via Keith Redmond:
It is not about being Republican, Democrat, or unaffiliated, it is about OUR RIGHTS as US citizens living overseas!
“Republicans Overseas Action just filed FATCA/FBAR Complaint and Motion for preliminary injunction against Obama regime and the IRS with eight counts constitutional violations in the U.S. District Court for the Southern District of Ohio at Dayton on behalf of 8.7 million overseas Americans. In addition, we want the federal court to stop Obama’s IRS by immediately issuing a preliminary injunction that will protect Americans overseas from FATCA and FBAR until a trial can be held by the court. Please see ROA Press Release, Ten Detailed Points, and Description of Each Plaintiff below.”
This is SO exciting! And incredibly satisfying for me personally as the suit will be heard in my hometown! Shared with non other than Douglas Shulman…the Gem City’s own favourite son…..Ironically enough, a statement by Mrs. Obama describes our situation very well:
Washington Times
“Rand Paul sues Obama over foreign banking law
FACTA blamed for causing overseas Americans to renounce citizenship
UPDATED: Complaint, Exhibit, Memo, & Motion
D. 1 – Complaint
D.1-1 – Exhbit 1
D.2-1 – PI Memo
D.2 – Motion for PI
Response of Democrats Abroad:
Kudos to Stephen Kish, Plaintiff #4.
I am really amazed that DA is condemning a law suit. As mentioned above, their true colors are showing.
What happened to DA’s respect for checks and balances? The fact that they condemn Bopp because he won a case in the SCOTUS is an insult to a sacred organization, and the 3rd pillar.
DA – shame on you. One more reason to give Rand my vote.
Hats off to IBS for hosting this platform!
BTW – anybody notice ACA’s reference (ie endorsement) of safe gar our initiative of DA … while remaining mum on RO’s lawsuit.
Smells fishy to me …
Orwell: ACA seems to be on the same page as DA.
They all also pay lip service to CBT.
Since people ensnared in CBT are few and not influential, votes won’t do it. Only actions such as these (Arvay, Bopp) can speed up recognition, or even, hopefully, topple application of FATCA.
I’d love for the IGAs to be neutralized. FATCA alone would be great. On one hand it would be a huge pain everywhere for big banks, and it would force them to jettison US persons even faster than now. On the other hand lots of banks that have no US dealings could just ignore FATCA.
The ACA’s silence is deafening if not irrational. The US Congress is no friend of the ACA even after all their wining and dining of politicians. The ACA should change its mission to ‘defending the rights of US citizens abroad against the US Government’ and work the EU to defend those rights of many dual citizens.
The DA approach with that ‘safe harbour’ non-sense solution is a farce.
Let’s hope the injunction is granted and stop at least 3 IGA’s in their tracks. Question?
Without finding plaintiffs for each country / IGA, would it be possible to get an injunction for the remaining IGAs until the case is finally settled?
Don –
I think ACA can be left alone … and we can put our hopes in legal battles and AO:
http://www.americansoverseas.info
ShadowRaider- I understand and share your concerns. I trust that Jim Bopp thought this through and let’s see what the court does with the inevitable government motion to dismiss. Also I do not understand why CBT was not challenged but there must be a strategy here that cannot be shared at this time.
Another question that should be considered if the court rules in our favor in the initial challenged is whether it makes sense for third parties to seek to file friend of the court briefs. Organizations such as IBS, Americans Abroad and others can add more voices to establish the harm caused. Perhaps friend of the court briefs can be filed in support of the motion for preliminary injunction to help establish the irreparable harm? This would of course have to be discussed with Jim Bopp.
How lovely to see the true spineless Bstrd’s of DA. What a bunch of Dem spin. How arrogant of this organization to tell us what is right and wrong. For these expletives to say the “safe harbor” is sufficient is
a true insult to our intelligence.
It has become more than apparent this injustice needs to be attacked aggressively and not just with
“pretty please cherry on top” requests and “door knocks”(what a joke those are).
