Cross-posted from ADCSovereignty blog

First published on November 19, 2014. Updated on October 24, 2015 to include the discussion of the Supreme Court of Canada ruling in  Canada (Attorney General) v. Federation of Law Societies of Canada  and the advisory of the BC Law Society to its lawyers (page 13 of Fall 2015 Benchers Bulletin) with respect to how B.C. lawyers should comply with FBAR requirements.

Why Canada's #FATCA IGA is not "only an information sharing agreement" http://t.co/yhoqrAKyNI and how FATCA violates international law

— Citizenship Lawyer (@ExpatriationLaw) November 19, 2014

Thanks to Isaac Brock contributor Anne Frank for this detailed comment – plenty of “food for thought”.  This includes the suggestion that “U.S. citizenship” may act as a deterrent to “U.S. citizen lawyers” having  signing authority on law firm trust accounts. Interestingly this was also suggested today on another Isaac Brock thread.  That thread discussed the situation where a U.S. citizen law firm employee has signing authority over a Canadian law firm’s’ accounts. The person expressed her concern in a letter written  to Robert Wood which was posted on Mr. Wood’s blog at Forbes. This Canadian resident (and law firm employee) described her concerns as follows:

Even so, my biggest issue with becoming compliant is disclosing my employer’s accounts on FBARs. I work for a Canadian employer and have signing authority on general, pooled and trust accounts. FBARs require all accounts to be disclosed, financial institutions, addresses, account numbers, business address, business number assigned by the Canada Revenue Agency, my employer’s social insurance number and the highest balance in each account for the year.

My employer wonders why the IRS wants information about his accounts. He is a Canadian without U.S. ties. He has grave concerns about security, yet I cannot become compliant without disclosing his accounts. Can he fire me because America still claims I am American?

Even if I were to quit, I would still have to disclose his accounts. If I am audited, will the IRS or FinCEN audit his accounts? The IRS says I must retain records in the event they have questions about the accounts.

The specific reference in the Anne Frank comment (referring to the “reporting requirements” imposed on U.S. citizen professionals”) is:

He or she will be unable to be practice as a partner in a professional law or accounting firm unless the firm permits the disclosure of all of its financial accounts to the IRS in a foreign country and unless any professional bodies governing such firm (Law Society, CICA, etc.) permit the release of client-specific trust account information to the IRS in a foreign country.

(To that I would add “Real Estate Brokerage firms.)

The time has come to write a more detailed post canvasing this issue. By implementing the FATCA IGA, the Government of Canada has signaled that it will assist the U.S., in imposing U.S. law IN CANADA. Those subject to U.S. law are those who the U.S. (now or in the future) deems to be it’s persons.

U.S. law includes extensive financial “reporting requirements”. The “reporting requirements” include the FBAR rules which require “U.S. persons to report the existence and balances of all accounts over which they have “signing authority”. In addition, the FBAR rules specifically require that the account records be available – for 5 years – for inspection by U.S. authorities. Law firms have fiduciary and other ethical obligations to their clients. Presumably these obligations would include NOT making their financial information available to the U.S. Treasury.

This is a very important issue. Interestingly, the Canadian legal profession has managed to convince the courts that lawyers should be exempt from Canada’s FINTRAC (similar to FBAR) requirements. Those interested are invited to read the 2013 decision of Mr. Justice Hinkson of the British Columbia Court of Appeal in Federation of Law Societies of Canada v. Canada (Attorney General), 2013 BCCA 147 (CanLII). Mr. Justice Hinkson ruled that to apply Canada’s FINTRAC reporting requirements to Canadian lawyers would compromise  the “independence of the bar”,  which is a principle of “fundamental justice”,  that S. 7 of Canada’s Charter of Rights is to protect.

Clearly if it would violate S. 7 of the Charter for Canadian lawyers to comply with Canada’s FINTRAC rules it would violate S. 7 of the Charter for Canadian lawyers to comply with the U.S. FBAR rules.

In February of 2015 the Supreme Court of Canada upheld the decision of the British Columbia Court of Appeal and agreed that the lawyers should not be subject to the FINTRAC rules. An excellent discussion of the decision is here.

Commentary on the  judgment of Justice Cromwell included the following:

“The regime authorizes sweeping law office searches which inherently risk breaching solicitor-client privilege” (FLSC, para 35). He characterizes the law as having a “predominantly criminal law character” and relies on Lavallee, Rackel & Heintz v Canada (Attorney General), [2002] 3 SCR 209 [Lavallee], to note that “the need for the full protection of [solicitor-client] privilege is activated” and that, in any case, the reasonable expectation of privacy here is high (FLSC, paras 33-37).

