Some of you know that the Israeli Supreme Court recently issued a temporary injunction preventing implementation of the U.S. FATCA law in Israel. See for example Forbes article.
On September 12, 2016 the Israeli Supreme Court, however, quashed the injunction.
Marc Zell, a counsel to the two petitioners (Republicans Overseas and Rina Schreiber) confirmed to me today (September 14) that they have no intention of giving up the FATCA litigation fight in Israel — which will continue. He also reminded me that the lawsuit is in fact still pending as the Israeli Supreme Court has not issued an opinion.
Two surprising statements made by the Justices deserve mention:
1) “Privacy in modern life is very limited,” said Justice Menahem Mazuz, one of three judges who ruled on the matter. “This is nothing new, the only change is that the regulations have now been codified into law.” [“The court ruled that the Israeli law, passed as part of an arrangement with the United States Treasury Department, did not violate Israel’s Basic Laws of Human Dignity and Liberty.”]
[Compare the above statement on privacy with a similar argument made by U.S. Treasury Department et al. against the plaintiffs of the U.S. FATCA lawsuit: “…there is no legitimate expectation of privacy concerning information kept in bank records, and the Sixth Circuit has repeatedly reaffirmed as much…”]
2) Justice Hanan Meltzer in part justified the law by noting its acceptance by the United States, saying this created a presumption of constitutionality.
“As long as the US law is in force, there is a presumption of constitutionality in regards to its purposes.” Above from: http://www.israelnationalnews.com/News/News.aspx/217717
Just a reminder that you can use a custom avatar (like my ever more relevant Banana Republic) on IBS (a WordPress blog) if you create one first in Gravatar:
The same Gravatar will also show-up in Disqus, another common commenting engine.
Thanks for the info, Deckard! I see that I’m not the only one. 🙂
Looks like the news is not good:
Israeli Court Rejects Petition to Block Sharing Tax Data With U.S.
Judges indicate that law appropriate answer to tax evasion.
Efrat Neuman Sep 12, 2016 11:37 PM
Israel’s High Court of Justice on Monday rejected a petition seeking to block the government’s plan to share information with the…
read more: http://www.haaretz.com/israel-news/business/.premium-1.741725
Unfortunately, exactly what I expected.
Court approves law targeting Americans living in Israel
Supreme Court justifies transfer of personal information, says ‘privacy limited theses days, regardless of law.’
Ellen, this is from the article you found:
“Justice Hanan Meltzer in part justified the law by noting its acceptance by the United States, saying this created a presumption of constitutionality.
“As long as the US law is in force, there is a presumption of constitutionality in regards to its purposes.””
The presumption is it’s constitutional in the US (it’s legal because it’s the law), therefore its constitutional in Israel. So much for sovereignty.
Marc Zell also mentioned that the judge insisted the government should have procedural safeguards in place for citizens. What might those safeguards look like?
My understanding is the Israeli court is requiring either the banks or the Israeli Revenue Agency to give 30 days notice to effected persons that their banking information is going to be transferred to the IRS. Notably the CRA and Trudeau govt reject doing this.
I almost cannot believe the judge said this:
“As long as the US law is in force, there is a presumption of constitutionality in regards to its purposes.”
What kind of court assumes such a thing?
Patricia asked, “What kind of court assumes such a thing?” A rabid left wing court that appoints it’s own membership for life. A court that has no relationship with the people, who answers to no one but the extreme elite.
If that’s the case, Israel will have to delay the first transfer of information on September 30th, I believe it is.
It took a personal letter and months for the Revenue Minister to confirm my banking information had been turned over to the IRS in that first transfer of information last year. In her letter to me she wrote “Please note that the CRA is also working with financial institutions to offer guidance and promote awareness as related to client-specific enquiries.” Sounds as though you’re right that the CRA and Trudeau government have no intention of informing suspected US persons beforehand, and although the Privacy Commissioner recommended they do so.
My understanding is the judge who issued the original temporary injunction and the judge who issued this ruling are different. The judge who issued the ruling was a longtime career civil servant who worked closely with the US government for many years. On the other hand the judge who issued the original injunction has a bit of a “reputation” according to IRS Medic for being a lone wolf.
I guess “ballsy” Israel got neutered.
