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.
Thank you to whoever the donor is who said:
I am honoured by your donation for my persistence. However, I am just one of many in this battle. We are all in this together being persistent and courageous–most of all Ginny and Gwen.
They are risking so much for all of us. That is why it is so important we get this funded.
Again, thank you.
Yet another industry spins-off of FATCA. There’s no end to the money that can be made from this evil law, is there?
Time for everyone to squeeze a little. I just sent one via PayPal to get it below $1,000.00. Anybody?
US$213 was mailed last week…Should arrive tomorrow and convert to about $260Cdn. So many thanks to our worldwide donors.
@bubblebustin, re FATCA spinoffs in support of the Great US tax compliance industrial complex;
FATCA, like US extraterritorial CBT and FBAR is the ‘gift’ that US status keeps on giving…..at great expense and injury to its involuntary victims.
Here is a list of FATCA benefits:
FATCA benefits the US tax industrial complex wherever in the world it is found.
FATCA benefits those in the US tax law industry who want to land a plum job in the IRS, Treasury, etc.
It benefits those in the IRS, Treasury who want a promotion or want a plum job in the private sector – the US tax law industrial complex.
FATCA benefits the US academics who make a career of opining about things that they themselves are never or rarely subjected to.
It benefits the NON-US government lackeys in the CRA, Department of Finance, Justice, etc. who can make a career of applying and enforcing and defending the IGAs.
FATCA benefits US politicians who are looking for scapegoats to beat in order to win points with their domestic constituencies and avoid raising taxes on their US corporate donors and lobbyists.
FATCA appears to be useful to non-US politicians like our very own native Cons in exchange for whatever unrelated trade or other issues they are sycophantically posturing for in order to gain concessions from and appease the US.
FATCA is a taxpayer funded make work project for the private and the public sector wherever in the world it is found.
That is the true ‘benefit’ that US status confers – on everybody BUT the US citizen living outside the US.
@ badger
You always write enlightening comments but this weekend you have been an especially bright beacon. I might add that FATCA benefits those whose pay cheques are derived from writing the numerous, onerous and complex US tax laws (frequently tucked into omnibus legislation) and those who convert these laws into incomprehensible IRS regulations. I’d say this is a growth industry but this racket has been around forever. An idea for a law may start as a whisper in the ear of a congressman but it soon sounds like a big ka-ching to the men and women who embellish the whisper into a ream of legalese. This over-indulgence in legislation and regulation ends up sucking the lifeblood out of poor Lady Liberty.
Thanks for the birthday greetings everyone! 🙂
I hope that soon we will all be able to enjoy a FATCA-free birthday, where our children won’t be troubled with the flawed policies of foreign governments, and where the US government will respect and appreciate ethnic Americans living abroad without troubling them for having left for whatever reason.
@Embee, but if only I could condense it and put it into a catchy song – that would really be an accomplishment!
: )
The ADCS legal challenge mentioned here in passing in a news article from Barbados:
“……… Funny enough, no lawyer seems to have taken up the debate, if it is a debate in Barbados. Someone told me that the Canadians have raised over $500 000 to help fight the application of FATCA there.”
See;
http://www.nationnews.com/nationnews/news/71155/wild-coot-fatca-bra#sthash.4JWv3hqM.dpuf
I have just tried to post the following at
http://www.nationnews.com/nationnews/news/71155/wild-coot-fatca-bra#sthash.4JWv3hqM.dpuf
This is my second attempt this morning. Given the apparent misbehavior by Disqus I have taken the precaution of posting the comment here too:
I have found that comments that I have made on Disqus systems yesterday and so far this morning have NOT appeared on the sites to which they were posted and NOT appeared on my timeline as Pending either. Funny; peculiar, not ha ha.
__________________________________________________________________
Phase I of the Canadian law suit seeking to stop FATCA was heard in Federal Court in Vancouver earlier this month. The ruling of the Justice is expected by September 13th and whichever way it goes I am sure that it will be appealed.