So, the CANADIAN FINTRAC rules do NOT apply to Canadian lawyers, but the U.S. FBAR rules do?

Lawyers secure constitutional exemption from FINTRAC https://t.co/CLfeEC6pwe via @legalpost – But @LawSocietyofBC publishes #FBAR Comp Guide

— Citizenship Lawyer (@ExpatriationLaw) October 25, 2015

Leaving aside the inevitable technical differences in the legislation, the simple fact is that both the Canadian FINTRAC rules and the U.S. FBAR rules require lawyers to disclose information about their trust accounts. There is NO doubt that the FBAR rules require the disclosure of bank accounts that any U.S. person has signing authority over. The Law Society of British Columbia resisted the imposition of the FINTRAC rules. Yet, the Law Society of British Columbia is now giving BC lawyers guidance on how to comply with the U.S. FBAR rules! To put it another way: The Law Society of British Columbia is assisting the U.S. Treasury with FBAR enforcement in Canada. The article (reminiscent of “Are you or have you ever been a U.S. citizen?” is titled:

“Are you or any of your employees US citizens?”

The article is found in the Fall 2015 Benchers Bulletin:

FBAR BC Lawyers BB_2015-03-Fall

Some non-technical highlights of the article include:

At the beginning – confirming that “It’s U.S. law and you better obey it”. You just better disclose information about your law firm trust account to that foreign government.

IF YOU OR any of your partners or employees are US citizens, and you or such partners or employees have a financial interest in or signature authority over trust accounts, you should be aware of the US government’s Report of Foreign Bank and Financial Accounts (FBAR) requirements.

An FBAR must be filed by any US citizen or green card holder or other US resident (“US persons”) with a financial interest in or signature authority over non-US financial accounts where the funds in the accounts together total USD$10,000 or more. This includes a lawyer’s trust account. BC lawyers who are US persons, or law firms whose signing authorities for trust accounts include US persons, should be aware of the requirements and ensure that any FBAR in respect of their trust account is filled out correctly.

At the end – where to get your FBAR advice:

Lawyers are encouraged to seek advice from a US tax lawyer concerning any questions regarding FBARs and the correctness and applicability of this information to their circumstances. The Law Society accepts no responsibility for any errors or omissions, and expressly disclaims such responsibility.

Now, let’s pause for a moment and consider the above statement. The statement is saying that Canadian lawyers are encouraged to:

1. Seek advice from a U.S. lawyer on how Canadian lawyers who were “Born In The USA” should proceed; and
2. The particular U.S. lawyer should be a “tax lawyer” considering that FBAR has nothing to do with taxation.

This is a problem for reasons that include:

1. U.S. lawyers are required to (and would always) advise compliance with U.S. law;
2. FBAR is an attempt to apply U.S. law in an extra-territorial manner; and
3. The whole purpose of the Law Society is to regulate the legal profession in the interest of the public and NOT in the interest of the profession.

In summary: the BC Law Society is saying to BC lawyers: Here is what you need to protect yourselves. The proper response should be to ask the question: does it protect the general public to advise BC lawyers to comply with U.S. FBAR rules? It seems to me that the directive that the BC Law Society should be giving to all lawyers is:

You are NOT under any circumstances to disclose information about your law firm trust account to a foreign government pursuant to a foreign law. If you feel you MUST do so, resign from the legal profession.

I will let you read the complete text. It does try to explain (totally lame and feeble) “how to comply with the FBAR requirements” but NOT disclose client information as follows:

Most importantly, it is necessary to ensure that no confidential information about clients is disclosed. Generally, a lawyer must not disclose having been retained by a person about a particular matter and should therefore ensure such information is not included in an FBAR (BC Codes. 3.3)

Is this possible in a practical sense? The FBAR rules do NOT ask about law firm clients. That said, the FBAR rules require that the bank statements be kept for 5 years and to be available for inspection by the U.S. Government. Yes, it’s true.

The BC Law Society of BC was willing to resist the application of the Canadian FINTRAC rules but appears to be willing to “roll over and play dead” with respect to the U.S. FBAR rules.

This shocking and sorry state of affairs raises a number of issues which include:
1. Can a Canadian law firm allow any “U.S. person” to have “signing authority” over a law firm bank account in general and a law firm trust account in particular?

2. Does a Canadian law firm have a duty to its clients to ask all it’s employees/lawyers to identify whether they are U.S. persons?

