The US Department of Justice has issued a 57-page response to the filing of a Motion for a Preliminary Injunction by the James Bopp FATCA repeal legal team. The DOJ’s argument begins as follows:
Plaintiffs seek an extraordinary order that would halt enforcement of several duly enacted statutory provisions, along with associated regulations and implementing international agreements, aimed at curbing offshore tax evasion. The challenged laws are essential to tax enforcement, and the injuries that plaintiffs allege they have suffered as a result of such laws are self-inflicted, speculative, or even illusory. Plaintiffs’ claims for relief fail for lack of Article III standing, are jurisdictionally barred by the Anti-Injunction Act, and are meritless as a matter of well-established constitutional law. The preliminary injunction should be denied because plaintiffs have no likelihood of success on the merits and have no irreparable injury—certainly none to outweigh the great harm that the Government, and public interest in general, would suffer if enforcement of these laws were enjoined.
Republicans Overseas and others are reacting strongly to DOJ’s victim blaming tactics. Here are links to the original story at Republicans Overseas and to John Richardson’s comments at ADCS.
Here, again, is the complete DOJ document: DEFENDANT’S MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
It is obvious that victim blaming is, and will continue to be, a central tactic of this Administration, as it is finally put on the defensive and forced to justify its outrageously discriminatory and immoral FATCA campaign. Now may be a good time to remind ourselves of the essential characteristics and dynamics of victim blaming, which easily scale from the most primal one-on-one bullying to the systematic targeting and abuse of entire groups by the state. Here are a couple of good references to start with:
Victim-blaming is a phenomenon that has been happening since at least the beginning of recorded history but has only recently been identified as a dynamic used to empower the criminal and maintain the status quo. Victim-blaming occurs when the victim of a crime or abuse is held partly or entirely responsible for the actions committed against them. In other words, the victims are held accountable for the maltreatment they have been subjected to. Perpetrators of crimes for which they blame the victim commonly enjoy a privileged social status opposite the victim, and their blame typically involves use of stereotypical negative words. The phenomenon of victim blaming is thus common in hate crimes, discrimination, rape and bullying. The main motivation for people to victim-blame is to justify abuse or social injustice. However, it is not only the perpetrator who engages in the victim-blaming. Perpetrators, bystanders and society and even the victims themselves practice and enforce victim-blaming. Each group of people who blames the victim does so for different reasons based on their power or lack thereof, self-defense and desire to find logical reasons for abuse or social injustice.
William Ryan coined the phrase “blaming the victim” in his book Blaming the Victim in 1971, as a response to years of oppression and the civil rights movement. He describes victim- blaming as a way to preserve the interest of the privileged group in power (Zur). Since then, advocates for crime victims, particularly those of rape, have adopted the phrase. Although Ryan coined the phrase, the phenomenon is well developed in psychology and history. As previously stated, victim-blaming has been happening at least since the beginning of recorded history. There are many examples of victim-blaming in the Old Testament regarding tragedies justified by blaming the victims as sinners (Robinson 141). Unfortunately, victim-blaming is still rampant today and has only recently been identified as problematic.
Victim blaming is not just about avoiding culpability—it’s also about avoiding vulnerability. The more innocent a victim, the more threatening they are. Victims threaten our sense that the world is a safe and moral place, where good things happen to good people and bad things happen to bad people. When bad things happen to good people, it implies that no one is safe, that no matter how good we are, we too could be vulnerable. The idea that misfortune can be random, striking anyone at any time, is a terrifying thought, and yet we are faced every day with evidence that it may be true.
In the 1960s, social psychologist Dr. Melvin Lerner conducted a famous serious of studies in which he found that when participants observed another person receiving electric shocks and were unable to intervene, they began to derogate the victims. The more unfair and severe the suffering appeared to be, the greater the derogation. Follow up studies found that a similar phenomenon occurs when people evaluate victims of car accidents, rape, domestic violence, illness, and poverty. Research conducted by Dr. Ronnie Janoff-Bulman suggests that victims sometimes even derogate themselves, locating the cause of their suffering in their own behavior, but not in their enduring characteristics, in an effort to make negative events seem more controllable and therefore more avoidable in the future.
