March 8, 2016 UPDATE: Legal fees paid — on to Federal Court for Charter trial contesting Canadian FATCA IGA legislation.
Canadians and International Supporters:
You came through once again: $594,970 for legal costs have now been donated and our outstanding legal bill is finally paid off.
Thanks especially to those who donated even though they never had any “spare” money to give, and despite this gave over and over and over again.
This last round of fundraising also shows that our Canadian lawsuit remains dependent on the kindness of our International Friends: There would be no lawsuit without their financial help.
Know that a very generous donation (today) from a supporter in the United States made it possible to pay off the remaining legal debt. Also please appreciate that there would be no lawsuit without the help of the Isaac Brock Society which has kindly let us use its website to solicit funds.
Our next step is the Constitutional-Charter trial in Federal Court.
For this we need more Canadian Witnesses, and my next post will be devoted only to a request for Witnesses willing to go public, like our Plaintiffs Ginny and Gwen.
For the future: I want a win in Federal Court — and I want the new Liberal Government not to appeal that win.
Thank you all for your support,
Stephen Kish,
for the Directors,
Alliance for the Defence of Canadian Sovereignty
“With regard of the theft of IRS data, according to Jim Jatras, IRS data is offered at least some level of data protection legally”
26 USC section 1603 says that IRS data is offered some level of protection. A publication by the US Department of Justice says that the IRS can provide information to the DOJ but the DOJ can’t disclose it publicly, which makes sense to me. Court rules also say that filers have to redact information, and do not make exceptions when the filer is the DOJ. However, the DOJ told US District Court for the Central District of California (in Los Angeles) that courts have repeatedly upheld the DOJ’s public disclosure of protected information, and that District Court ruled that court rules are too complicated for the DOJ to obey. This is under appeal, so who knows if the barn door will get closed after the horse escaped, but the horse doesn’t go back into the bottle.
“however, for FATCA data it is ‘reclassified’ as data not afforeded data protection.”
My cases aren’t FATCA. Though I wonder, how much of that information is reclassified? Name, account number, and social security number? Enough for identity thieves to drain the account even if the thieves aren’t IRS employees?
“about the 155,000 accounts that the CRA turned over to the IRS […]
how many are Canadians living in the US who unwittingly kept bank/financial accounts in Canada (indicium is US address, phone number etc.)?”
Maybe we shouldn’t complain about that part of it. That would be RBT and seems pretty well justifiable. Whether witting or unwitting, Canada should have first crack at SBT (source based taxation) and the person should use US Form 1116 to get a foreign tax credit to reduce the US’s tax to its proper share.
“No, I hadn’t filed any US returns since coming to Canada.”
Then it sounds like identity thieves did, and the IRS might have sent notices to the thieves before changing the address back to your address to send you the notice you got.
“After meeting other Canadians who came from the US years ago, I was told they never filed any US returns and never heard from the IRS.”
I met some like that too, and used to wonder why. Of course now I know why. Being (or trying to be) compliant is worse than not trying.
“My attorney told me later that the IRS will file for you if there is any kind of paper trail, When the IRS files for an individual, it is done in the most profitable way for the IRS.”
The IRS threatened to create a return for me for at least one tax year, so I gave them copies of my Forms 1099 and 1042-S, but they never gave me a copy of such a creation. Some years later I noticed that the threat came from the same location where Monica Hernandez worked. I guess they were afraid if they followed the money trail she was going to get caught.
“My pre-FATCA IRS threatening letter took 4 years to land on my doorstep. Actually it was a registered letter which I signed for never suspecting it was from the IRS.”
You mean that registered letter took 4 years from the date of mailing to the date of delivery?
You have to file a Request for Collection Due Process Hearing within 30 days from the date of that kind of letter. As far as I can tell, it’s ambiguous whether that means 30 days from the date printed on the letter itself or 30 days from the date of dispatching by registered mail. One registered letter that I got from the IRS was dispatched by registered mail a few months later than the date printed in the letter, but it wasn’t a kind of letter that needs a quick response. One unregistered letter had a postal meter dated about 40 days later than the date printed in the letter itself, and that one did require me to take action within 30 days, but US Tax Court evaded the question of which date counts. There is one instance of a registered letter from me which took a few days to reach a post office in Washington DC and then a further 60 days or so from there to US Court of Federal Claims, but that also wasn’t one that required a quick response. There are also several registered letters from me to the IRS that disappeared without being delivered.