3. Does a “U.S. person” lawyer with signing authority over a law firm’s accounts have an ethical obligation to disclose this fact to a client?

Fascinating questions indeed.

I will write a more comprehensive post addressing this important issue.

Footnote …

Here is the Anne Frank comment (referred to earlier) in its insightful entirety. Focus on the sections which discuss whether Canadian citizens in Canada have the right to be treated ONLY as Canadian citizens. 

@StephenKish – a few more musings that may be of some assistance to the legal team preparing the case. I tried to post this on the ACDSovereignty blog, but it appears not to have gone through (the page just froze when i tried to post it). This is really written for the possible use of the Arvay team – I THINK I’m done venting and since I have the training, I couldn’t resist using it a bit. I hope they can find something useful in all of this. For our non-legal browsers, forgive me if I have delved to often into legal terminology below but I hope this will help gel some of the arguments in your minds as well. Pardon me in advance for the length! Here goes (and thanks to @George for directing me to the Convention – a useful additional bit of data for me):

Canada is a signatory to the 1930 Hague Convention regarding nationality. While the US is not a signatory (it was done under the auspices of the League of Nations which the US did not join), the US did in fact amend their citizenship laws in significant measure to conform to the Convention. Several provisions of the Convention are relevant here:
Article 1
It is for each State to determine under its own law who are its nationals. This law shall
be recognised by other States in so far as it is consistent with international
conventions, international custom, and the principles of law generally recognised with
regard to nationality.
Article 2
Any question as to whether a person possesses the nationality of a particular State
shall be determined in accordance with the law of that State.
Article 3
Subject to the provisions of the present Convention, a person having two or more
nationalities may be regarded as its national by each of the States whose nationality he
possesses.
…
Article 5
Within a third State, a person having more than one nationality shall be treated as if
he had only one. Without prejudice to the application of its law in matters of personal
status and of any conventions in force, a third State shall, of the nationalities which
any such person possesses, recognise exclusively in its territory either the nationality
of the country in which he is habitually and principally resident, or the nationality of
the country with which in the circumstances he appears to be in fact most closely
connected.

The combination of these Articles of the Hague Convention on Nationality (esp. Art. 3 & Art. 5) is the essence of the “Master Nationality Rule” under international law. Each State is competent to make its own laws regarding nationality which others shall recognize (proviso in Art. 1 though that they be in accordance with customary international law in that regard – not relevant to us here).

In relation to FATCA and C-31 we need to take note of Art 3 (dual nationals to be regarded as nationals of the state where they are) and Art 5 (closest connection test to determine which nationality is dominant in the case of 3rd states).

With FATCA, the US has effectively told the world that it chooses to ignore Art 3 and seeks to have, among others Canada, recognize its claim to impose US citizenship on potential nationals beyond its borders who are not themselves claiming the privilege. This is an astonishing claim. The Convention would recognize that the US can impose such citizenship (and tax) laws as it chooses within its own borders. However, by asking Canada to recognize those laws in relation to Canadian nationals resident in Canada, the US is effectively stepping outside the bounds of customary international law (as recognized by this treaty) to which Canada is bound. Reference to International Law in relation to identifying and enforcing Charter rights is certainly not unheard of. It is certainly relevant to a s. 1 justification claim.

Note as well that the Canada:US Tax Treaty – at least as it stood prior to C-31 – specifically carved out of Canada’s obligations any obligation to provide the US assistance in relation to tax claims against US citizens from and after the date they become Canadians. As I have pointed out elsewhere, Neither C-31 nor the IGA it enforces have purported to amend the US Canada Tax Treaty and could not do so since the IGA does not have force of treaty in the US. The IGA was merely created by way of an “executive order” to by-pass the Senate and the requirements of the US Constitution for treaties to be ratified by the Senate. It has the internal status in the US akin to an interpretation bulletin here: something they intend to act upon but are in no ways bound to do so.

In considering the defence that C-31 is “saved” by s. 1 of the Charter, the fact that it is out of step with Canada’s international undertakings, that it is responding to threats made (via FATCA) to Canada’s economic interests which themselves were violations of international law and the US Canada Tax Treaty (and the IGA is NOT a US Treaty, to repeat!) will be relevant arguments.