Lerner theorized that these victim blaming tendencies are rooted in the belief in a just world, a world where actions have predictable consequences and people can control what happens to them. It is captured in common phrases like “what goes around comes around” and “you reap what you sow.” We want to believe that justice will come to wrongdoers, whereas good, honest people who follow the rules will be rewarded. Research has found, not surprisingly, that people who believe that the world is a just place are happier and less depressed.
But this happiness may come at a cost—it may reduce our empathy for those who are suffering, and we may even contribute to their suffering by increasing stigmatization. So is the only alternative to belief in a just world a sense of helplessness and depression? Not at all. People can believe that the world is full of injustice but also believe that they are capable of making the world a more just place through their own actions. One way to help make the world a better place to fight the impulse to rationalize others’ suffering, and to recognize that it could have just as soon been us in their shoes. This recognition can be unsettling, but it may also be the only way that we can truly open our hearts to others’ suffering and help them feel supported and less alone. What the world may lack in justice we can at least try to make up for in compassion.
@Duality, I am as outraged by FATCA and other aspects of US extra-territorial taxation as you are. My letter from “Uncle Sam” was an attempt at parody, to emphasize the absurdity of the DOJ’s blaming of Americans Abroad for FATCA problems. Maybe someone can write a “Dear Uncle Sam” letter in reply, to extend the satire.
Trudeau’s writings have sure survived the test of time. They’re even more true today than they were when first written decades ago.
No not that Trudeau, THAT one.
Especially liked the “second rate” part. And it is amazing how many homelanders believe that. If you follow the Kelly Rutherford battle for custody of her kids you will read people commenting “how is it possible that one take these american kids to a foreign country!” That must against the law! Those kids live in Monaco- one the the most beautiful and wealthiest countries in the world. If you listen to them it is like every other country is a third world hellhole. How did America become so terribly narcissistic?
Dear Uncle Sam,
Thank you for pointing out the error of my ways. I now realize what a mistake it was for me or my parents to choose to live in [insert name of country of residence]. I would of course like to relocate immediately to the good old U.S. of A. However, because of FATCA my bank accounts are now frozen. So I cannot access the funds required for the trip.
Maybe you could send the Marines to rescue me from this predicament in this hell-hole of a friendly country. I understand that the availability of that service is one of the main reasons that the U.S. claims that I am subject to its tax laws.
Thank you in advance.
Most sincerely, your obedient Niece/Nephew,
Bubbles and Badger
I think the two of you just found the weak link in challenging cbt
Congratulation and your post should be a front page item for the ibs collective
Bubbles and we make it more compelling with the myth of dual nationality because the Usa is on record in various halls to that effect
Dual nationality is also the way to overturn cook because when it was rendered it was impossible to obtain or retain another nationality. You were either Usa or something else so this means cook is no longer settled law under stare decsis
Now could cbt and cook have been challenged ten years AGO? Probably not because today’s disadvantages did not exist.
Guess what this theory in court could someday benefit calgarys disabled son. I say that because the state department has an unstated presumption of benefit for Usa citizenship and that is why they will not let a guardian renounce even if they came up with a new catagory of allowing resumption as most of the west allows in other ways.
Calgary can not renounce for her son because the Usa citizenship he has solely and absolutely beneficial. That partly stems fromm cook and the benefit presumption.
Bravo to both of you having found the lock pick.
My brain lacks the horsepower to formulate any of the above discussion into a constructive legal argument against CBT. Perhaps you, badger and others can do better at connecting those dots.
The “tax”, like the firetrucking law and same politicians, assumes that any capital that they don’t already know about are profits from something that they had not previously taxed. It’s only a tax if one believes that the person is guilty just because the govt doesn’t already know about every detail of your life.
