See the U.S. Constitutional analysis of FATCA article Neill has found.
Any comments?
From the document:
“…The FATCA reporting requirements arguably resemble that of a general search warrant. It was enacted in order to curb tax evasion of U.S. citizens using foreign accounts.
However, while the information reported can be useful to the IRS in confirming the income reported by individuals, there are no particularized suspicions in collecting this information from every foreign U.S. account.
Doing so assumes that every U.S. citizen with a foreign account is a “crook” evading his taxes.201
Additionally, the searches at hand contain the potential for abuse. This is due to the “access to this information without invocation of the judicial process.”202
The scrutiny of a neutral magistrate helps to balance societal and individual interests in the collection of the information at hand.203
Without a warrant issued through the judicial process, the search is an unreasonable violation of the individual account holders’ Fourth Amendment rights…”
Student U.S. Constitutional analysis of FATCA
I came to that conclusion 5 years ago on these pages.
http://isaacbrocksociety.ca/2011/12/22/fbar-fatca-form-8938-filing-requirements-circumvent-the-4th-amendment-and-are-thus-equal-to-the-issuing-of-a-general-warrant/
The last sentence tells it all as many have said over the years, supported by the three posts in response above.
We all know for a fact that it violates the US Constitution. AS litigated in the US by the ongoing lawsuit there and as testified to in the hearing chaired by Mark Meadows recently.
How many ways must it be emphasized before they get it and restore rights and freedom?
( THEY get it. “they” intend to continue to violate the Constitution as long as they can get away with it and the only thing that will stop it is US !!)
As always, too much talk. Not enough Judges who are actually committed to upholding the Constitution, which their oath requires. Not enough Judges who are actually committed to upholding the Charter of Rights and Freedoms which THEIR oaths require. If any of them did what their oaths demand they do we would not still be fighting this war, now almost twice as long as WWll !!!
“A potential solution to ease this problem is to remove the automatic reporting requirement of FFIs. This will bring FATCA closer to the scope of California Bankers by requiring FFIS to simply maintain the records.207 The reporting requirements should still be implemented on the individual level. However, the IRS’s receipt of the records from FFIs could be left to the “existing legal process” by requiring the IRS to utilize search warrants for specific accounts.208 The IRS would be able to cross-check the information reported by individuals with the account information held by the FFIS, while allowing for a neutral magistrate to properly balance the interests of society and the individual on a case-by-case basis. Additionally, this will require a more particularized suspicion before the IRS can receive the information.”
Hardly a solution. If left to the author’s proposed remedy, the IRS would not have anything it wouldn’t have without FATCA, because at least in Canada the bank is only required to report the customer’s year end bank balance, not the highest bank balance.
“…the account balance or value at the end of the relevant calendar year or appropriate reporting period.”
https://www.ctf.ca/ctfweb/EN/Newsletters/Canadian_Tax_Focus/2014/3/140303.aspx
Totally agree, and why did not one country when under threat of financial sanctions, counter the pressure issued by the Treasury Department (Acing on it’s own, illegally signing these IGA’s {Intergovernmental Agreements} without the review and approval of the US Senate,) with a compromise offer to only allow 30% withholding on those accounts identified as US Citizens, exclusively, not dual citizens, not green card holders and not threatening the entire banking industry with 30% withholding!
I appreciate the effort of the young author of this paper. She is on our side even though the “solution” she offers remains just as discriminatory as the current situation.
And don’t you just love this one from page 13?: “It has been noted that IRS officials would consider the withholding requirement a success even if they do not collect ‘a dollar of withholding tax,’ as long as it ‘helps to establish taxpayer trust in fairness of the system.'”
Establish “taxpayer” trust? FATCA has put an END to “taxpayer” trust!
FuriousAC: Thanks for pointing out that our war against FATCA is, so far, double the length of WWII!! Good observation! Along the same lines the battle against CBT has surpassed the length of the 13th/14th centuries’ Hundred Years’ War!!
