Republicans Overseas (RO) has brought forward a lawsuit against the United States Department of the Treasury, United States Internal Revenue Service, and United States Financial Crimes Enforcement Network over FATCA, IGAs, and the FBAR.
In the back and forth of the litigation, the US Government continues to argue that none of the plaintiffs have any “standing” or have suffered any harm that is relevant for legal/litigation purposes. This is the latest (September 15, 2016) response of the Jim Bopp RO team to the the Government’s arguments. See the link.
A bit of text From the response brief:
“In pre-enforcement challenges, as here, plaintiffs are not required to violate laws to challenge them. One may comply with a statute though deeming it unconstitutional and challenge it as being an unconstitutional burden. See, e.g., Davis v. FEC, 554 U.S. 724 (2008)…”
“The Government says it has never sought to impose an FBAR penalty against Zell [who is also the attorney in the Israeli FATCA lawsuit] (Opp’n 65), but the Government has nowhere eschewed enforcement, so the provision is not moribund and pre-enforcement challenges allow one to challenge provisions before enforcement begins. He reasonably fears enforcement for noncompliance. (Am.Compl. ¶¶ 130, 132.)”
“The government never addresses Warth on this issue and ignores the other two cases, so the Government’s argument that the actions, e.g., of FFIs, are not fairly traceable to challenged provisions/agreements is already suspect for failing to engage the required analysis. For example, the Government says “Crawford’s alleged loss of business is not fairly traceable to the challenged provisions of FATCA because it results from the independent actions of third parties.” (Opp’n 46.) But that continued assertion cannot be taken seriously given the Government’s failure to show why the coercive aspects of the challenged provisions/IGAs on FFIs do not suffice for traceability under the coerced-harm, indirect-harm, contributing-factor authorities that the Government ignores.”
“Similarly, the Democrats Abroad study shows that FATCA/IGAs are causing widespread relationship harms: “‘their relationships with their non-American spouses are under strain.’” (Br. 26 (citation omitted).) And some Plaintiffs here verify they are experiencing the same such problems as many others have. Yet the Government dismissively cites the district court for the proposition that “disagreement with one’s spouse about a government policy is not a concrete injury on which a federal lawsuit is based.” (Opp’n 41.) But the court errs because the “disagreement” is based on asserted constitutional privacy and equal-protection rights and also on government-coerced actions that are the logical result of the Government’s actions in enacting FATCA, FBAR, and IGAs, e.g., the separation of accounts.”
“Another example of an erroneous non-traceability argument is the Government’s argument that Katerina Johnson suffers no harm because she is not a U.S. citizen and so not subject to any challenged provision/IGA. (Opp’n 66-67.) But of course, this argument ignores the indirect coercive-effect harm, described above, that she experiences as a result of being married to a U.S. Citizen. And the Government claims she “alleges no concrete injury from . . . separation” of her accounts from those of her spouse (Opp’n 79), but the separation itself is cognizable harm traceable to challenged provisions/IGAs. Thus, she has concrete injury that is traceable to government action.”
“The Government says Zell alleges “that his clients have suffered various indignities at the hands of Israeli banks” and alleges invasion of the attorney-client privilege that “belongs to the client alone.” (Opp’n 45 & n.13.) But while a client may waive the attorney-client privilege, absent such a waiver an attorney has a strong interest in preserving the privilege. And Plaintiff Zell verifies loss of business, as the Government acknowledges (Opp’n 47-48) and that his harms are ongoing (Am.Compl. ¶ 133, RE32-1, PageID# 462). Moreover, as a fiduciary and trustee he has a personal interest in protecting information about client accounts. And the Government concedes that the Israeli IGA requires disclosure of such accounts. (Opp’n 48.)”
“The Government argues that Plaintiffs never asserted loss of citizenship as a harm (Opp’n 44 n.12), but Plaintiffs clearly recited the loss of citizenship as a harm flowing from challenged provisions and agreements and then provided Plaintiffs who renounced citizenship on that very basis (Am.Compl. ¶¶ 5, 9, 69, 73-74 (Kuettel), 90, 96-97 (Nelson). So reading the complaint as a whole and giving implications to Plaintiffs, Plaintiffs made that claim. Anyway, Plaintiff Kish has now also renounced his citizenship due to challenged provisions/agreements, and recites the harm in his attached declaration (Exhibit A), so it is at issue.”
