UPDATE SEPTEMBER 19, 2015: SEE ALSO DISCLAIMER AND LITIGATION UPDATES.
[This post, which began in May and having over 1000 revisions and 2000 comments, is being retired from service and updates. It lived through the success of reaching a total of $500,000 in donations from our kind, dear supporters who had little money to give, the hope and disappointment with the summary trial decision, and the certainty that we are now finally moving on to the Charter trial.]
CANADIAN CHARTER TRIAL UPDATE:
— We have instructed the Arvay team to prepare for the “Constitutional-Charter” trial. This means that our focus now, as it was in the beginning of our lawsuit, is on the Charter trial.
Unless there is a new expense in the future that we have not anticipated, the monies from your donations will be sufficient to take us through the “constitutional-charter” trial in Federal Court. However, to pay other legal bills we will need additional donations from our supporters, and a request for donations will appear on another post soon.
OUR LITIGATION HISTORY:
One year ago, on August 11, 2014, Litigator Joseph Arvay filed a FATCA IGA lawsuit in Canada Federal Court on behalf of Plaintiffs Ginny and Gwen, the Alliance for the Defence of Canadian Sovereignty (en français), and all peoples.
Because of a Government delay we initiated a “summary trial”, using a portion of the arguments, which offered the possibility of preventing private banking information from being turned over to the IRS before September 30, 2015. See Alliance’s Claims, our Alliance blog, and AUGUST 4-5 SUMMARY TRIAL FILINGS in LITIGATION UPDATES.
Nervous Investor says,
“I and two family members went to a Bank in my country (not the USA) yesterday to open a securities investment account. None of us are US Citizens or Green Card Holders or Spouses of same nor children of same. Yet after such questions there was a further one … Have you spent 31 days or more in or transiting the US in the last year or 183 days doing such over the last three years.”
With FATCA, things don’t tend to get any better. One way to fight this is the lawsuit. Another way is to vote ABC in the coming election here in Canada. If everyone affected by FATCA would give even a small donation to ADCS, we would have no funding problems. Thanks so much to today’s large donor from Switzerland.
I have relatives in the US whom I visit from time to time. Have kept my time spent south of the border to under 30 days per year as a precaution. It is odd to feel safer travelling there post renunciation than I did before. But still would prefer not to travel to the US at all. Another donation is on the way. It will not be large as I am a repeat, financially stretched, donor. Let’s hope this bill is paid in full soon.
Just wished to add that I now think of supporting the anti-FATCA lawsuit as an investment in our future. We could look at voting ABC and strategic voting as investments as well.
@Phil…The Calgary Consulate is quicker than Vancouver.
@ NervousInvestor and PatCanadian –
What the heck?????? Are the Banks now doing the job of the Homeland Security and checking to see if maybe a new account-holder has a “closer connection” to the US? People are allowed 183 over 3 years so in one year a stay of 119 days still wouldn’t trigger a “closer connection”. Some people go to Florida for 3-4 months every winter. This is truly unprecidented and unreasonable invasion of privacy!
My family of 5 is one income, decidedly middle class, where monthly expenses often exceed monthly income. Yet, if 332.3 people donated exactly as much as my family has to the 500K lawsuit bill, it would be paid in full. If 10,000 people donated $50 each, it would be paid in full.
I don’t get it. With one million Canadians deemed US slaves, I’d have imagined it would be really easy to raise half a million, not even counting donations from people living in other countries.
It makes me think that a lot of the one million slaves in Canada, still have not heard of FATCA. And of the ones that have, maybe they just do not see it as a problem, and won’t until US manages to find a way to actually take the money out of their bank accounts. But it will be too late by then.
@LM and Nervousinvestor
I looked this up and the bank Nervousinvestor visited may have their wording wrong:
http://www.bdo.ca/en/Library/Services/Tax/pages/Tax-Factors/2014-04/US-tax-rules-for-snowbirds-US-rental-property-investors-and-US-citizens.aspx
Refer to link for US Tax Issues for Canadians:
http://www.bdo.ca/en/Library/Services/Tax/Documents/Tax-Bulletins/US-Estate-Tax-Issues-for-Canadians.pdf
According to BDO this should be: Have you spent 31 days or more in or transiting the US in the last year AND 183 days doing such over the last three years. Any bank can screw up on these complicated FATCA requirements and over report.