What really annoys me about the US Government’s defense is it makes the US Government the injured party because they can’t enforce FATCA.
So resident citizen’s aren’t injured because FATCA changes their relationships with their local government, financial institutions, people and their personal security. In short they can’t operate the same as other fellow citizens in their resident country. Furthermore, it’s their own fault they left the US all together.
My response to the DOJ and the Obama administration – BOLLOCKS.
@george, I too have not enough legal knowledge to formulate any compelling enough argument, but I do think that bubblebustin’s astute observation, and yours about the change that took place after the US decision that allowed for maintaining dual citizenship status without losing the US one setting the stage for – an important for us – stark and demonstrable collision with “…the state department [has an] unstated presumption of benefit for Usa citizenship..”.. which could potentially be very useful – particularly in raising the case of minors and those deemed legally incompetent – as to the injury they are sentenced to endure by the US via US extraterritorial taxation of their legal local education and disability savings and benefits.
It has always seemed particularly indefensible and inherently contradictory to me that the most vulnerable (minors and those deemed legally incompetent based on disability) are at once firmly deemed by the US to be competent enough to be forced to file their own FBARs and US tax and information forms (as potential tax evaders, drug lords, terrorists, etc.) , and thus also legally held liable by the US state apparatus for confiscatory and possibly unconstitutional US penalties, yet they are also deemed at one and the same time by the US state apparatus to be uniformly legally incompetent to exercise their right to renounce – based on their legal incompetence.
The US State issues the same advice of the White Queen in Alice and Wonderland:
……..”Alice laughed. “There’s no use trying,” she said: “one can’t believe impossible things.”
“I daresay you haven’t had much practice,” said the Queen. “When I was your age, I always did it for half-an-hour a day. Why, sometimes I’ve believed as many as six impossible things before breakfast.””
The US, via its state apparatus – the State department and US Treasury – who demands that we believe and accept as many “impossible things” as it chooses to create and promulgate, regardless of the result and the harm it creates.
That appears to me to be a very weak area. Even more so as the US implements a disability savings plan with US tax advantages for US residents, but actively taxes and penalizes the equivalent held by so-called ‘UStaxablepersons’ outside the US – most glaringly in Canada where the most pseudo-favourable of the US tax treaties exists.
The US state is only able to get away with this because the DOJ and IRS relies on the probability that no-one would choose to put their vulnerable minor child or disabled dependent at huge risk and legal costs to expose them to current tangible US state sponsored harm in order to prove concretely what the US DOJ defense to the current suit against FATCA and extraterritorial CBT has demanded in their argument to negate the claims of the plaintiffs). They claim that the plaintiffs must demonstrate a current tangible harm rather than what they willfully choose to try and characterize; “….. the injuries that plaintiffs allege they have suffered as a result of such laws are self-inflicted, speculative, or even illusory.”
The fiction that we are ‘US residents for tax purposes’ no matter where in the world we have been no matter for how long, the indefensible fiction that the mere physical location on earth where our mother happened to be lying during our birth, or where our parent’s parent lay during their birth is a sufficient basis for lifelong extraterritorial taxation, and the fiction that children and those deemed legally incompetent have the wherewithal to be active evaders of US taxation and criminal masterminds is so absurd that the US should be laughed at and mocked by the rest of the world.
Only the US power and willingness to use extortion and any other means allows it to get away with forcing us and the rest of the world to bow to those ‘impossible things’ re the peculiar institution of US extraterritorial taxation. In terms of justification and rationale, the US Emperor has NO clothes, but the rest of the globe (ex. the Harper Con government) colludes with him for a range of their own reasons and aims, and because as we know, the US relies on ‘MIght makes Right’ as domestic and international policy.
“…any benefits we derive from US citizenship too are “mythical”, “illusory” and “unintended”, while living outside the US.”