@ The_Animal
I don’t have the right profile to comment at FATCA REBEL so I’ll just say BRAVO and SPOT ON right here. BTW, is that an upper case “I” instead of an “L” on your clever header? Wish I knew how to pluck your family out from under the dark clouds of US tax terror.
Sen. Rand’s legislation won’t be dead if the Republicans get enough clout to implement their official stand against FATCA (officially in their platform). Rep. Mark Meadows has 2 co-sponsors from S.C. on board with him and the House is likely to stay Republican. Go GOP!
Thankfully, Carl Levin and Max Baucus (author of FATCA) are already retired from Congress; Charlie Rangel and Harry Reid are joining Obama in leaving gov’t in a few months.
@UK Rose, thanks for the links to the articles, which ended with this convincing argument:
“Citizen-based taxation also violates a basic principle of government, as set down by John Locke. The American colonists took their marching cry no taxation without representation from Locke. But, in the very same passage in which Locke requires representation, he sets out a second limit on taxation. Governments are only entitled to tax when they provide protection from foreign invasion and internal strife. Legally, the U.S. government can only protect persons living within its borders from foreign invasion and internal strife. . . . By signing the FATCA Intergovernmental Agreement, the government of Canada became complicit in both an invasion of its own sovereignty and a fundamental illegality. Time to rethink.”
‘This provoked a reply from Colonel Isaac Barré which read: “They planted by your care? No! Your oppression planted ‘em in America. They fled from your tyranny to a then uncultivated and unhospitable country where they exposed themselves to almost all the hardships to which human nature is liable, and among others to the cruelties of a savage foe, the most subtle, and I take upon me to say, the most formidable of any people upon the face of God’s earth. …’
I’m sure Native Canadian will appreciate that description. In response, he might even form an opinion that colonies shouldn’t have rebelled after all, they should have stayed loyal to the Crown … oh, wait.
I agree with the rest of your posting though. Also of course I understand that words you quoted aren’t your words.
Stephen: Thank you for posting this magnificent work of Mr. Bopp and his associates. It’s readable even for lay people like me. If the judge doesn’t “get it” this time he/she will be guilty of willful lack of logic if not downright criminal negligence. In addition, your own statement in Appendix A is one of the most powerful indictments against the US government that I have seen, and there have been a lot! Thank you for fighting so hard despite such great cost.
@Embee,
Unfortunately, it was the stupid font…it didn’t provide a capital L. I may have to use a different bloody letter font.
We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, l̶i̶b̶e̶r̶t̶y̶,̶ ̶a̶n̶d̶ ̶t̶h̶e̶ ̶p̶u̶r̶s̶u̶i̶t̶ ̶o̶f̶ ̶h̶a̶p̶p̶i̶n̶e̶s̶s̶ ~ Thomas Jefferson.
I guess things really suck in the United States of Amnesia.
@USCitizenAbroad,
Gave a scathing comment you might like to ‘like’.
“We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, l̶i̶b̶e̶r̶t̶y̶,̶ ̶a̶n̶d̶ ̶t̶h̶e̶ ̶p̶u̶r̶s̶u̶i̶t̶ ̶o̶f̶ ̶h̶a̶p̶p̶i̶n̶e̶s̶s̶ ~ Thomas Jefferson.”
Life was already crossed out before drones, but more so after them.
@ The_Animal
I see you got an “L” out of the new font … nice. 😉
Yep. Thanks. I don’t know, but I’ll keep percolating…on this FATCA crap and occasionally blowing my top with a few articles.
Dear Dr. Kish;
My own loss of USC is forever tinged with sadness and disappointment. Had events over a decade ago tilted ever so slightly in a different direction I would not have relinquished my USC. My reasons were correct, I have been vindicated and yet I paid a high price.
