“DOING NOTHING” WAS NEVER AN OPTION. TODAY THIS POEM OF DRYDEN COMES TO MIND:
“Fight on, my men,” says Sir Andrew Barton,
“I am hurt, but I am not slain;
I’ll lay me down and bleed a while,
And then I’ll rise and fight again…”“Fight on my men,” says Sir Andrew Barton,
“These [English dogs] they bite so low;
Fight on for Scotland and Saint Andrew
Till you hear my whistle blow!”
[Republican Overseas motion for preliminary FATCA injunction denied (September 29) by Thomas Rose, U.S. District Court Judge in Ohio. Here is the link to the decision.
— Win or lose our Canadian injunction, we will do as George says: “…get straight on to the Charter challenge.”]
This is the affidavit of Sue Murray, which is part of the submission of Government of Canada in response to our request for a delay in the banking information turnover. Go to this link which contains this and other affidavits.
Canada claims that a delay is not possible given the specifics of the IRS regulation.
Also, it appears that about 155,000 bits of private banking information are waiting to be turned over to a foreign country.
Here is her affidavit:
I, Sue Murray, of the City of Ottawa, in the Province of Ontario, SWEAR THAT:
1. I am the Director, Competent Authority Services Division, International and Large Business Directorate, Compliance Programs Brancl1 (“CPB”), Canada Revenue Agency (“CRA”), and as such have personal knowledge of the matters deposed to in this affidavit, except where they are stated to be based on information and belief, in which case I believe them to be true.
Discussions with the IRS
2. Subsequent to the hearing of the summary trial (which took place August 4-5, 2015), on August 27, 2015 there was a call between representatives of the CRA (myself, Richard Montroy, Assistant Commissioner, CPB, and Ted Gallivan, Deputy 000059 2- Assistant Commissioner, CPB) and Douglas O’Donnell, Commissioner-Large Business and International Division, of the US Internal Revenue Service (“JRS”).
During that call the issue of a possible injunction application in this case was raised with Mr. 0′ Donnell. There was general discussion ·of the impacts of such an injunction. Although no definitive answer was provided, it appeared that it would be very unlikely that the IRS would be willing to grant Canada an extension of time to provide information to the IRS in order to avoid an injunction application.
3. On the afternoon of September 18, 2015, the IRS issued a notice, attached as 1::-;hibit ‘ A’ (the «Notice”), in which they indicated on pages 18 and 19 that they would consider granting extensions of time to certain jurisdictions to comply with reporting requirements under an intergovernmental agreement (IGA) related the US FATCA provisions. Specifically, the portion of the Notice that could be applicable to Canada is that pertaining to B. Model 1 IGAs for which the Obligation to Exchange is
in Effect.
4. Mr. Montroy again requested a call with Mr. O’Donnell. When the call occurred, on September 21, 2015, after the appellants had withdrawn their request for an injunction hearing, Mr. Montroy was not available, but a number of CRA representatives, including me and Lisa Anawati, Director General, International and Large Business Directorate (ILBD), CPB participated in the call. The CRA representatives informed Mr. O’Donnell of the outcome of the summary trial application in this case, and that an appeal would be filed, and sought clarification from Mr. O’Donnell on the application oftbe Notice to Canada. Mr. O’Donnell made clear that the Notice did not pertain to Canada’s circumstances and that the U.S. continued to expect that Canada would comply with its obligation to provide its information by September 30,2015.
5. On September 23, 20J 5, after the appellants indicated that they would once again be moving forward with an injunction application, [sought clarification from the IRS 000060 – 3 – regarding whether they would grant an extension of time to provide the information if the appellants were successful in obtaining an injunction.
6. On September 24, 2015, there was a call between representatives of the CRA (myself, Mr. Montroy and Ms. Anawati) and Mr. O’Donnell. During that call it was confirmed that the US was not prepared to grant an extension because the Canadian situation is not covered by the Notice criteria, as the legislation and systems are in place to be able to effect exchange. Given that the Notice does not contemplate such an exception, this was the US position even if Canada is subject to a Court ordered injunction. In addition, Mr. O’Donnell confirmed that the exchange is anticipated to be reciprocal [!] and should Canada be prohibited from delivering its information, the US would not provide theirs.
Change in transmission date 7.