I would also add a note regarding the question of “damages” suffered by US Persons targeted by C-31. Canada’s tax treaty (and pronouncements made in Parliament by the Minister) make it clear that Canada is NOT helping to collect US taxes, still less fines and penalties, from Canadian citizens. The OBJECT of C-31 is to facilitate the US in making demands of them even if it won’t help enforce or collect by the automatic, warrant-less exchange of information. We need to make it quite clear to the un-informed exactly how burdensome this can be. A Canadian who is involuntarily identified in Canada by Canada as a US Person despite their Canadian citizenship must now live permanently under the following handicaps if, having been forcibly “outed” against their will, they CHOOSE to “become compliant” with US law while living in Canada:

1. He or she will be unable to enter into business with other Canadians through partnerships, small business corporations or unincorporated associations unless all of his or her Canadian partners consent to the requirement for detailed and confidential data regarding all financial accounts of that business to be made available electronically to the IRS in a foreign country.
2. He or she will be unable to be practice as a partner in a professional law or accounting firm unless the firm permits the disclosure of all of its financial accounts to the IRS in a foreign country and unless any professional bodies governing such firm (Law Society, CICA, etc.) permit the release of client-specific trust account information to the IRS in a foreign country.
3. He or she will be unable to accept employment involving managing bank accounts for an employer unless the employer consents to the release of detailed records of its financial accounts and ownership to the IRS in a foreign country.
4. He or she will be prohibited from owning most mutual funds offered for sale in Canada (as these do not provide the reporting needed for “PFIC” reports to the IRS) while Canadian securities laws will prohibit the purchase of US compliant mutual funds.
5. He or she may be denied access to some company pension plans if they are not recognized by the IRS and may be denied the benefits of various tax incentive programs enacted by Parliament with the intention of encouraging Canadians to engage in socially useful behaviour (including saving for retirement, saving for disability, TFSA’s or saving for education). He or she will be denied access (in part) to incentives to encourage home ownership and will thus be less able than other Canadians to aspire to or undertake that step.
6. He or she may be compelled to register for possible military service (Selective Service or the Draft) under potential criminal penalties for failure to comply.
7. All data transmitted to the IRS will be done so electronically, will be subject to risk of hacking, will be available for use by other US agencies for unknown purposes and any recourse regarding misuse of such data would be solely before foreign courts or tribunals

The foregoing are just a few of the foreseeable consequences of C-31. Remember – NO foreign law, including US law, applies in Canada. Canadians targeted either by the long-arm provisions of the US Tax Code or FBAR/FINCEN requirements have every right, as Canadians, to decline to submit to the jurisdiction of US law or courts while living in Canada. Their right to do so is all the more evident where the US exercise of long arm jurisdiction is unique and in some aspects contrary to customary international law. While not requiring ANY Canadian to actually comply with US law while living in Canada, C-31 seeks to identify potential US Persons to US enforcement agencies. The only foreseeable consequence of this of course is that the US Persons so identified will become compliant or they will not. There is hardly any purpose in identifying US Persons who have not been compliant so that they can choose not to be compliant. The only rational view of C-31 is that it was intended to COMPEL all US Persons in Canada to become compliant with US law while living in Canada, regardless of their prior choice. The form of compulsion chosen is the threat of the disclosure of private, personal data to a foreign government by Canada – in other words, being “outed”. If the victims of such coercion choose to become compliant, the consequences listed above are absolutely foreseeable consequences. Canada is correct that it is US law the creates the harm, but it is Canadian law (C-31) which makes otherwise ineffective or toothless US law in Canada effective. Canada cannot help the US aim the gun, identify the victim and then deny any responsibility for the obvious and intended outcome.

A simple analogy makes the point. Requiring gay people to be identified and then automatically sharing that information with a party who, armed with the information, can harm them is not a neutral action any more than sending a register of black people living in Canada to the KKK is a neutral action. A party intends the ordinary and foreseeable consequence of their actions and Canada, by disclosing the identity and private financial affairs of potential US Persons to a foreign government must accept the consequences of that action. The consequence – described above – is the subjection of the persons so identified to perpetual handicap while living in Canada. Those foreseeable – indeed, intended – consequences of disclosure cannot be divorced from the act of disclosure when considering the Constitutional validity of the law which made the disclosure.

Prior to C-31, we know that few, if any, potential US Persons living in Canada were in fact “compliant”. The number of returns filed in the US from Canada is trivial compared to the hundreds of thousands, if not millions, of potential US Persons living here. This is not, however, a numbers game. The Charter arguments would be the same if FATCA and C-31 only sought to uncover a single Canadian, after all. The ONLY point of FATCA is to seek information the US did not already have about US Persons it could not otherwise identify. With C-31, Canada has agreed to out any Canadians who MIGHT fit the bill. No other nationality is singled out for this treatment – Canadian citizens of Chinese, North Korean or Cuban origin do not live in fear that their private personal data will be automatically transmitted to a land they or their parents may have fled from.