Let DA put forth action (which we all know will be lame) and let the Republican efforts go their way.
In other words, ATTACK ON AS MANY FRONTS AS POSSIBLE.
History shows multiple front efforts have the most profound effect on any opposition (just ask Hitler).
So good this is beginning to gel on more than one front and let DA keep doing those “door knocks”
which they so proudly claim but have resulted in ZERO NOTHING results.
Alas, nothing to show for all those worn knuckles except less and less votes for Hillary in 2016.
And that is the next front… a strong effort for all overseas Americans to vote the Republican ticket.
It is possible that this is simply part of the Bopp team’s strategy; however, at face value, the initial news from Judge Rose regarding the injunction doesn’t seem good:
Full docket text:
NOTATION ORDER striking [2] Motion for Preliminary Injunction. Plaintiff’s Motion for Preliminary Injunction [2] is struck for failure to comply with General Order No. 12-01, Pretrial and Trial Procedures (Dayton), Discovery and Motion Practice § 2.2. Signed by Judge Thomas M. Rose on 7/15/15. (ep)
I hope that this is merely a minor procedural issue and a corrected, approvable, injunction can be filed soon. The case itself remains active.
Thanks to the brave and noble plaintiffs and their counsel ! May their actions embolden others to fight the good fight !!! This is not just about taxes, and not just about FATCA, it is about respect for fundamental rights and the Constitution, and the longevity and viability of modern democracy.
Thanks to all of you here at IBS. Thank you for being here and accompanying each other through these “interesting times” we are living through.
@ Dash1729
I wish I understood the court system better (or even a smidgeon) but I’d hate to see the injunction part struck down so early in the process. I’ll leave it to Jim Bopp and hope he’s every bit the superlawyer he is touted to be.
Thanks for following this, Dash1729. Does or doesn’t seem good — we need to know.
@EmBee
Agreed–and I’m really glad that Bopp is at least going for an injunction–and that Arvay will request the Canadian court to grant what amounts to an injunction if a full decision on the summary trial cannot be made by Sept 15. With pressure on more than one front something has to give soon!
@Don
I think that the so-called “safe harbor” provisions proposed by Democrats Abroad are a real non-starter, especially the following:
“no foreign financial institutions would have to file FATCA reports on the accounts of US-tax compliant Americans residing legally in the same country.”
The problem with this is that it puts the bank in the position of determining whether the person is US-tax compliant, whether the person is an “American”, and whether the person is residing legally in that country. Banks aren’t qualified to do this, and any bank faced with making this decision (and faced with the 30% penalty for erring on the side of failing to provide a needed report) is going to simply continue doing what they’ve been doing since FATCA started being enforced: close or deny accounts or just turn the data over for anyone with a whiff of “US personhood”.
I dont know what general order no. 12-01 means, but I would think Bopp knows exactly what he is doing.
Dash,
Could you kindly provide a link for the info you posted regarding the denial of a preliminary injunction?
Or is this a matter of a paid subscription to Pacer, etc?
‘The tax code clearly specifies that the DC courts should be used for judicial purposes for people who don’t live in the US.’
Sort of. If the wording is taken out of context then it’s clear, but putting it in the context of definitions instead of jurisdiction sure didn’t help clarify it. US Courts have a web site where you can find your district court district based on your state and city of residence, and that also doesn’t find the DC district for most people who need it.
However, FBAR isn’t tax. Courts have bent over backwards to distinguish FBAR from tax. DC doesn’t have jurisdiction unless there’s some other definition hiding somewhere that I didn’t find.
I’m not sure if FATCA is tax.
‘Neither the intention nor the text of the law are aimed at any class of people.’
Some kinds of laws are recognized as providing unequal protection when they have a disproportionate impact on a class of people. Compare FATCA to tax forms. Form 1116 has been adjusted over the years so that it poses fewer problems for certain classes of people, but Form 2555 poses huge problems for some classes of people. FATCA poses huge problems for non-residents.