Under the IGA there is an obligation to exchange information by September 30, 2015. Leading up to the summary trial hearing we were asked to advise when the transmission would actually take place and we estimated that it would occur sometime within the September 15 – 30, 2015 time period, in order to allow for technical difficulties that may arise once transmissions began. When, after the hearing of the summary trial, we were asked to advise the court exactly when transmission would start, we determined that September 23, 2015 would be the probable date. However, just prior to September 23, 2015 we realized that we would need more time to make the appropriate arrangements for transmission. In recognition of the need to again provide a date before the September 30, 2015 deadline, and to avoid having to change the date again, we decided that transmission will not take place before September 29, 20:15 and will instead take place either the 29th or 30th of September. 00061
-4 –
Information to be sent to the IRS
8. I have reviewed tbe information which has been provided by Canadian financial institutions and is to be sent to the IRS. The package consists of approximately 155,000 information slips. Each slip represents one account and one account holder.An account holder can be either an individual or a corporate entity. There are instances where a single individual or entity holds multiple accounts. Allbaugh unable to provide a precise number, I can say that the number of individuals represented by the 155,000 information slips is less than 155,000.
lJ. Based on my review of the information slips I can confirm that there are no information slips in relation to either of the appellants in this proceeding. I have reviewed the appellants’ notice of application and note that the injunction they seek in paragraph 1 applies to any information to be sent under the Canada-United States 1:·11/wnced Tax !Hformation Exchange Agreement Implementation ct, being s.99 and Schedule 3 of the Economic Action Plan 2014 Act~ S.C. 2014, c.20. However they also state in their notice of application that they are only seeking an injunction in relation to a “subclass” of information. I have reviewed the remedy sought by the appellants’ in their summary trial application, on the assumption that this is the relief being sought in paragraph 68 of their notice of application, and note that the CRA is not generally in possession of information which would permit it to sort the information slips provided by financial institutions to narrow them to a subclass of information.
Impacts of an Injunction
W. If the CRA is unable, due to an injunction, to transmit the required information to the IRS, and no extension of time is granted by the IRS, Canadian financial institutions will risk losing the benefit of the deemed FATCA compliance that they would otherwise obtain through the IGA. ln particular, as of October 1, 2015, if the 000062 – 5 – ·000063 information has not been received by the IRS and no extension of lime has bct.:n granted, it is possible that the Canadian Financial Institutions could be considered noncompliant.
II . The lGA not only requires the CRA to provide information to the IRS , but for the JRS to provide information to the CRA If an injunction is granted and the CRA is not able to meet its commitments under the lOA, the IRS will not provide CRA with the information it has committed to provide. This would have a detrimental impact on CRA ‘s tax compliance work. The information to be provided by the IRS is helpful to tax compliance work in Canada because it would quickly and easily permit the CRA to match financial holdings in the US to specific taxpayers in Canada to, in a timely way, assess their compliance and if necessary commence audit action. As with other information obtained by the CRA, it is compared to that reported on tax returns and where inconsistencies are identified. compliance actions are undertaken and reassessments made.
12. Canada has a long-standing history of exchange of information with many countries, particularly the United Stales and non-compliance with the lGA would have a detrimental effect on our international reputation in this regard.
SWORN before me at the City of Ottawa,
in the Province of Ontario, this 25th clay of
September, 2() IS .
Commissioner
The Judge who writes “moving her accounts to an institution that wishes to compete for her business” does not understand that NO institution in Switzerland wants her business and NO institution in the USA wants her business.
@EmBee
“Of course the CRA was giving the IRS progress reports.”
At what point does a nation’s willingness to cooperate become a failure to act in its own best interests? When it provides more information than need be – and especially when those they’re giving it to can’t be trusted.
@bubblebustin
What’s the likelihood that 155K slips belong to US residents?
Very high. Per the 2000 US Census there were 640K US residents of Canadian origin living in the US.
Plus the 155K is the number of slips, so the number of human beings involved is smaller: some people have multiple accounts and some accounts belong to corporations not human beings.
“As long as consumers give less campaign donations than corporations do, consumers will not have power”
‘My point is that, rather than go directly for government, could consumers not put pressure on corporations to then put pressure on government? If large number of people start boycotting Starbucks, for example, and letting them know they are boycotting them and why, would that not encourage said corporation to put the sort of pressure on the government that individuals can’t?’
I see your point, if the same number of people who complain about the government but have no power would then boycott companies that support governments, would companies notice and would companies have power? Well, if a boycott could persuade a company to stop giving campaign donations, would a non-donating company have power to make a government start acting morally? Let’s wish but I don’t advise holding your breath while waiting.
‘FATCA was arguably aimed at homelanders. Which leads one to wonder if the IRS will treat people differently according to their personal context, meaning will a dual citizen living abroad a long time be looked upon with more understanding than a US resident failing to report an “offshore” account.’
No, we’ve seen the answer to that over and over and over. A US negotiator lied when he said that, but in fact the IRS pursues minnows more vigorously than whales because minnows can’t fight back.
‘The Judge who writes “moving her accounts to an institution that wishes to compete for her business” does not understand that NO institution in Switzerland wants her business and NO institution in the USA wants her business.’