A t-shirt could say;
Harper’s minions say “Congress has spoken”:
FATCA = ‘Fund America; Taxing Canadian Assets’
@WhiteKat
I’m not sure why it would/should even be limited to the 1 million US persons. My understanding (people will correct me if I’m wrong) is that anyone in Canada needs to fill out an IRS form: either W-9 for the ‘US persons’ or W-8BEN for everyone else. The W-8BEN asks for personal details including address, date of birth, and social insurance number, even for non-US persons.
Canadians, at least in the Canada I knew and loved, would have been appalled at the thought of having to fill out a US government form just to transact basic business in Canada. And this would have been true of supporters of all Canadian political parties whether we are talking about the NDP, the Bloc, or Reform/Canadian Alliance. What has happened to Canadians–whether they’ve ever had any US connection or not–that this now is seemingly acceptable to them?
@badger
A t-shirt could say;
Harper’s minions say “Congress has spoken”:
FATCA = ‘Fund America; Taxing Canadian Assets’
Agreed.
I do, though, agree with Harper on one (and only one) thing: I agree with Harper that Justin Trudeau is just not ready.
@nervousinvestor
I continue to take note of the different approaches to dealing with FATCA being taken in Canada versus in Europe (at least all European countries people have talked about on here).
Banksters in both Canada and Europe are complying (seemingly, shamefully, much too willingly). But the Canadian banksters seem to be trying to comply as quietly as possible, turning the data over as quietly as possible while making as few waves as possible.
By contrast, the European banksters seem to be intentionally making things as difficult as possible for anyone with the slightest hint of a US taint–for example as we are seeing in your post, even asking people about short vacations in the US. It is as though the European banksters are intentionally responding to the US by making this as difficult as possible in an effort to shame the USG into changing its ways.
Though I don’t like to see compliance with FATCA on either side of the pond, I wonder if the European approach might not be the lesser of the two evils.
PLEASE circulate this article as much as you can! It’s the only one I know of that covered the summary trial and even has an imbedded link where to donate. It was written by a friend of mine, Neal Hall. I hope that continued shares and tweets of his article will encourage him to keep covering the story.
http://www.metronews.ca/news/vancouver/2015/08/04/two-women-challenge-law-allowing-ottawa-to-give-info-to-u-s-tax-collectors.html
@bubblebustin
It was written by a friend of mine, Neal Hall.
While I extend kudos to both you and your friend Neal on the one hand for publicizing the lawsuit, on another level I’m a bit disappointed to hear this. I’d hoped that the Metro News article represented at least a single (solitary) example of the lawsuit attracting public interest outside a narrow, small circle. Such more general publicity is sorely needed.
Of course things tend to start by word of mouth so, again, on that level it is great that you shared this with Neal, @bubblebustin. I just had hoped publicity would have moved beyond that level by now. It continues to mystify me when Canadians–whether they have a ‘US taint’ or not–are apparently willingly filling out US government forms when transacting basic business in Canada.
@Kitty…kitty….”It makes me think that a lot of the one million slaves in Canada, still have not heard of FATCA. And of the ones that have, maybe they just do not see it as a problem, and won’t until US manages to find a way to actually take the money out of their bank accounts. But it will be too late by then.”
Presto……that is the problem!!!
I seem to be running into lots of folks now that think just that. Uncle Sam loves them and will not hurt them…and thats from non-compliant folks.
@Dash, ” in Canada needs to fill out an IRS form: either W-9 for the ‘US persons’ or W-8BEN for everyone else.”
Thats only for those with Jewish indica…..excuse me USA indica.
Pure Canadian Blood does not need to have any further examination.
I was thinking back to the Obama budget proposal that was defeated, but would have brought relief to many accidental Americans. They would have been able to relinquish their unwanted citizenship without having to file five years with the IRS. That has been the only admission by the Obama administration ever that there is a problem. I realize that the budget was defeated, but does anyone think that they may be currently working on something else similar to that and will reveal it FATCA is defeated inside the USA or the IGA is ruled illegal in Canada? That was a huge admission by the Obama administration and it seems odd that they would totally abandon it after the budget was defeated. Curious what others may think regarding if it might be revived soon or replaced by something similar.