In reading your statement on the appeal document also considering your prior blog posting on the matter, I was profoundly moved that you took the deliberate and respectful action of falling on your sword. In doing so you have shown great bravery and selfless love to your “neighbor” as this action is indeed well beyond protecting your wife. The otherwise meek and mild mannered academic has roared and that roar has now been heard around the world. Dr. Kish, you have the roar of the lion.
Reading between the lines I can see that State could now deny your renunciation as either being under duress (which it was) or that you could be persecuted for a “tax motivated” renunciation. You have freely provided the means for them to harm you which I have no doubt you are well aware of.
I literally relinquished and then faded away whilst you on the other hand are making all widely known in the public domain in the court of law.
In the tapestry of life you probably envisaged declining academic commitments and maybe a last hurrah with writing a professional work for publication. You have thrown that peace aside and on behalf of my children who you do not know this father gives thanks to you.
Victory is now inevitable and I know this now based on the strength of your character being ready and willing to risk all. You have planted a flag on a hill and are willing to die on that hill defending that flag.
I do not know when victory will occur or how it will occur but on this matter it will be forever noted that the seed for that victory was planted by Stephen Kish in the month of August in the year 2016.
Respectfully,
George
George,
It is great to see you back with your comment to Dr. Stephen Kish. Thanks for that.
Yes, Stephen, is a very brave man, working on behalf of all of us, as well as his Canadian lovely wife who has had to live in the shadow of her USC husband’s USC taxation consequences for their family.
‘Reading between the lines I can see that State could now deny your renunciation as either being under duress (which it was)’
Renunciation can be denied when it’s under duress caused by another person, but duress caused by government doesn’t seem to cause denial.
‘or that you could be persecuted for a “tax motivated” renunciation.’
Persection can occur if the renunciation is motivated by intention to REDUCE taxes. For me my US taxes went up (as expected) so persecution should not occur, but sure I also wonder if it will.
Perhaps something useful in this new paper;
Avi-Yonah, Reuven S. and Mazzoni, Gianluca, Taxation and Human Rights: A Delicate Balance (September 5, 2016). Available at SSRN: http://ssrn.com/abstract=2834883 or http://dx.doi.org/10.2139/ssrn.2834883
Don’t know the best place to post this – monitors feel free to move post around.
Here’s a good opportunity to connect with so-called “US-persons in Canada” and possibly promote awareness of the FATCA IGA lawsuit!
Tonight, Sept 26, Democrats Abroad is holding a Clinton–Trump Debate viewing event.
It’s at Paupers Pub, 539 Bloor Street West (just east of Bathurst St.)
Admission is $5 and it starts at 7:00pm
Disclaimer: I’m no kind of “Democrat Abroad”… having relinquished US citizenship I don’t have a horse in the current Presidential race. But it could be an opportunity to connect with fellow ex-pats and spread the word … maybe have a few laughs as well …
“Tonight, Sept 26, Democrats Abroad is holding a Clinton–Trump Debate viewing event.”
Criminal v. criminal. What weapons will they use? I’ve heard the pen is mightier than the sword, and they both deserve to serve long sentences in the pen, but the sword would be more satisfying, especially if both of them win.
“Admission is $5”
$5 for each crime they admit to? Now there’s a way to pay off the national debt.
Thank you, Dr Kish.
Link courtesy of Keith Redmond https://www.facebook.com/groups/AmericanExpatriates/permalink/731378557028219/ ,
to audio of most recent 16-3539 Mark Crawford v Department of Treasury et al , United States Court of Appeal, Sixth Circuit, appeal arguing amended claim that plaintiffs have standing;
“Audio: James Bopp Jr. lead litigator of Republicans Overseas presented his oral argument against FATCA in the 6th Circuit on Tuesday.”
http://ow.ly/lHMF308oBlC
http://www.opn.ca6.uscourts.gov/internet/court_audio/aud2.php?link=recent/01-24-2017%20-%20Tuesday/16-3539%20Mark%20Crawford%20v%20Department%20of%20Treasury%20et%20al.mp3&name=16-3539%20Mark%20Crawford%20v%20Department%20of%20Treasury%20et%20al