Hopefully this will stop the transfer of data to the US (presently planned for sometime between Sep 15 and Sept 30) until the case can be fully resolved.
ALL countries should be taking up similar cases as so many of us have Charters of Rights with similar protections and those with Laws with roots in British Law have similar Income Tax law principles and roots going back to the Magna Carta.
The Law suit is rooted in several aspects (Phase I – conflict between FATCA and its so called Inter Governmental Agreements with existing Tax Acts and the existing Tax Treaties with the US and Phase II – rules against Discrimination and so on under the Canadian Charter of Rights). One can read the pleadings and the affidavits from the isaacbrocksociety.ca web site and get
commentary on what happened during the hearing in Vancouver earlier this
month. There is a treasure trove of information sources linked through the isaacbrocksociety.ca web site and additional views and a request for Donations to support the Litigation at adcs-adsc.ca
There is also a Human Rights complaint filed with the United Nations (can be seen by link from the box at the top right corner of the first page at isaacbrocksociety.ca web site). It is hoped that there will be further administrative action on this complaint later this month …. but who can tell … such institutions seem to work very slowly indeed.
There is a further case set for hearing in Dayton Ohio on Sep 4th. The Judge has recently denied the US DOJ request for more time. This case seeks to get an injunction to stop FATCA and indeed argues that FATCA is unconstitutional in the USA.
ALL countries should be fighting this battle as the digital data gathering of such detailed, intimate, personal data on customers in grossly insecure files at Financial Institutions around the world for reporting through insecure local tax authorities to the infamously insecure US Government computer systems is a physical danger to people located around the world. People with US Connections (or UK or Aussie or Israeli or pick your target du jour) will undoubtedly be the subject of data leaks to bad actors like ISIS et al around the world including “first world” countries.
The US tax system – due to their corrupt version of taxation based on Birthplace, Citizenship and Green Card documents (aka CBT) (only Eritrea has anything similar and has been condemned around the world for it) – will seek to drain resources from other countries (including the poorest) who base their tax systems on Residence and Domicile. This is too detailed a discussion for a Disqus comment. Please Read isaacbrocksociety.ca and explore the multitude of links therefrom including the Expert Testimony given by Professor Alison Christians.
http://www.nationnews.com/nationnews/news/71155/wild-coot-fatca-bra
Word about the IBS lawsuit is spreading.
Oops …. seems that the situation is correcting itself … I now see some of the comments appearing on my timeline on Disqus ….. were not there a few minutes ago.
What happens if a Bank incorrectly reports an account to the IRS … whether though misinterpreting the FATCA requirements or just too lazy to do the full “if … then … else ….” analysis ? What are the consequences for the Canadian in Canada …. endless costly correspondence with the IRS to try to prove that the account was reported in error ? Freezing of the account ?
@nervousinvestor – apparently if a FFI reports in error you’re screwed. No recourse.
What if you are a “US person” (an accidental) and your bank reports you????
You have no connection to the US except for that birth certificate.
You left the US as a child.
No social security number.
No US passport.
Maybe your sir name is different than the one you were born with.
How does the IRS begin to piece together who the heck you are?
@Marie
In my case, I am talking about someone who was not born in the US, is not a US Citizen, does not have a green card …. but has spent say 32 days in the US in 2014 and/or a TOTAL of 183 days over the 2012, 2013 and 2014 … this has been refined by comments earlier on Brock … this is a question asked by a local Institution where I am. If I tick yes for the Over 31 days and Yes for the over 183 days … then they report my account ? A mere Yes to those two questions do NOT establish “Substantial Presence” in the US … for that to happen, there would need to be a formula applied (all of the days in the last year + 1/3rd of the days in the preceding year + 1/6th of the days in the year before that) … if those “formula days” add to more than 183 I gather that would make me taxable in the US in 2014. Yet the Institution is not asking for the information to enable them to calculate the formula days … just a bald yes or no as to the raw days. I smell real danger that they would report the account even though the “formula days” do NOT make me taxable in the US. Then what consequences might flow from that …… legal fees , frozen accounts … what ?