This is also from Israeli National News article from Ellen D:
“Banks not in compliance with the FATCA face massive withholding taxes, something opponents of the law say effectively compels countries to consent to the law.”
Not good news for Israel or anyone else. Looks like the US imposing extreme financial sanctions on any country that doesn’t comply with FATCA. And getting away with it.
Well… so much for that…
Nothing against Mark Zell but he isn’t the Israeli equivalent of Arvay and I am not sure Israeli constitutional law is as developed as Canadian. This ruling reminds me of some of the early unsuccessful charter cases in the late 1980s.
Canadian law professor Alan Young did a talk at Western University in London, ON on these early unsuccessful charter challenges.
Let’s hope that Mr. Arvay prevails and is successful with our lawsuit. I’ve met him at the Canadian Summary FATCA trial in Vancouver. He is excellent.
No —- The Israeli FATCA lawsuit is not dead. Marc Zell (counsel to the petitioners) just confirmed to me that they have no intention of giving up the fight — and that the FATCA litigation fight in Israel will continue. “Doing nothing”, even when litigation is challenging, is not an option. I have revised my post above to make this point.
I have always felt that every FATCA compliant country in the world needs a Marc Zell advocate arguing on behalf of their country’s sovereignty.
““As long as the US law is in force, there is a presumption of constitutionality in regards to its purposes.”””
That presumption is too big to be credible coming from an informed person tasked with a high level of logic, experience, training and performance as a judge – a legal expert in a court of law, and one responsible to bring a higher level of reason and critical analysis to what is before him – the “presumption” is more like a leap of religious faith (no proof required, all facts discarded as irrelevant ) or a willful delusion.
If we use that standard of disregard and lack of critical analysis to all that issues forth from the mouth of the US, there is a lot of other bs that Israel and the rest of the world will have to accept as true without any credible proof – just cause the US government has spoken – and that leads to unconstitutional acts like these; ex.https://www.aclu.org/fact-sheet-extraordinary-rendition https://en.wikipedia.org/wiki/Extraordinary_rendition https://www.washingtonpost.com/news/worldviews/wp/2013/02/05/a-staggering-map-of-the-54-countries-that-reportedly-participated-in-the-cias-rendition-program/ http://www.nytimes.com/2001/06/29/opinion/lying-about-vietnam.html?_r=0 http://www.counterpunch.org/2016/07/07/iraqs-weapons-of-mass-destruction-who-said-what-when/ https://www.theguardian.com/world/2015/nov/30/blair-and-bush-went-to-war-in-iraq-despite-south-africas-wmd-assurances http://www.alternet.org/story/149393/wikileaks'_most_terrifying_revelation%3A_just_how_much_our_government_lies_to_us https://www.theguardian.com/commentisfree/2014/may/17/government-lies-nsa-justice-department-supreme-court .
How could anyone credibly argue that it was logical, factual or wise to presume by default that the US government and US laws were always constitutional or even legal by its own, or international standards?
If that were so, there would be no need to take the US government and the US as a country to task on so very many issues INSIDE the US ex. http://www.infoplease.com/ipa/A0101289.html https://www.aclu.org/ and outside the US http://www.independent.co.uk/news/world/americas/cia-mistakenly-destroys-copy-of-6700-page-us-torture-report-feinstein-a7034096.html http://www.icj-cij.org/docket/index.php?p1=3&p2=3https://www.globalpolicy.org/us-un-and-international-law-8-24/us-opposition-to-the-icc-8-29.html or reason for the US to oppose the International Court of Justice in The Hague http://www.wsj.com/articles/chinas-defiance-of-international-court-has-precedentu-s-defiance-1467919982 http://www.icj-cij.org/docket/index.php?p1=3&p2=3 . The list of offences barely scratches the surface…..
We’ll that’s good to know, Stephen.
I asked Mr Zell if he would consider the issue of discrimination relating to the fact that Israel’s tax collecting agency would have unprecedented access to information on one specific group of Israelis – the same issue we have in Canada with the CRA.
Thank you for the update Stephen. It is heartening that the fight against FATCA in Israel will continue. The more fronts challenging the rights and constitutionality issues raised by the IGAs and their implementation, the better.
Thank you to Marc Zell and the petitioners.
Notice how much of all this mess rests on utterly unsubstantiated presumption by judges!!!
“As long as the US law is in force, there is a PRESUMPTION of constitutionality in regards to its purposes.”