‘I’m not a lawyer, but it seems to me that “fear” of a penalty is not a valid basis for a lawsuit.’
I think it is. In National Federation of Independent Business v. Sebelius, 567 U.S. ___ (2012), No. 11-393 (http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf), the Supreme Court ruled that it had jurisdiction over the case, even though the plaintiffs lost.
@Tricia Moon
You are right–it is a matter of a paid subscription to Pacer:
You can create an account here:
https://pacer.login.uscourts.gov/csologin/login.jsf
And then you can go here and select ‘Ohio Southern – ECF’ from the middle column of links (US District Courts). It is a fee for service thing so you only pay for what you buy. A simple response such as the injunction thing above which fits on a single page seems to just be 10 cents. Longer things like the full filing cost more. So I’ll probably log in there periodically but not every hour because the costs, although small, could begin to add up if I check everything too frequently.
You can search for this case using the surname and given name of any plaintiff–all seem to work.
@Tricia Moon
The page with the individual court links such as ‘Ohio Southern – ECF’ may be found here (after you’ve created an account):
https://www.pacer.gov/psco/cgi-bin/links.pl
Here are some cases Judge Rose is presiding over:
https://dockets.justia.com/search?court=ohsdce&judge=Thomas+Rose
@Shadow Raider Surprise you have expert knowledge in the topic – more expert in many ways than the Bopp team. One would hope that the Bopp team tap into such expert knowledge of yourself and of others in the community – perhaps some advisory board? You list some drawbacks, how about some positives?
@Norman Diamond. It sounds like you have some expert knowledge in the legal technicalities. Are you a lawyer? Thanks for your comments.
@ShadowRaider, I don’t know enough about this to weigh in, but how does what you said “ount 1. The tax code does give the Treasury the authority to negotiate agreements for the exchange of tax information with other countries (26 USC 274(h)(6)(C), the section seems out of place as everything else in the tax code, but it’s there)” accord with the doubts expressed by Prof Christians re authority?
Christians, Allison, The Dubious Legal Pedigree of IGAs (and Why it Matters) (February 11, 2013). Tax Notes International, Vol. 69, No. 6, 2013. Available at SSRN: http://ssrn.com/abstract=2280508
http://taxpol.blogspot.ca/2014/07/irs-claims-statutory-authority-for.html
http://www.lexisnexis.com/legalnewsroom/tax-law/b/fatcacentral/archive/2013/03/05/irs-brushes-aside-the-constitution-to-make-way-for-fatca.aspx
http://profwilliambyrnes.com/2014/07/05/has-treasury-changed-its-position-regarding-capital-flight-resulting-from-fatca/
and possibly http://directory.libsyn.com/episode/index/show/mljpodcast/id/2687838
“@Norman Diamond. It sounds like you have some expert knowledge in the legal technicalities. Are you a lawyer?”
No, I’m learning legal technicalities the hard way, and getting abused by courts even worse than by the IRS, even worse than the original abuse of having my withholding stolen by IRS data entry clerk Monica Hernandez. People call me cheap for not hiring a lawyer, yeah right, if I hired a lawyer the fees would have come to about 15 years of my salary by now.
If I’d been a lawyer, you wouldn’t have found me doing anything stupid like writing honest declarations on a US tax return. The experts know that the IRS needs returns to be processable not truthful. Also if I were a lawyer I’d have contacts to get some news published, such as the Federal Circuit’s ruling that fabrication of social security numbers is now required by law (which used to be illegal).
Some comment about “equal protection” and accounts of US persons overseas treated the same as US residents with overseas accounts. Yes I may see as true.
However, if one looks at the types of accounts then the inequality becomes apparent. Overseas: your bread and butter accounts to receive the pay and pay the bills with no extra effort to hide or conceal & to have in another country would be impractical, and they are accounts within your country of residence. The accounts the laws are intended to punish tend to be for US residents with accounts in another country for investment or business purposes.
@Norman Diamond Sounds like some expert knowledge and personal experience with injustices.