were true- the truth would come out.

11. Interesting Exchange here. The Australian Economics Legislation Committee Chair believes FATCA was passed by Congress.

    Economics Legislation Committee – 02/08/2011 – Exposure draft of the Business Names Registration Bill 2011 and related bills

    Mr AJ Burke : Just one final comment: a bit of a sidebar on the beneficial ownership matter that has come up in conversation. The requirements in relation to beneficial ownership are only going to get tougher. The international regulator for anti-money laundering, FATF, is reviewing its ultimate beneficial owner test, as we understand it. There is another piece of legislation emanating out of the states called FATCA—Foreign Account Tax Compliance Act—the purpose of which is essentially to stop US persons from avoiding tax but the ramifications of which are that banks and other financial service institutions are going to have to determine a US person status of all their customers, including beneficial ownership.

    Mr Hardaker : It is already law.

    CHAIR: That is already American law? And it is expressed to extend to the whole world?

    Mr AJ Burke : The whole world.

    CHAIR: Do we accept that it is binding on companies here?

    Mr AJ Burke : We are dealing with the government through Treasury on this matter. They are working with us on the implementation detail. I am not sure there is a government position on the legislation as a whole but rather on aspects of it.

    CHAIR: It is an interesting proposition that, because American congress passes a law and presumes to extend it to its companies or entities registered in the United States that work around the world, their legislation applies in other jurisdictions. You are saying whether it does or does not.

    Mr AJ Burke : It does because there is a nasty sting in the tail, which is a withholding sanction. If entities do not meet the FATCA requirements a 30 per cent withholding is applied to their gross receipts and payments

12. Isn’t Bopp back in court today? One of the assertions that concerns me is that the plaintiffs, as non-residents, are being treated differently than residents because of FATCA. My opinion is that the problem lies in the fact that we are being treated the same as residents, with no consideration of the fact that our bank accounts are in the countries where we live (regardless of the fact that EVERYONE is being targeted without probable cause). It will be very interesting to see how the judge views it. Wouldn’t it be great for any CBT lawsuit that a judge has determined it’s the way the US taxes it citizens that’s causing the problems, not FATCA itself?

13. This post may be appropriate in a thread Republicans Overseas strategy, yet this appears to be the closest to that. I asked a few questions of Solomon Yue, and post his reply (with permission):

    SEPTEMBER 12: JC Questions of Solomon Yue

    Hello Solomon –

    New question for you.

    You say that it is important to educate Congress about the harms of FATCA on US persons living overseas [and I presume also about the unfair extraterritorial aspects of Citizenship Based Taxation].

    1) Can we spark a study by Congress into the discriminatory impacts of US policy on US persons overseas? To help highlight the issues?

    2) The Senate Finance Committee recently (June) accepted comments in regards to international tax reform. 3/4 of the submissions were from US persons overseas. Nothing happened as a result of these submissions other than a recommendation by the subcommittee for the Chairman to take note. Anything happening there?

    3) Americans Abroad Caucus in the House. Only 4 Republicans out of 25 members. The Republicans control the House. May the Democrats (who tend to think they gain political advantage by branding all US persons living overseas as tax cheats) be run out of that Caucus? Or, at least reduced to the proportion of Democrats in the House?

    4) Americans Abroad Caucus: In the 113th Congress, Rep Maloney introduced the Commission on Americans Living Abroad Act (H.R.597) to ensure review of issues specific to Americans living outside the US. The terms of reference of this appear crafted by the Democrats and IMO has a very much “within the beltway” perspective. It needs to be replaced with something like:

    To assess areas of US policy discrimination of US persons living overseas including double taxation, excessive compliance, excessive compliance penalties, that the US does not care about the well being of these persons, and that the US provides $0 in services to these persons other than those provided on a fee basis. That these persons just want to be left alone.

    I was communicating with a few at The Isaac Brock Society about trying to spark (against the odds) an Australian Parliament Parliamentary Inquiry into tax treaty gaps. Yet there has been no comparable study by the US government. Why not?

    I believe a meaningful study by the US Congress may help in the education of US Congress Persons.

    I would be interested in your views on these matters, and ask your permission to post at The Isaac Brock Society.

    Regards, JC Double Taxed.

    SEPTEMBER 12: Reply of Solomon Yue

    To create a committee to study is a trick to bury the issue, not to educate. It gives legislators an excuse for not doing anything on FATCA.

    To educate is to lobby a legislator one on one for a vote and why he or she needs to vote on this bill .

    DA and DNC and their FATCA cheerleaders have done a very good job to label all expats as tax cheats. The purpose is to scare anyone who has courage to do anything for expats. It is a very effective tactic. I grew up in Communist China. They used the same tactic against political opposition by labeling you a counter-revolutionary first then executing you. As a result, no one would stand up for your rights anymore.

    Those two tweets are good example of labeling expats as felons and hiding assets:

    MR:S-BLoR ‏@MRSBLOR Sep 10
    @JCDoubleTaxed @SolomonYue @DemsAbroad Head of Reps Overseas isn’t overseas. Just another #GOP offshore #cashstasher hiding assets?

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    MR:S-BLoR ‏@MRSBLOR Sep 10
    @Myraoncomputer @JCDoubleTaxed @DemsAbroad @SolomonYue Felons don’t get to vote, but most Americans overseas can. Thus, representation.

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    As a result, a study is not going to change this.

    The other side knows this is political warfare. We have to have several phases of this campaign: phase one (the FATCA lawsuit), phase two (electing a GOP President to sign a repeal FATCA legislation), phase three (landing on FATCA beach to repeal FATCA legislatively), and phase four (liberating occupied Europe by replacing CBT with RBT as a tax reform package deal). Before we elect a GOP President and land on the FATCA beach we need to provide political cover for our Republican legislators in order to build political will to do the right thing. That is the reason we filed the FATCA lawsuit first. There are three ways to get things done in DC: 1) voting, 2) having a political party to fight for your issue, and 3) creating a NRA like lobbying organization to represent you. We are doing all three at this point. The only thing we could do but have not done yet is to use our Super PAC to target incumbents who are FATCA supporters. This requires more money then our FATCA lawsuit.

    Thank you.

    Solomon Yue
    Republican National Committeeman for Oregon
    Vice Chairman and CEO
    Republicans Overseas, Inc.
    Republicans Overseas Action, Inc.
    https://www.facebook.com/republicansoverseas
    Solomon@fatcalegalaction.com