The benefits theory as legally presented in Cook v. Tait:
a) is purely about presumption, not about fact; and
b) is actually a legal mis-statement by Justice McKenna, who tried but failed to accurately cite what was said about benefits in a previous case.
It’s only in a world where impossibles exist that the tax obligation to receive a benefit is the primary (and perhaps only) disadvantage in maintaining that benefit.
When paying taxes is a moral requisite for maintaining citizenship (I say moral, because many non-residents owe no tax), what happens to the value of citizenship when someone like Rand Paul institutes a flat tax on money earned solely within the US? Interesting in that case our benefits would presumably endure, making them not contingent on paying taxes at all!
“Dual nationality is also the way to overturn cook because when it was rendered it was impossible to obtain or retain another nationality.”
That’s not true. A person could be born with multiple nationalities even if the US didn’t recognize the other nationalties. The US used to have a law stripping US citizenship of someone who had another nationality and lived outside the US for too long; the US used to have a law requiring holders of multiple nationalities to choose between US and the other(s) by a certain age, etc.
“You were either Usa or something else so this means cook is no longer settled law under stare decsis”
Stare decisis is already dead. You can figure that out from looking at circuit court rulings that overturn Supreme Court rulings, and trial court rulings that overturn both Supreme Court and circuit court rulings, with active consent by circuit courts and passive consent by the Supreme Court.
“Now could cbt and cook have been challenged ten years AGO? Probably not because today’s disadvantages did not exist.”
Some of today’s disadvantages did already exist 10 years ago. TD Waterhouse’s Canadian operations deducted both Canadian and US withholding from Canadian-sourced interest payments to my account in 2002; Canadian withholding was correct since I live in Japan. A Japanese stockbroker asked if I was a US citizen and refused to open an account in 2003.
Time for everyone to squeeze a little. I just sent one via PayPal to get it below $1,000.00. Anybody?
I apologise once again for my remarks since I thought you were an anonymous visitor to this website, criticising us for not eating the toxic alphabet soup of CBTFBARFATCA. Because I am so angry over Washington’s monstrous f***-up, I usually end up taking any criticism literally and seriously (though this approach has its unintended consequences!). The parody was very good since it got me to react…!
If I were to write a “Dear Uncle Sam” letter, it would not be in English but in my native tongue. And I can bite worse than a very, very angry cat when writing.
I would like to think that Uncle Sam (a.k.a. the US Government) will come to his senses one day. Unfortunately, he is, in fact, a machine that has created a mind of its own and developed its own twisted will and agenda. On the tax front, it is unparalleled. If Ginny and Gwen win their lawsuit, will this effect a change in US tax policy? Will the Canadian lawsuit have a domino effect across the world? Time will tell. But at the end of the day, all of us here at this website and others across the world can only wonder and conjecture.
I endeavour to remain hopeful…
@Only A Canadian
Yeah it now reads $666 to the upside down Aussies. How fitting. Just last week I refused to get in the same downward directed elevator as Harper’s attorneys. With those guys in the elevator I couldn’t be sure it would stop at the ground floor if you know what I mean!
I would have acted like one of my kids… cough… traitor…. cough… traitor… cough,,,, useless idiots on my dime…. lol…
U are way better a person then me… My family calls me mouthy & snarky… no clue why… I wasn’t the one who got tossed by a ref during a child’s game…. lol
@Dash “With those guys in the elevator I couldn’t be sure it would stop at the ground floor if you know what I mean!”
Best line of the day (other than the one on the lead post)!
My 2 cents to add the comments listed thus far:
Has no one noticed that the DOJ thereby lumped all the plaintiffs together, seemingly ignoring that Plaintiff #1 is a U.S. senator? I have zero background in law but it seems blatantly obvious to me that these lawyers show pure incompetence by starting off by arrogantly asserting:
The preliminary injunction should be denied because plaintiffs have no likelihood of success on the merits Plaintiffs’ claims for relief fail for lack of Article III standing, are jurisdictionally barred by the Anti-Injunction Act, and are meritless as a matter of well-established constitutional law. The preliminary injunction should be denied because plaintiffs have no likelihood of success on the merits . . .