“What effect would Justice Scalia’s replacement have on the future Jim Bopp case?”
Probably none. The Fifth Amendment was already dead while Scalia was on the court, so all it can do now is get deader.
If somebody took pictures of you undressing, you don’t have to prove that the pictures were then uploaded onto the internet or that people drooled over them. Disclosure of bank records constitutes ipso facto a violation of your right to privacy. There are plenty of naturalised Canadian citizens in that category, and they are not classified as U.S. citizens under Canadian law.
Thanks EmBee for the birthday wishes. Sadly I didn’t raise the funds I had hoped for. This is why Stephen Kish is the fundraiser not I.
But we broke through the $22,000 mark which is encouraging. All of this is a much needed lesson in patience for me. Every dollar is gratefully appreciated. Just wish it weren’t on the backs of the same small group of donors. But gratitude to all of them.
I decided to set my clock and calendar back and now I am 50 again. This time next year we will be talking about our court experience, legal arguments and all that good stuff.
To whomever is the daily donor: you have really touched my heart. Until I became a plaintiff, instead of a hard hearted solicitor, I didn’t know people like you existed. For me personally, this experience has been transformative. I thank all of you for giving me this once in a life time experience. I acknowledge that for most of you/us it has been and is an ongoing nightmare.
But I need to find the good where I can: and the donors are the best.
Thank you for the trust you have placed in Gwen and me and the committee.
Happy Birthday to all of you whenever that day is. Cheers!
Happy Birthday, Ginny.
and
tomorrow – or today for some – many Valentine hearts for all our donors.
What are the time sensitive legal actions that may be required?
What will be the costs of the time sensitive legal actions that may be required?
When do we need to move forward on the time sensitive legal actions that may be required?
@calgary411
Thank you for the Valentine’s Day greetings!
@Kish Did you receive the package of Euros under donation code “Monticello 201602” or something like that??
Monticello, I will have to check Monday.
Could you email me at stephen.kish.chair@adcs-adsc.ca and I will respond.
Scalia: How would US Supreme Court Justice Scalia have voted in the US FATCA lawsuit?
FATCA deals in large part with privacy. The US Government lawyers told the plaintiffs in the FATCA-FBAR-IGA lawsuit that there can be no expectation of privacy in bank records. My understanding is that Scalia never believed in a Constitutional right of privacy because, as a strict constitutionalist, he felt that there was no specific protection mentioned in the U.S. Constitution, and if it is not in the Constitution, it does not exist:
“SCALIA: There is no right to privacy. No generalized right to privacy.
WALLACE: Well, in the Griswold case, the court said there was.
SCALIA: Indeed it did, and that was – that was wrong.”
There are other issues beyond privacy in the Canadian FATCA lawsuit (sovereignty, compliance with a US extortion demand, etc.) and a “FATCA lawsuit” may have an easier time of defeating the law/enabling law in the Canadian vs. United States Supreme Court.
@kish but doesn’t the 4th amendment embody and/or imply a right to privacy?
I think the mom is correct as they have six years to assess fbar
@Stephen, I haven’t met anyone affected by USP taint who has received a FATCA letter from the IRS – yet. I did have someone referred to me who had a request from their bank (TD) to certify that they were not a USP – and after an email exchange, eventually referred them to two of John’s seminar sessions. Didn’t hear back from them as to the outcome after that though I followed up.
Have not met anyone else who has admitted to having gotten anything from their bank or IRS yet but I will try to recruit potentials when I meet them.
Badger,
Thank you for trying.
Brockers should try to get coverage in Amac Advantage, the magazine of AMAC, which is the politically conservative counterpart to the liberal AARP.
@Norman Diamond
RE” PatCanadian says, “My pre-FATCA IRS threatening letter took 4 years to land on my doorstep. Actually it was a registered letter which I signed for never suspecting it was from the IRS.”
Norman Diamond says,”You mean that registered letter took 4 years from the date of mailing to the date of delivery?”
I should have worded that more clearly Norman. I meant it took 4 years for the IRS to figure out I left the US in 2004 and ceased filing. In 2008, I got the IRS letter, don’t know when they mailed it. Meaning simply that it takes time for whatever mechanisms they have at the IRS to find us “TAX CHEATS” who owe them nothing in the end.
