56 thoughts on “With such an amazing group, it’s simply NOT possible to NOT succeed! Thanks from @ADCSovereignty”

1. @Norman:

   “Override” is a poor choice of words because it is a term of art and implies the legal power to do so. Furthermore the term “legislative override” is in common use, as when Congress enacted the AMT and the 3.8% Obamacare investment surtax, both of which supersede any contrary provisions of tax treaties. And lead to double taxation, 31.8% for example in the latter case, on capital gains of persons over the threshold amount in the UK.

   As for the exclusion of persons who were Canadian citizens at the time the allegedly unpaid tax accrued, I assume this was a Canadian policy point. US Treasury negotiators frequently agree to foreign policy demands.

   (1) The UK-US treaty provides that pensions for government service paid to a citizen of the paying country is taxable only in that country. (The clause does not bind US states, which are not parties to tax treaties: In re de Mey van Streefkerk, Calif. State Board of Equalization opinion 84R-1137, 85-SBE-135, Nov. 6, 1985 (Netherlands military pension).) By comparison, a USG retiree who moves to Canada must pay Canadian income tax on his CSR or FERS pension without deduction for recovery of his own contributions: Apgar v. Minister of National Revenue, 56 D.T.C. 132, 14 Tax A.B.C. 389 (1956).

   (2) The 2010 UK-South Africa Tax Protocol has no exclusion based on citizenship. It is also (as tax law and treaties often are) retroactive. Ben Nevis Holdings: http://www.mourantozannes.com/media/971914/ben_nevis_and_anor_v_commissioners_for_hm_revenue_customs___court_of_appeal_2013_ewca_civ_578.pdf (commentary) https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/412320/s-africa-uk-dtc-2011.pdf (Protocol)

   Garner and Sullivan were criminal cases and the Supreme Court decisions went against the accused. I’m not sure what your point is and anyway I somehow managed to graduate from law schools in two counties without ever taking a course in constitutional law. But I did do a quick check on JSTOR and here’s a 1989 article from the ABA journal The Tax Lawyer, “Self Incrimination on Income Tax Returns: A Compelling Dilemma” http://EmailLargeFile.com/d/2C9UYPSVAMC

   With the DoJ, Treasury and State promoting tax and extradition treaty clauses that wipe out any vestige of the Lord Mansfield dictum on taxes, and with the increasing assimilation of tax offences to money-laundering, mail fraud and terrorism I am concerned. The history of extraditions from Britain to the USA, based on a treaty that was hastily agreed as an anti-terror measure and has led to few terrorist extraditions but a number of white-collar crime ones is not good. Those extradited (such as the Natwest 3, accused of being involved in the Enron fraud, but not prosecuted in Britain) are typically threatened with fantastical multi-decade sentences, then encouraged to cop a plea for a shorter sentence. All without family, decent counsel or any comprehension of American culture, legal or other.

   I also have fears over Big Data. Have a look at the IRM’s description of what goes into TECS http://www.irs.gov/irm/part9/irm_09-004-002.html (visas, passports, cross-border movements of people, money, cars…) and all the other databases available to USG enforcement personnel: state motor vehicle data, professional licensing, LEXIS-NEXIS… It’s not for nothing that they’ve been building a huge data centre in Utah: https://en.wikipedia.org/wiki/Utah_Data_Center

   We wouldn’t know much about any of this if it weren’t for Manning, Snowden and Assange, and repeated FOIA requests by journalists. It is only a matter of degree in which the USG rules by fear, compared to totalitarian states: the gap in “degree” is huge now, but when governments view risks as existential “freedoms” (whatever that means, thank you Joe McCarthy et al) go out the window. Do we today have journalists of courage like Izzy Stone and George Seldes? If not it’s all about the economics and the access. “Citizen” Roy Cohn was on the other side, but brilliant (he graduated from Columbia Law School during the war years, too young to take the bar exam): his whole life he relied for favours and information on his contacts from Horace Mann and Fieldston Academy in the Bronx. I have seen his mausoleum at Union Field Cemetery in Queens: it towers over all the other dead: intimidation again?