@George
Uncle Sam loves them and will not hurt them…
They get that impression (in Canada) because due to the more sycophantic approach of the Canadian banks: in general they aren’t closing bank accounts in Canada. It is a different story, it seems, in Europe where the banks are proactively closing bank accounts before risking Uncle Sam’s wrath–so real people have already been (seriously) hurt in Europe. That is probably why–as @Stephen Kish notes in today’s updated main message–the lawsuit is partially dependent on European supporters. The people in Europe are probably (on average with individual exceptions of course) angrier because they’ve been hurt more already.
Like I said a couple of posts ago: I wonder if the approach of the European banksters might not be the lesser of the two evils because it is getting people’s attention faster while there is still time to take action.
@Brockers…..I know some of you like to refer to Canada being multi cultural etc etc…….
But hear me out again………
To refer to a Canadian Citizen resident in Canada as anything other than a Canadian Citizen is downright racist and disgusting.
A Canadian Citizen naturalized today is FULLY equal to a third generation Canadian by birth in Canada!!
The same applies in France, the UK, Ireland, Spain……….
Harper is a RACIST for referring to Canadian Citizens as “Americans in Canada.”
People, many of you have been too kind, the gloves need to come off. This is simply another form of crude racism and discrimination.
ALL Canadian Citizens in Canada are EQUAL. One is no better than the other.
@Dash, in some countries they are closing and in some they are not closing but reporting.
I actually supported the IGA/FATCA language that REQUIRED the closing of a recalcitrant account.
I would rather be burned today than be burned tommorrow if you get what I mean.
In the UK the only major closings were with the equivilent of “US Savings bonds.”
The not closing of the accounts makes the IGA appear to be something not to be afraid of.
I predict the ^&$ will hit the fan for those folks in about three years.
Hey all, I am trying to work out some legal scenarios. Further thoughts?
Scenario 1: Judge rules in favour of ADCS. The Government will be blocked from handing over information. They will in turn lodge an appeal that the next Government may or may not follow through on. This should help fundraising because it will appeal to those who want to squash FATCA for good. It will also appeal to those for raw political partisanship who want to stomp on the cons,
The banks will then need to decide if they are going to report directly to the USA. This will require internal legal opinions and risk assessment. Is the bank more afraid of the USA or a Canadian Court and being sued by a US Person depositor.
The US Government would then need to decide what they want to do. Will they be like the EU wanting to crush Greece so other nations do not get out of line?
Scenario 2 is the Judge rules against ADCS. In this case ADCS files an appeal and as part of that appeal they request that no information is handed over.
Footnote, its now crystal clear why Arvey took this route and ADCS agreed. Again, its brilliant.
I thought I read here that during the recent hearings on August 4-5 in Vancouver, the defense team of government lawyers said that the IGA was entered into “voluntarily”. I just re-read some of the transcripts from the Finance Committee and offer up examples where the Finance Minister himself acknowledges the ‘involuntary’ consequences in the instances he proffers up as his rationale for signing the FATCA IGA;
Finance Minister Joe Oliver said:
“……There are very clear benefits to this agreement, one of which is to avoid a 30% withholding tax on all American citizens who happen to be living in this country. ..”
https://openparliament.ca/committees/finance/41-2/32/joe-oliver-30/
and,
Joe Oliver Eglinton—Lawrence, ON
“I just want to finish by saying that with the agreement in place, these very negative effects will not happen.”
4:15 p.m.
NDP
Murray Rankin Victoria, BC
That’s the only benefit you’ve articulated, namely the lack of sanctions.
4:15 p.m.
Conservative
Joe Oliver Eglinton—Lawrence, ON
“That’s a huge benefit. That’s an immense benefit.”
https://openparliament.ca/committees/finance/41-2/32/joe-oliver-33/
and,
“…We think it is important to move this agreement forward because we don’t want negative repercussions for Canadians or Americans living here. I have already explained the negative consequences of not signing this agreement..”
and,
“….Let me remind members again, as I did a few moments ago, that without the agreement, Canada’s financial institutions would still have to comply with FATCA. Obligations for Canadian financial institutions would have been unilaterally and automatically imposed on them by the U.S. That would have required banks to report information directly to the IRS, and potentially deny basic banking services to clients. Both banks and their clients would have been subject to a 30% withholding tax….”
https://openparliament.ca/committees/finance/41-2/32/joe-oliver-36/
See:
https://openparliament.ca/committees/finance/41-2/32/
“Finance Committee on May 6th, 2014
Evidence of meeting #32 for Finance in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes)”
I know there are other examples. The FATCA IGA was not ‘voluntary’ unless you count extortion as a ‘voluntary’ transaction.
