Personally, I am not surprised. Canadian courts are very conservative and always it appears defers to the government.
http://cas-ncr-nter03.cas-satj.gc.ca/rss/T-1736-14%20decision%20sept-16-2015.pdf
Suggest emailing Mulcair’s press Secretary about this outrage as he is apparently US-born.
george.smith@ndp.ca
How about a campaign to get all your friends to open bank accounts and refuse to identify as U.S or not.Then the system would be flooded with reports,many of them about non U.S. persons.
JC, thanks for the link to Rand Paul shooting the IRS code. I watched the Republican candidates debate on CNN last night, and joining Rand Paul in their desire to throw out the enormous IRS code are Ben Carson and Mike Huckabee. In general, status quo Republicans are NOT doing well in the polls. I hold out hope that a Republican candidate who wins, plus the Republican Overseas commitment to overturning FATCA, can have a chance of killing FATCA.
I would like to see the ADCS lawsuit continue and will support it to the extent that I can, but I no longer have any illusions that it will be settled soon. It’s very clear now that the stress and expense of remaining a US citizen who is resident outside the US is going to persist for a long time and will even get worse.
I have to agree with the comments of Barbara and usxcanada above. The best advice for those who remain trapped is to get rid of US citizenship as soon as possible. If it seems expensive, compare that with the prospect of continued compliance costs year after year.
Good luck!
@davidb
The IRS has already put a kibosh on that idea. Send your friends packing, they tell the banks:
http://sovos.com/blog/fatca-self-certification-could-cause-headaches-for-financial-institutions/
@Bubblebustin, I agree this makes no sense. WTF!????
Re:
“Accordingly, in the absence of concrete evidence, it is speculative to suggest that the automatic collection and disclosure of taxpayer information mentioned in the IGA is tantamount to providing help to the US authorities in the collection of taxes.”
– yet the judge said that the IGA was necessary for the U.S. to enforce its tax regime. Huh? What’s the purpose in having this kind of information if you aren’t going to assess taxes?
@George
I think that the IGA’s are themselves a Hail Mary pass, in that the judge describes them as “novel” – or “odd-duck”, as this author refers to them as here:
http://www.taxanalysts.com/taxcom/taxblog.nsf/Permalink/UBEN-A2DPSM?OpenDocument
I’d speculate that those who conjured up the IGA’s wake up every morning wondering how they ever got away with something so brazen. Be careful of what you wish for, Treasury!
@usxcanada
Where is this place “beyond all jurismalediction” – death? As for the spirit of “sauve qui peut”, wouldn’t that too include a “mirage islet of statist law”, if the swimmer so chooses?
@Jan
I’ve thought at lot recently about the Bopp lawsuit and Rand Paul’s role in it. My view of this lawsuit has been complex and it hasn’t been easy to come to any conclusions.
I’ve reached the conclusion, though, that the lawsuit is definitely valid and an important part of the strategy to fight FATCA–acting in parallel with the Arvay led effort. As such I continue to wish the plaintiffs well in that case.
However considering my responsibilities as a US voter, I’ve also reached the conclusion that I cannot support Rand Paul as a presidential candidate based on the strength of his opposition to FATCA–primarily because his opposition has not been that strong. He is generally anti-IRS but his support of the Bopp effort–despite being a co-plaintiff–has been lukewarm at best. He doesn’t talk much about the Bopp effort and I am very unclear as to the depth of his support for the actual arguments raised.
Rand Paul’s opposition to FATCA is a pale shadow of the fierce opposition to FATCA we’ve seen in Canada from Elizabeth May (albeit not anyone other politicians in Canada).
So when I vote in the US, it will be based on other issues–not based on FATCA related matters. If I end up voting for Rand Paul, it will be purely coincidental and based on other factors, because his support of the Bopp lawsuit has been too lackluster to support him for that reason.
Actually I’d go a step further and say that Rand Paul’s role as a Bopp co-plaintiff is a strong reason to vote AGAINST him for president.
Why do I say that? Well the lawsuit says that he is suing in his capacity as a US senator. As such I think it is best that he remain in the role for the foreseeable future and not move to the executive branch. He is essentially suing the executive branch as a member of the legislative. As such he should ideally stay in the legislative branch for the duration of the lawsuit so he can continue to oppose FATCA (assuming of course he can win re-election to his Senate seat).
Do you think Rand Paul has a chance of becoming the GOP nominee?
@bubblebustin
Probably not. His father’s campaign in 2012 seemed to make a lot of waves in the Republican nomination race here in Washington state–Ron Paul got 25% of the vote in the WA Republican caucuses but more importantly seemed to attract attention even beyond the level of actual support that he had. As such I probably overestimate his son’s actual chances in 2016.
“Accordingly, in the absence of concrete evidence, it is speculative to suggest that the automatic collection and disclosure of taxpayer information mentioned in the IGA is tantamount to providing help to the US authorities in the collection of taxes.”
‘- yet the judge said that the IGA was necessary for the U.S. to enforce its tax regime. Huh? What’s the purpose in having this kind of information if you aren’t going to assess taxes?’
The US’s tax regime is used in assessing and collecting penalties, even when the amount of tax is $0.00. It is not speculative to suggest that the automatic collection and disclosure of taxpayer information mentioned in the IGA is tantamount to providing help to the US authorities in the COLLECTION OF PENALTIES, it’s speculative on the matter of collection of taxes.