   That’s enough for this morning. It’s a pity this forum doesn’t have a better indexing system (a query via Google with “site:isaacbrocksocity.ca” is a workaround. And it doesn’t have a DM system. But I do try to look in every month or so: so many forum members are giving of their time, effort and even life for issues they hold dear. (That I view FATCA as something beyond “exorbitant exceptionalism” and “state bullying” — as a frightening exercise in extraterritoriality, to be sure, but something that will be ignored by most of the 3.5 or 7.6 or however many Americans abroad, most of whom — those who slept through the Terror or the fear, and whose banks didn’t close their accounts — will never be affected. I have met, at the few “town hall” type meetings of American taxpayers I’ve attended (one of them in Montreal) “U.S. Persons” for whom becoming compliant just on PFIC issues would render them (and their dependents, Amcits or not) insolvent. (And of course PFIC isn’t really about taxes but about market protection.)

   Like those of the million with a cross-border presence and income I have been, and that despite my filing of FBARs since they began, in the 1970s. Still, I was surprised (as I wrote in another posting) that the RRQ wrote me and threatened to cut off my (modest) monthly pension unless I complied with proof of residence. Here’s there letter, in its entirety (sorry for the French) and bear in mind they had no obvious reason to connect me with the USA, a place where I have not lived in decades (I have had a PO Box in Canada for over 40 years):

   “Monsieur,

   “Si vous nous écrivez au sujet de cette lettre, mentionnez toujours ce numéro.

   “La Régie des rentes du Québec verse actuellement votre rente de retraite par dépôt direct.

   “Nous avons toutefois constate que l’adresse inscrite dans nos fichiers comporte seulement une case postale. Afin de nous conformer aux normes plus strictes établies par le gouvernement américain, nous devons obtenir votre adresse municipale complète afin de continuer à vous verser Ia rente.

   “A cet effet, vous devez :

   • remplir le formulaire annexé;
   • fournir un document de preuve récent sur lequel figurent vos coordonnées
   complètes;
   • nous retourner ces documents d’ici le 15 septembre 2015 dans l’enveloppe ci-jointe.

   “Vous trouverez en annexe une liste d’exemples de documents admissibles. Veuillez noter que, si nous ne recevons pas ces documents dans le délai indiqué, nous devrons suspendre le versement de votre rente.

   “Si vous avez besoin de précisions, vous pouvez joindre un de nos préposés a Ia clientèle aux numéros de téléphone indiqués sur cette lettre.

   “Veuillez agreer, Monsieur, nos salutations distinguées.”

   A parallel note: it remains to be seen how bankruptcy and insolvency law — along with legitimate asset protection, use of statutes of limitations and avoidance of fraudulent conveyance/Paulian action provisions, might be used to defeat claims by the IRS. Some bankruptcy laws, like the American, disallow discharge of penalties and fines; many allow discharge of taxes with no (in the case of the USA, 3 years, etc.) delay: http://www.nolo.com/legal-encyclopedia/bankruptcy-tax-debts-eliminating-29550.html

   But then, most of those I meet are elderly. Perhaps we only need to wait out the “system”: E.L., R.L. and J.O. –L. v. Switzerland, Eur. Ct. H.R. 75/1996/694/886, 1997-V at 1509; A.P., M.P. and T.P. v. Switzerland, Eur. Ct. H.R., 71/1996/690/882, 1997-V at 1477. (European Court of Human Rights). (By “we” I don’t mean myself of course.)

   Lastly: There’s a big hullabaloo in the UK over Russian (and other foreign) investment in real property to avoid detection of assets, of money-laundering. For the moment, possession of hard assets (gold in a vault, real estate) is a loophole for FinCEN114 and form 8938. I am given to understand that Washington (and London) want to close that loophole, but I’m not sure how: “beneficial ownership” is tricky, both because the USA is the prime locus for corporate secrecy and because Land Registry rules in the UK (which limit the number registered titleholders of property to four) make it easy, and sometimes necessary, to have undisclosed beneficial owners. The present discussions concern foreign corporations (used in the USA to avoid estate tax, which otherwise would be imposed in most cases without regard to mortgage debt, leading sometimes to abandonment of US real estate at the death of a foreign owner). But maybe I’m going too far off topic. Sorry.

2. ‘“Override” is a poor choice of words because it is a term of art and implies the legal power to do so.’

   Then should I say overturn ^_^
   Regardless, courts do have the ability to do exactly what they do, and they don’t get punished for it, only the victims get punished.

   ‘Garner and Sullivan were criminal cases and the Supreme Court decisions went against the accused. I’m not sure what your point is’

   US Supreme Court ruled that filers of US tax returns have to report amounts of income but can claim Fifth Amendment protection with regard to particular questions, in particular the source. Those two cases were cited, and a scholarly paper by Alito was also cited, by lawyers in petitions for cert. (Please excuse me for not being able to afford three years’ salary to hire a lawyer for a petition for cert.)