@George
I thought that for existing accounts, it was if there was US indicia that the W-8BEN/W-9 was required–with the bank being required to search for US indicia manually if the balance was over $1,000,000 and electronically if the balance was over $50,000.
But I thought for new accounts after Canada Day, 2014, everyone had to disclose their US status? But maybe if they claim not to be a US person and there are no US indicia, no actual US forms are required? Anyone know what the procedures are for new accounts opened in the last year? Maybe I need to revisit the following thread:
http://isaacbrocksociety.ca/2014/06/26/please-provide-in-this-post-questions-big-canadian-banks-will-ask-new-account-holders-on-july-2-2014/
@Dash, I am in the EU not Canada……..
No US Indica equals no US forms.
If you are not a US Person but have some smell of US Indica, the US forms are required as part of the process to cure the US indica.
Thats just for cash deposit accounts.
Brokerage accounts that trade in US Securities requires US forms for all….
To be very blunt, the language reminds me of the Nuremberg Laws and I now publicly state just that.
Side note, I think FATCA and the IGAs need to be pushed to the limit and require FI to ask parentage and grand parent questions.
Just bouncing around ideas……..
Reread the DA position paper on FATCA which states, “In order to claim the Safe Harbor , Americans abroad will have to file Form 8939 with their tax return.”
i have found an effective way to debate is to agree with a person but offer improvements.
How about, “”In order to claim the Safe Harbor , Americans abroad will have to be in full tax paying compliance and be considered resident for tax purposes with their country of residence.”
My language would be in harmony with the ethos of OECD.
@ patcanadian “Any bank can screw up…”
Ain’t that great??? Think about the non-English speaking countries!! Think about the multitude of interpretations of minor nuanced rules. It is a time of madness spreading from the post-traumatic stress disordered USA. We are going to hear more stories in this vein as FATCA takes hold…..
@George:
And you think FATCA and IGA’s will not be headed in the direction of parents and grandparent questioning unless pushed.
Rest assured, they are headed in that direction.
The bottom line is that FATCA is illegal in all countries and the US knows it, knew it and came up with the bogus IGAs to bully everybody into betraying their own sovereignty and privacy rights of their citizens and residents.
Do not think for one minute they intend anything even remotely benign in their machinations. They intend , by whatever names they call it, confiscation of assets of law abiding citizens and residents of all nations on earth they can possibly get away with and the banks are their partners in crime. ( bail ins in 2013 budget in Canada- did anyone hear this discussed at the time? Well, we didn’t.)
Tax and Constitutional scholars around the world made it clear that FATCA was a trainwreck and countries would not comply, COULD NOT comply because it was breaking all kinds of laws in order to please the Fatcanatics in Treasury.
So treasury came up with the IGA schemes.
Here you go people: Sign into law overrides to your own laws so we can worm FATCA in via the IGA’s. TREASURY did it.
Canada as a sovereign state had NO business dealing with entities that had no authority to negotiate.
We have all said here that ‘JUST SAY NO’ should have been the order of the day.
Does anybody think that if the banks had not been involved there may have well been a very big NO?
Does anybody think that IF the government had put this up for scrutiny and discussion openly in Parliament and engaged the public in discussions just what the outcome would have been?
I don’t doubt for a second that Canadians would have said not ‘NO’ but ‘HELL NO ‘
However , the reality is that our own government engaged in nefarious behaviour in order to override existing laws that protect Canadians and Residents.
Two very telling initiatiaves: by OUR government : Using taxpayer dollars :
Bail ins for banks in 2013 budget
Deliberate IGA negotiations cloaked in secrecy and nefarious machinations. Overruling ALL reasonable suggestions to protect Canadians and sovereignty
Meanwhile in the states, they are every more engaging in Asset Forfeiture on the pretense of whatever they can come up with at the time.
When elected representatives and government departments engage in criminality on a wholesale basis, we are in very grave danger.
Right now the only finger in the dyke holding back the greatest financial tsunami on earth against us is our lawsuit.
Seriously , on this entire planet earth, two women in Canada and their lawyers and supporters are the only thing holding back the devastation that awaits us all.
It is a travesty that we still owe on the bill to fund this very righteous fight for our freedom.