@Dash1729
I’d agree, probably not, but it ain’t over till it’s over, is it?
As for who does the reporting on Sept 23, I can’t say – but there’s a pretty good chance that new account openings is where you’ll see a lot of reporting, as it doesn’t involve a lot of effort in the bank’s part and has no minimum thresholds – that is if US persons don’t walk out the door upon interrogation. I also don’t see ‘regular’ Canadians taking too kindly to the self-certification process, do you?
I don’t think ‘regular’ Canadians will have a problem signing the self certification form. It’s just another form in a sea of forms that must be signed when doing anything financial. they’re just ticking a box that says they’re not a US person. It looks like every new account will require self certification in Canada and I agree that’s where the bulk of the reporting will come from.
But I think ‘regular’ Canadians will have a problem with the W-8/W-9 reporting scheme when opening a simple chequing/savings account or RRSP.
Years ago I took out a 5 year GIC which paid increasing rates of interest in successive years. I was absolutely floored when I received a T5 from the bank for the first year which showed a much larger interest payment than I actually received. Without telling me that this was how these types of GICs worked, the bank had taken a 5 year average interest rate and pretended that THAT was my interest income for the first year. They would not amend my T5, saying that was how they had to do it, and not to worry because it would work out to the same total interest over the 5 year span. This caused me planning problems but it could have been worse. What would have happened if I didn’t know from my T5 slip what the bank was reporting to the CRA? I would have filed a lower number than the bank and perhaps ended up with penalties to pay (late fees or something).
What will the procedures be with FATCA reports? Will customers get copies of their FATCA reports, just like they get T5 slips? If they don’t get these reports, US tax filers could and probably will send different figures to the IRS and FinCEN than what reaches these agencies via the CRA, simply because they will be combing through mounds of bank statements to compile the numbers for their 8938 and FBAR(FinCEN114) forms. Has anybody read anywhere what the actual reporting procedures will be? Curious minds and potentially screwed US tax filers would like to know.
Imagine the shock to some who are unaware of all this FATCA fiasco, if their first introduction to it is a FATCA report included with their T5 slip next year. They may or may not be US tax filers and they may or may not even be US citizens.
I don’t know that I agree, Norman Diamond. The Internal Revenue Manual offers penalty abatement for first time offenders, for example. I opted out OVDI into Streamlined and ended up being reimbursed the failure to file penalty and was not assessed the “in lieu of penalty” under OVDI. I suppose it’s different though if one is determined to be recalcitrant. Then there’s those “assessable penalties” Roy Berg referred to in his article about the summary trial, thise which he says are ineligible for the safeguards of the code’s deficiency procedures.
http://www.moodysgartner.com/wp-content/uploads/taxnotes.com_-_news_analysis_decision_in_canadian_challenge_to_fatca_expected_soon_-_2015-08-22.pdf
@EmBee
I don’t think your bank is required to give you any information about what they’re sending to the IRS. I don’t even think they’re required to tell you “IF” they are sending information. I believe I read somewhere that you can ask your bank if they are sending your information, but by asking you are pretty much telling them you are a US person. It’s possible that your information can be send without your knowledge. What happens if your bank has your SSN? What happens if you don’t have a SSN? So many unknowns.
@bubblebustin @Marie
I think the thing that will really raise Canadians’ anger is if people start receiving letters from the IRS out of the blue–especially people who have had no US connection in years if ever and for whom the letter comes as a genuine shock.
@Dash1729
I agree and maybe that is what it’s going to take to get more people standing up and shouting “NO”.
A couple of people on an FB expat site said that some account applicants in other countries are being asked if either of their parents are American!
“The Internal Revenue Manual offers penalty abatement for first time offenders, for example.”
They never offered such a thing to me, all they did was refuse to tell me what position they considered offensive until I’d repeated it five times, and then they lied about what position they considered offensive. Finally in court they revealed that the offensive position was illegal honesty in declarations. The IRS needs processable returns, which means you have to write numbers they can understand even if you don’t believe the numbers, and you have to sign the preprinted declaration instead of writing an honest declaration. You cannot call an estimate an estimate, even when it’s your first offence.
… Although actually they never revealed their reasoning on my actual first offence. They revealed that they had not made the assessment that they had lied about, Tax Court ruled that the IRS cannot collect, thirteen months later the IRS partly collected, and Court of Federal Claims and Court of Appeals for the Federal Circuit allowed the IRS to keep the partial collection.
Well anyway, even if they offer abatements to some, how does this contradict my explanation of Martineau’s reasoning?
{ The US’s tax regime is used in assessing and collecting penalties, even when the amount of tax is $0.00. It is not speculative to suggest that the automatic collection and disclosure of taxpayer information mentioned in the IGA is tantamount to providing help to the US authorities in the COLLECTION OF PENALTIES, it’s speculative on the matter of collection of taxes. }
Does anyone–perhaps in possession of a transcript–recall if either side–or the judge–drew a distinction between collection of tax and collection of penalties at trial?
“I think the thing that will really raise Canadians’ anger is if people start receiving letters from the IRS out of the blue–especially people who have had no US connection in years if ever and for whom the letter comes as a genuine shock.”
How about companies that never had a US connection?
http://thedailywtf.com/articles/Reenlisting-the-Data-General