   Someone else discusses these and related cases too: http://www.irs.gov/pub/irs-utl/tax_crimes_handbook.pdf
   In my experience the IRS and US Tax Court agreed with the IRS’s interpretations of those cases and the Fifth Amendment, but US DOJ and other courts overturned them.

   [Digression to an assortment of abuses by the US government:]

   ‘We wouldn’t know much about any of this if it weren’t for Manning, Snowden and Assange, and repeated FOIA requests by journalists. It is only a matter of degree in which the USG rules by fear, compared to totalitarian states’

   I don’t even see a difference in degree any more. Even though political offices take turns being occupied by different parties, the rule by fear and abuses of innocent people are the same regardless of which party occupies political offices, and the rule is totalitarian. Former president Carter weighed in on the US’s use of torture a few years ago too.

   It was gratifying to see experts speak up for Snowden, and some of them pointed out what happened to Snowden’s predecessors who did try to go through channels. A few years ago I gave donations to WikiLeaks (not to Assange personally) and Snowden. My income is lower now so my three donations to ADCS add up to about the same amounts as I gave to the others. Unfortunately I never found a fund raising organization for Manning.

   [End of digression]

   [Start of other digression, proof of residence:]

   Even for matters more mundane than pensions, I had to prove residence by presenting utility bills and something else. My driver’s licence was considered inadequate for some reason. One time someone alleged that the fax transmission wasn’t clear, but I don’t believe it, I think the recipient couldn’t read Japanese (there’s no reason to expect the recipient to read Japanese but the recipient is the one who demanded a utility bill).

   Anyway, I tend to agree that a P.O. box doesn’t prove residence.

   Oh yeah, sometimes proof of identity is needed too (except when stealing identities). The first time I read instructions from the Social Security Administration, there was a list of documents which they would accept, and a list of documents which they wouldn’t accept, and hospital records were included in both lists.

   [End of other digression]

3. @Norman wrote, by way of rebuttal:

   “Then should I say overturn ^_^
   Regardless, courts do have the ability to do exactly what they do, and they don’t get punished for it, only the victims get punished.”

   As it happens I’ve spent more years at universities in various countries collecting diplomas and licenses than I ever did at paying jobs. I did learn a few things, notably the difference between b binding precedent in the Anglo-American system and «jurisprudence constante» in the Civil-Law system. A lower court cannot “overturn” a higher court’s decision. It can only distinguish the facts. On the other hand, procedural issues may avoid what otherwise is a binding precedent. And a poor lawyer who has not done homework might fail to cite the precedent.

   The 1989 article “Self Incrimination on Income Tax Returns: A Compelling Dilemma” by Joseph N. Laplante analyses Sullivan and Garner and IRC 6103(i) (“a defendant’s tax return may, in some circumstances, be used as evidence in a criminal proceeding.”)

   As for proof of residence: in Anglo-American countries the problem is that unlike most or all Civil Law jurisdictions (with the voluntary exception of Louisiana and Florida), no registration of domicile (not the same as residence, but never mind) is required with a few cases in respect of aliens, or even possible. One proves current residence with a bank statement (“not online, please”) and utility bills (but hey, I’ve got those from 3 countries, including from rental properties). As identity thieves know, this crackpot system is subject to cheating.

   I also have 4 driving licences from different states/provinces/countries, 3 of which I actually took a road (practical) test for, partly on account of age — but the road tests I took in Canada and the USA were more than a half-century ago. (In Canada and the USA I only had to show up for an eye test to prove I wasn’t blind; Switzerland (where I don’t have a licence) requires a full medical exam from age 70. Britain makes older drivers self-certify, I guess to prove they don’t have so much dementia that they can’t.

   I also file multiple tax returns in different countries. Many people do. All this proves is this: one can only have a single domicile for a single purpose (but hey, one can have different domiciles for different purposes — the sainted Prof. Willis L.M. Reese proved that — and domicile is defined differently in different countries: In re Estate of Jones (he died aboard the Lusitania) http://www.uniset.ca/other/css/182NW227.html

   One can be tax-resident in many places at once. One can contrive “proof” of any address, almost. I don’t recall that the SSA asked for anything but a marriage licence and a passport or birth certificate, but even that was a long time ago. When my spouse applied for SSA it was over the phone and because we have a US VoIP number (and hey, that’s grounds for presumption of US Person status under FATCA don’t you know) it was actually done from overseas with a domestic SSA office, rather than at an embassy.