What then of the Canadian who, though “outed” , chooses not to comply?

1. They may find themselves on the receiving end of US enforcement proceedings which may include threats of arrest or imprisonment as well as financial demands which are designed to be in terrorem and would amount to the virtual confiscation of the life savings of any victim of such demands by reason of the multiplication of FBAR penalties alone.
2. Were warrants for arrest to be issued in consequence of Canada’s action, the object of such warrants could be subject to forcible rendition into the US should they take a domestic Canadian flight should the pilot decide (unknown to the passengers) to take a flight route involving transit over US airspace to conserve fuel. Canadian planes do this hundreds of times per day and each such flight is subject to being forced to land in the US should the US so decide.

Prior to FATCA, few US Persons had the tiniest inkling of the magnitude of the handicaps the US intends to impose upon those of its citizens or former immigrants who reside abroad. Few can learn of the full breadth of such vicious, narrow-minded laws without being offended to the core of their being. Clearly the US is either ignorant of the circumstances of those upon whom they bestow the blessings of citizenship abroad or they do not care. No country on earth subjects its people to that treatment and the only conclusion possible is that the US considers it a form of treason to live outside of it. Those few that were aware, or have become aware and wish to have nothing to do with them, formerly had the protection of their own country (Canada) plus the knowledge that the US lacked any means to enforce these measures beyond their borders. C-31 has chosen to single them out though and deprive them of their choice not to comply.

As noted, the only possible object of C-31 is to compel those who are not compliant with US law in Canada to become compliant. Becoming compliant with US law while living a normal, middle-class life in Canada involves tremendous hardship and limitation of career options as noted above. C-31 – by choosing to single out US Persons from among all other “hyphenated” Canadians – uniquely singles them out for this handicapped existence and deprives them of the choice to ignore the US while living in Canada.

There is of course a third option. Renounce (or its cousin, Relinquish). Two thoughts need to be borne in mind here. Firstly, the US has been throwing roadblocks and obstacles in front of this path for the past 25 years or so. Space prevents me from listing all the laws passed since 1994 imposing ten year tax filing obligations, exit taxes, renunciation fees added in 2011 then quintupled in 2014, lengthy waiting lists, etc. The party choosing to undertake this path must first VOLUNTARILY disclose their existence to the US. Thus, C-31 coercing Canadians into renunciation by threatening to disclose their private financial and other data to the US cannot escape the consequences of that action by arguing that the victims can renounce when the consequence of doing so is disclosure of all of that same data plus all the handicaps described above. The only improvement renunciation offers is a foreseeable end to the pain in future years (and at a steep price). Amnesty programs are all flawed and, in any event, fully discretionary. These can hardly be pointed to as mitigation of the effects of C-31.

Secondly, recall the Treaty provisions above. US law determines who is a US Person and, despite what many may think, that is in fact the correct position. Canada can’t decide US citizenship law for the US. Normally, that does not matter since, under the Treaty, we have no obligation to give effect to foreign nationality rules inside our borders in relation to our own nationals. A further adverse impact of “outing” under C-31 is that it subjects the INNOCENT (i.e. an “undocumented” non-US Person) to the peril of having to prove their non-status in a US proceeding. Needless to say, that is a foreign proceeding before a foreign tribunal and with no recourse to Canadian courts. A Canadian who certifies that they are NOT a US Person but does not possess a CLN may be compelled to obtain one in order to prevent their data from being transmitted. Applying for a CLN, of course, involves transmission of some or all of that same data (since compliance to the effective date of the CLN is a requirement). Not all Canadians live in a city where the US has a Consulate or Embassy, so getting a CLN involves a commitment of time and money. As well, should the US contest the entitlement to a CLN, there is no recourse in Canada. The only option is to submit to US courts and US process to try to establish, in the US, that one is not one of them. No Canadian is obliged to establish their loss of prior nationality to enjoy all the benefits of Canadian citizenship save and except US-born Canadians.

The arguments discussed above of course apply with still more force in the case of Canadian born US Persons who owe their unfortunate status to a Green Card not surrendered in the prescribed fashion for tax purposes or to having been born in Canada to US-born parents.

Hope some of this is useful to the team and informative to some of our lay readers.

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A thanks to all of you who are supporting our Charter challenge.

John Richardson

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