To me, it seems obvious these DOJ lawyers don’t know U.S. law!!! How could Plaintiff #1 fail to be under the jurisdiction of U.S. law? What other jurisdiction would possibly apply? Also, any H.S. student who passes their mandatory Government course knows that the Senate get the job of voting on tax treaties. Obviously, this senator is simply demanding that the U.S. law be enforced. (While the IGAs are not called tax treaties, they are agreements with other countries largely for the purpose of the U.S. collecting tax information from these countries financial institutions, hence in substance, they serve as tax treaties). The motion by Plaintiff #1 is therefore hardly “meritless”.
Next point, at least two plaintiffs are U.S. veterans who supposedly defended American freedoms. How are these veterans supposed to keep a tie to their American heritage and also a bank account when FATCA scares banks away? That is what their case is about, and given the essential services banking provides in this century, the case certainly has merit. Would the lawyers like to switch shoes and be denied any local banking accounts? Don’t think so. Really, the statement makes me suspect that the lawyers didn’t bother to actually READ the statements involving all the plaintiffs but skipped over that section. Pathetic!
“To me, it seems obvious these DOJ lawyers don’t know U.S. law!!!”
They know it, but it isn’t their job to obey it or apply it, except when it happens to suit their needs. Also when they know facts, it isn’t their job to state facts, except when it happens to suit their needs. Their job is to win the case, by inventing whatever arguments they need to invent. If their inventions are insufficient, the judges will invent more for them, but the DOJ still has to do its job.
“How could Plaintiff #1 fail to be under the jurisdiction of U.S. law?”
DOJ said standing not jurisdiction.
“Also, any H.S. student who passes their mandatory Government course knows that the Senate get the job of voting on tax treaties.”
That’s only what the US Constitution says. Government employees and judges take turns at deciding what the government will actually do, and the piece of paper written by dead white males is just a piece of paper.
“Next point, at least two plaintiffs are U.S. veterans who supposedly defended American freedoms.”
The ethics classroom is that way ———–>
It’s nowhere near the law classroom.
It is time to sue the bastards over the fraudulent use of the word “resident” for tax purposes. We are not US residents – period! Moreover, it is a “myth” and “illusion” that Americans benefit from the US government when living outside the borders of the Homeland. Any residual or perceived benefits as such are completely dissolved by the overwhelming liabilities that continue to pile upon us. Enough is enough, it is time to sue the bastards.
It is my understanding that the Anti-Injunction act applies to taxes. FBAR fines are not taxes, they are fines, and excessive ones at that, particularly when applied to the life savings of non-resident Americans.
“It is my understanding that the Anti-Injunction act applies to taxes. FBAR fines are not taxes, they are fines”
That was the reasoning used by US Supreme Court when they ruled that they had jurisdiction over the Obamacare act.
It’s a tossup whether that precedent will apply to other cases. Courts cite precedents when they find it convenient, and ignore precedents when they find it convenient.
One might think that when a fine is not a tax, the Fifth Amendment guarantees that deprivation of property cannot occur without due process, so when no court has jurisdiction the deprivation cannot occur. But the Fifth Amendment is a piece of paper written by dead white males, so it needs to be ignored when it’s not convenient to government or courts.
Precisely. The U.S. Government consider “standing” on one’s (imposed) citizenship as being resident in the country of (imposed) citizenship, wherever in the world. In the eyes of Americans, the sovereignty of other countries is simply at the discretion of the U.S. Government. Even after the hypothetical scenario of the abolition of CBT-FATCA-FBAR, would you ever want to go back to the States, even just to visit as a tourist? I wouldn’t, never ever…