Was identity theft involved? I’ve no idea. Happy to have my Canadian citizenship and CLN from the USA now.
Tom, you also mentioned previously about the Amac Foundation. It’s unlikely I think that the Foundation will provide any financial support to us.
The Amac Advantage magazine is focused on US people living in the US. One article was on “protecting American seniors”. How about protecting “American” seniors who live overseas. I don’t have the time to write an article but maybe someone else does. I will ask around. The article might educate a few homelanders.
[ALL, please help by your donations and willingness to be a Witness.]
Further questions raised about il/legality of the IGAs (and other FATCA issues). Makes point about how IGA to be interpreted in light of existing TIEAs (didn’t that feature in the ADCS hearing?). Canada’s Access to Banking law mentioned, and taxpayer rights.
Useful to read in light of the lawsuit.
Questions about the il/legality of the FATCA IGAs, reciprocity, etc.
Paper by Leopoldo Parado, highlighted by Prof. Allison Christians on her blog; “….Parada’s article goes further in the analysis and lays out a number of enduring difficulties. It seems to me that governments are simply ignoring these difficult issues as inconvenient barriers to desired outcomes and courts will face the same temptation. But I don’t think these issues go away with time and gradual acceptance of FATCA as an institution. Instead, I think the issue will cause systemic problems going forward, both in terms of raising endless conflicts of law, and in terms of the precedent set for international tax relations by the failure of states to challenge US exceptionalism even as it tramples on law and legal process throughout the world….”
quoted from;
http://taxpol.blogspot.ca/2016/02/parada-legal-questions-surrounding.html
Free fulltext is available via SSRN: http://ssrn.com/abstract=2720182
See;
Parada, Leopoldo, Intergovernmental Agreements and the Implementation of FATCA in Europe (June 24, 2015). World Tax Journal Vol. 7, No. 2, 2015. Available at SSRN: http://ssrn.com/abstract=2720182
…………”2.4. The legal nature of the IGAs
Are the intergovernmental agreements truly international agreements?Following the analysis of the general
characteristics of IGAs Model 1 and 2, the author estimates that there are important arguments, in form and in substance, to consider that the new IGAs lack the characteristics of an international agreement, at least for one of the parties involved: the United Sates.[27]
Formally speaking and contrary to the normal process of approval of international agreements in the United States, the IGAs follow the proceedings of an internal law coming into play as “executive agreements”.[28] This means that the agreements do not contemplate any process of ratification,as is normally required in the United States for international agreements.[29] Then, a simple written notice between the parties is deemed sufficient, provided that the domestic proceedings in each country have been accomplished.[30] Furthermore, the IGAs do not contemplate normal mechanisms
of reform in comparison with other international agreements.[31]
Additionally, and substantively speaking, there are two specific characteristics of the IGAs themselves that permit to support the idea that they would not be proper international agreements for any of the parties involved………………”
“as a strict constitutionalist, he felt that there was no specific protection mentioned in the U.S. Constitution, and if it is not in the Constitution, it does not exist:”
That is not strict construction. Strict construction is that if the constitution doesn’t give a power to the US government then the US government doesn’t have that power. That’s why, when the Bill of Rights was under consideration before 10 of them were enacted, some people felt there was no need for the Bill of Rights. That’s also why the 10th right further emphasizes that the first 9 are not limitations.
Meanwhile, the absence of privacy regarding banking records simply means that the US government can subpoena such records from banks or third parties, can enter them into evidence, and can disclose them publicly. It doesn’t mean that the account holder can be compelled to be a witness against the account holder’s self, it only means that other entities can be. The utter destruction of the fifth amendment is what makes it possible to compel the account holder to be a witness against the account holder’s self.
” did have someone referred to me who had a request from their bank (TD) to certify that they were not a USP”
I did have such a request from my stockbroker (TD Waterhouse, in Canada) in 2002. Unfortunately I told the truth. Honesty led to harm, having US withholding in addition to Canadian withholding deducted from Canadian sourced interest income, which US withholding became available for the IRS’s identity thieves including Monica Hernandez and others to embezzle and to frame me for fraud.
Tell the ‘mericans that if they don’t repeal FATCA you’ll send them more of these cold air masses.
Interesting:
StartRight Syrian Immigration Program / Scotiabank