Yes he does. Judges sometimes have to pretend not to understand what they understand, but they’re not as stupid as they pretend to be.
Old joke: How do you know if a lawyer is lying? His lips move.
Fact: Judges are very experienced lawyers.
@Bubblebustin & Dash1729
I have often wondered about the number of Canadians living in the US who have maintained Canadian financial accounts. A great number of Canadians live & work in the US (supported by Dash’s 2000 Census numbers – I would bet that today’s numbers would be of a similar order of magnitude) and one would think that at least some of them have unwittingly kept their Canadian accounts open after moving to the US (especially if they are planning on eventually returning to Canada).
As Canadian banks had not previously collected place of birth information, the #1 US “indicium” in the 155,000 accounts may well be a US address or phone number, not a US place of birth. I would be curious to see such a statistical breakdown of the accounts, including the average number of accounts per person.
Tricia Moon –
[Handover] doesn’t surprise anybody particularly.
Then Anybody Particularly is also a realist. That’s one more, besides Schubert1975.
“U.S. continued to expect that Canada would comply with its obligation to provide its information by September 30,2015.”
And some idiots actually expect the U.S. will comply with its reciprocal obligation.
I spoke this afternoon with an information officer at the Privacy Comissioner’s Officer about getting a copy of the Privacy Commissioner’s recommendations and personal privacy impact assessment.
It was very discouraging–but not surprising. I was told this type of report is “not made public.” I have the options of submitting an Access to Information request to either CRA or the Privacy Commissioner.
Those agencies will decide if I can receive the report and how much information I may have.
I was told I have the “right to ask how” government agencies “do business.” But the catch seems to be they get to decide if they will provide the information. how much of the information they will provide and how long they will take to provide it.
On another issue, Elizabeth Thompson tweeted that she was told it would be over 700 days before an ATIP request she made to another Ministry is filled. So much for openess and transparency.
I contacted Pierre-Luc Dusseault’s office. His Assistant said they will also submit a request. However, the information officer indicated to me MPs requests are not completed any faster than the public’s.
So, how bizarre is this? Our private financial information can be passed to a foreign government without our consent. But recommendations about how that will happen “is not made public.” And the folks betraying us get to decide if we can or can’t see the recommendations about our privacy and rights.
Its more than bizarre; it is pathetic, undemocratic, and downright dismissive. So much for JT and his “more open style of government”. Not surprising the Privacy Commission’s recommendations are “private”. Governments everywhere seem to prefer to work under cover. I’m hoping the lawsuit (and a judge’s order) will have more success in shining a light on what should be in the public domain.
Did anyone take a Screen Shot of Darrell Samson`s website statement on FATCA. I can`t find it now.
I hope it hasn`t been “quietly“ taken down after the article appeared. .
“Its more than bizarre; it is pathetic, undemocratic, and downright dismissive.”
Bzzt, wrong.
It’s not bizarre at all, it’s normal operating practice, pathetic, undemocratic, and downright dismissive. (And hypocritical, and arrogant, and ought to be illegal under the Charter … hey wait, it already is, isn’t it?)
@ Blaze
I have a screenshot (2 actually since it didn’t fit all in one shot) but it is still on this archived URL too.
https://archive.is/pi1dY
Maybe there should be a law requiring politicians to preface every statement with “I declare, under penalty of perjury……”.
‘Maybe there should be a law requiring politicians to preface every statement with “I declare, under penalty of perjury……”.’
It wouldn’t matter. The IRS coerces you to sign the preprinted declaration under penalty of perjury even when you know that it’s false, when you can’t do anything about the falsity of some attached forms and schedules. See IRB 2005-14. The IRS penalizes honest declarations, the US Department of Justice penalizes honest declarations, and US courts penalize honest declarations. Luckily perjury doesn’t carry penalties because 26 USC sections 7206 and 7207 only punish wilful perjury, not coerced perjury.
Besides, IRS settlement officers sign declarations under penalty of perjury under 28 USC section 1746 and they don’t get penalized for it. Even if the IRS’s lawyer figures it out and retracts the perjured declaration after calendar call in Tax Court, the perjuror doesn’t get punished. Also the DOJ signs declarations under penalty of perjury under 28 USC section 1746 and judges happily accept them. Also when I filed motions in US District Court for the Central District of California (in Los Angeles) for leave to tell the truth in situations where the truth is in contempt of other court rulings, District Court denied my motion and directed me to make declarations under 28 USC section 1746, so I’ll have to commit perjury in that court if I get back there.
Luckily Canadian courts haven’t ordered me to commit perjury. Maybe because I never had assistance from Harry Kopyto.