Justice Hanan Meltzer, Israel Supreme Court
“the confusion of thought consists in mistaking the scope and extent of the sovereign power of the United States as a nation and its relation to its citizens and their relations to it. It [the defense argument being rejected in the verdict] PRESUMES that government does not by its very nature benefit the citizen and his property wherever found.”
Justice White, in United States v. Bennett (1914).
“The contention was rejected [by Justice White] that a citizen’s property without the limits of the United States derives no benefit from the United States. The contention, it was said, came from the confusion of thought in ‘mistaking the scope and extent of the sovereign power of the United States as a nation and its relations to its citizens and their relation to it.’ And that power in its scope and extent, it was decided [supposedly, but not actually, by Justice White; read carefully above], is based on the PRESUMPTION that government by its very nature benefits the citizen and his property wherever found….”
Justice McKenna, in Cook v. Tait (1924)
@Shovel, as an undergrad, if I had done as much unsubstantiated presuming and on so large a scale in my assignments without even a hint of a citation or some more robust evidence and basis, I’d never have passed.
The bar seems set very low when apparently judges can just randomly ‘presume’ stuff that nakedly rationalizes the biased outcome they apparently already know they want to assert. So then, why can’t we just ‘presume’ that the US is unlawful in asserting extrajurisdictional life control over people not physically present or economically within its geographical boundaries? Why can’t we just ‘presume’ that extraterritorial taxation based on mere parentage or birthplace is an offense against our human and civil rights – and cite the US as an outlier as compared to the rest of the world? Why can’t we just ‘presume’ the opposite of the judges’ presumption?
The reason is that our presumption isn’t backed by extortionate threats of unjustified withholding on the scale of FATCA as wielded by the US bully with the support of colluding home governments with trade deals and pipelines and other things to barter, and Banksters who’re happy to stampede over us cause we’re inconveniently in the way of them stuffing their gaping maws at the US trough.
The bully and its mouthpieces apparently get to ‘presume’ anything they like – and get all taxpayers to pay for it.
“The bar seems set very low when apparently judges can just randomly ‘presume’ stuff”
That’s exactly how courts operate.
US Supreme Court chooses to take cases and make rulings that make laws operate the way the honoured injustices want them to operate. US Supreme Court does not choose to take cases or make rulings based on facts. They do not care about facts.
Lower courts are supposed to be bound by precedents from higher courts. If lower courts violate higher courts, lower courts risk being overturned but meanwhile people suffer injustices. On the other hand, if lower courts comply with higher courts, lower courts risk being overturned (when the more powerful party appeals) and people suffer injustices. Either way, however, lower courts comply with one policy of US Supreme Court: they do not care about facts.
Old joke: If the facts are on your side, pound the facts. If the facts aren’t on your side but the law is, pound the law. If neither the facts nor law are on your side, pound the table.
Actual practice: If the facts aren’t on your side, make up different ones. Of course they’ll be false, but that doesn’t matter. Pound the ones you made up.
Further actual practice: If you’re the more powerful party, you might not do a good enough job of making up facts. The less powerful party might disprove them. Don’t worry. The court will make up more facts for you, which neither party never even thought of, which neither party addressed in proceedings.
Now, what does this have to do with Israel? Or with Canada? If it’s not already obvious, take another look. One thing that lower courts do is comply with the US Supreme Court’s disrespect for facts. If you have any illusions that Israel’s courts or Canada’s courts aren’t lower than US Supreme Court, you’re going to be sadly disappointed. Same as me.
The biggest thing which should be hammered on legally is the freezing of the local bank accounts of single-citizenship Canadian (or Israeli, or British, or Swiss) citizens who are being declared “US Persons” by the arbitrary and capricious decisions of the US. This isn’t justifiable and is actually discrimination on the basis of national origin. The US attempt to charge fees for getting proof of NON-citizenship (non-citizenship established decades ago by international, US, and other national laws) is a new one, and should be considered an unacceptable demand — it’s demanding that a single-citizenship citizen prove their innocence of the crime of “dual loyalty”, which is a reversal of the burden of proof.
I think this is the point which is going to win the sympathy of judges, so it’s the one which needs to be hammered on repeatedly. If a Canadian citizen says to their bank, “No, I’m not a US citizen, I ended that when I turned 18”, that should be that.