@Marie, “How does the IRS begin to piece together who the heck you are?”
The question is what can they do?
First, they are likely to send a form letter that they have no record of receiving a US tax return from you, that they believe you have a reporting obligation to file and that you need to file a return within thirty days.
If you do not respond, they can prepare a substitute tax return based on the information that they already have. They might likely make the assumption that the total deposits into your account are earnings. They might also have dividend and interest information that is straightforward. From there a substitute return is produced and there is an amount of tax due plus penalties and interest for not filing.
If the FATCA reporting shows a balance over $10,000 they can then also assess failure to file FBAR penalties.
They likely have the authority to assign you a tax number as part of the collection process that you have fallen into.
@Marie
“How does the IRS begin to piece together who the heck you are?”
IRS = Irreparably Retarded and Sadistic
And what are the United Nations going to do about it? At the moment, it appears to be nothing.
@Nervousinvestor
I think at that point you have a Canadian problem, not a US problem. The 32 days spent in the US is a problem for US persons only, as they are considered resident after 31 days. The 183 day formula impacts snowbirds and others non-US persons because the US considers them taxable residents. I believe it’s also an issue on the Canadian side as 183 days outside of Canada may impact your OAS and CPP.
At the same time, I think we have to get a little savvy with regards to what we are telling our banks. I’m sorry, but I would never tell my bank how many days I’ve spent in the US. I know two wrongs don’t make a right, but we need to protect ourselves and our private information. Both governments are counting on us to become so riddled with fear that we come forward with every titbit of personal information that can assist them in harming us. So many people still don’t know (or don’t care) about FATCA that they would not think twice about answering certain questions. That’s why it is so important that we win this challenge in Canada. And we’re so close! Just under $1000 today!
NOBODY residing outside of the US should be forced to answer any of these ridiculous questions on a bank account application.
@Marie, @George, @anybody!
I have long wondered about one’s account details being reported to the IRS due to, say, residual US indicia (like a US place of birth) *even though* one is incontrovertibly no longer a US person [i.e., following correct/valid/complete renunciation/relinquishment/form8854/CLN]. Obviously, one would write immediately to the IRS, with copies of the CLN & cancelled US passport, citing (where possible) the relevant issue of the blessed Federal ‘Name & Shame’ list. That would, hopefully, get the IRS to call off its dogs without too much grief.
But surely one would have recourse to the law in one’s own country-of-actual-residence for clear breaches of data protection laws by the financial institution?
This is bound to become a live and angry issue all too soon. What resources could be created in preparation for this, on a country-by-country basis? I am posing this question as a now permanent resident and sole citizen of my adopted EU country.
It would be (unusually!) empowering to the FATCA-afflicted diaspora if this information could be assembled and made prominently available on the IBS website. It might, just might, also mean that financial institutions are less gung-ho about informing on their clients, if the availability of this information could be widely publicised.
If banks etc. were to realise that members of the public had the information necessary for individual or group lawsuits regarding compensation for any breaches of domestic (i.e., non-US) data protection laws, they will of course be between a rock and a hard place.
Hmm. No, I’m not feeling sorry for them yet….
Can we do it?
@King of the Road
Serious thing. Needs thought and effort.
Wow. Thank you everyone. We did it. Late but we did it. We raised $500,000 from Little People across Canada and around the globe.
A huge thank you to Stephen Kish for “never, never, never giving up.”
We now anxiously await Justice Martineau’s ruling.
Thank God this first milestone has been reached. Now for the events of September.
@King of the Road, “But surely one would have recourse to the law in one’s own country-of-actual-residence for clear breaches of data protection laws by the financial institution? ”
Fellow EU Citizen here and our only dual citizenship is with the EU!!
There is NO recourse if the FI makes a mistake and hands out your data in error!!