   Yes, lots of digressions. Sorry again. Do read the article I linked to; I took the trouble to post it on a safe site where it will be available for downloading for 15 days. After that anyone with a library card that allows JSTOR access can get it from there.

4. ‘A lower court cannot “overturn” a higher court’s decision. It can only distinguish the facts.’

   Or it can ignore the higher court’s decision, not even try to distinguish facts, and issue rulings that can form new precedents themselves when not similarly ignored in the future.

   ‘On the other hand, procedural issues may avoid what otherwise is a binding precedent. And a poor lawyer who has not done homework might fail to cite the precedent.’

   Despite being a poor non-lawyer, I DID cite appropriate precedents and I DID distinguish facts from inappropriate precedents when they were inappropriate (for example my opponent cited Nasharr, but Nasharr actually owed unpaid taxes and in my case the US owes me unpaid refunds). More seriously, sometimes courts made up stuff that neither party believes, and made up rules that neither party wanted (for example I cited a precedent where fabrication of a social security number was punishable, but the Federal Circuit made fabrication of a social security number MANDATORY when the SSA neither granted nor rejected the application and the IRS rejected ITIN applications).

   Courts are free to do all this stuff because they don’t get punished. Only victims get punished.

   ‘The 1989 article “Self Incrimination on Income Tax Returns: A Compelling Dilemma” by Joseph N. Laplante analyses Sullivan and Garner and IRC 6103(i) (“a defendant’s tax return may, in some circumstances, be used as evidence in a criminal proceeding.”)’

   There is more to it. Despite whether the US or courts obey 6103 or overturn it, treaties create an even worse problem than IGAs do. Governments can decide arbitrarily that they will obey treaty provisions to share information, governments can decide arbitrarily to disobey treaty provisions about how the shared information will be used, and further details are under seal in Tax Court. In my experience the IRS and Tax Court comply with the Supreme Court in the Sullivan and Garner cases, but other courts do not.

   “Do read the article I linked to; I took the trouble to post it on a safe site where it will be available for downloading for 15 days.”

   Among all the links we’ve posted, I guess you mean this one: http://EmailLargeFile.com/d/2C9UYPSVAMC

   Thank you for your troubles. The contents are longer than the 4 relevant pages of the IRS Criminal Tax Manual, but the meaning seems to be the same. Returns had to be filed and had to declare amounts of income but particular questions did not have to be answered when protected by the Fifth Amendment, in particular source of income. We had already complied. The IRS accepted it and Tax Court accepted it, but the DOJ and other courts did not. Furthermore, the IRS carefully asked a few details over the phone, asking questions whose answers did not need protection (again the IRS accepted my answers — and had they not accepted, they could investigate whatever they wanted with regard to those careful questions, no problem).

5. ‘we have a US VoIP number (and hey, that’s grounds for presumption of US Person status under FATCA don’t you know)’

   Oh no. When Skype stopped working on an old computer used by my cousins, one of the alternatives that we tried was VoxOx. VoxOx assigned a US VoIP number to my cousins who never visited nor tried to visit the US, and whose parents are not[*] US persons and never visited nor tried to visit the US. We’ve already warned them not to marry US persons unless they’re going to move to the US. But it looks like they’re in trouble anyway. I guess I have to get them ITINs somehow in order to file FBARs for them.

   [* one parent “was not” — or still “is not”, if skeletons count]

6. (“Nor is there any forum the IRS can approach, not since United States of America v Harden.”
   http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7322/index.do
   Thank you again andy05.)

   It looks like the IRS can’t approach forums in other countries either, besides Canada.

   Her Majesty the Queen in Right of the Province of British Columbia v. John Raymond Gilbertson et al, 597 F.2d 1161 (9th Cir. 1979)
   http://law.justia.com/cases/federal/appellate-courts/F2/597/1161/125691/

   The IRS told both me and my wife[*] that they intend to levy our state refunds from Tokyo. I wonder which court they would use for that.

   By coincidence Ome city hall recently calculated that I was due refunds of parts of income taxes that had been paid to Ome and Tokyo in two past years, but Ome city hall promptly seized the refunds themselves because income taxes had not been paid to Ome and Tokyo in one past year. My employer had withheld city and state taxes from my salary in all three of those years, but had failed to remit them one of those years. I had half a mind to inform the IRS so they could fight with Ome or Tokyo over who gets the portion of the seized refunds that came from Tokyo. But if the IRS can’t sue in Tokyo District Court, I wonder where they’ll go.

   [* My wife never was a US citizen or resident, but that doesn’t stop the IRS. I warned her not to wear her wedding ring if she ever visits the US again.]