@FuriousAC, re; “…( THEY get it. “they” intend to continue to violate the Constitution as long as they can get away with it and the only thing that will stop it is US !!)…”
I agree with you. I too think that they are knowingly violating the Constitution, just as I believe that the Canadian government is knowingly violating our rights re the IGA. I don’t think I am being illogical or overly cynical to believe that as you say, “they’ know that FATCA is unconstitutional in the US (and that likewise the Canadian IGA likely offends the Canadian Charter of Rights and our constitution) and consider it unlikely that individuals would be able to get together, crowd fund the money to pay lawyers with expertise in the relevant areas of law and get a challenge to FATCA to courts – both in individual IGA signatory countries and inside the US itself.
As long as “they” continue to send FATCA data from IGA countries ( ex. http://www.cbc.ca/news/politics/taxes-internal-revenue-service-fatca-united-states-1.3954789 ) and the US continues to collect it, “they ” have more than nothing, and can continue to collect until a court rules that they cannot. The delays inherent in legal challenges – both within the US and those without buy both government “they”s more time and allow them to amass more data.
“They” no doubt are counting on ab/using “their” ability to tap into the bottomless pool of tax revenues (actually OUR own taxpayer dollars) to stymie any challenges and at the very least to make the challenges time consuming and costly for anyone opposing “them”. They have access to our tax dollars, while any opposition to FATCA only has whatever they can amass via fundraising and donations.
There has been nothing but obfuscation from the CON and now gLIB Canadian governments who’ve brought us FATCA via the IGA.
That is why we never received actual transparency and actual *answers of substance from the Harper Cons then (*see http://blog.tedhsu.ca/wp-content/uploads/2014/01/Q121-21.pdf?189db0 or from the gLibs now to the very good questions asked by some MPs;
ex.
NDP MP Hoang Mai
https://openparliament.ca/debates/2012/3/14/hoang-mai-1/
https://isaacbrocksociety.files.wordpress.com/2012/03/ba481782.pdf
Liberal MP Ted Hsu
https://openparliament.ca/debates/2014/1/27/ted-hsu-2/
and,
( ironically because of his later about face AFTER the Sunny gLibs were elected http://maplesandbox.ca/2016/brison-garneau-endorse-cra-doing-dirty-work-of-fatca/ )
Liberal MP Brison asked very astute questions BEFORE the election, ex.
https://openparliament.ca/debates/2014/1/27/scott-brison-2/
http://www.canadianbusiness.com/blogs-and-comment/ted-hsu-and-scott-brison-have-questions-about-the-coming-u-s-foreign-account-crackdown-good-questions/ and demonstrated his mastery of the issue in skillful questions and analysis pre-IGA legislation passing (ex. https://openparliament.ca/debates/2014/6/11/scott-brison-4/ https://openparliament.ca/search/?q=brison%20AND%20fatca%20Person%3A%20%22Scott%20Brison%22&sort=date+desc )
(Government answer to Brison’s questions were archived here, but dropbox link no longer works http://taxpol.blogspot.ca/2014/01/canadian-government-responds-to-fatca.html . Presumably anyone who knows how to locate the answers in the government records can use the question #, etc. to. look it up)
I would note that despite the very astute questions asked by MPs Mai, Hsu, and Brison, we have had no additional answers or information offered by the Trudeau government after they took power from the Cons and had access to the information the Cons refused to divulge. The Liberal government in power now has the information that would answer the questions posed by Mai, Hsu and Brison, but the Liberals in power now have still not given the Canadian public any more information than the Cons did, despite the statement by Minister of National Revenue Lebouthillier saying (after the election) before the Information & Ethics Committee on April 14th, 2016; “…We would have taken the time to discuss it in a much more open and transparent manner in order to provide parliamentarians and Canadians with all the information, as is right and proper….”.
https://openparliament.ca/committees/ethics/42-1/8/diane-lebouthillier-7/ and “After we had obtained all the information about FATCA, we clearly would still have entered into agreements with the United States. FATCA is an American act. The position that was taken at the time really allowed the Canadian banking system, and Canadians with dual citizenship, to be protected.” https://openparliament.ca/committees/ethics/42-1/8/diane-lebouthillier-8/ and, “…We would have worked differently by involving all parliamentarians in open and transparent discussions and by providing information that was fair and equitable for all Canadians. ” https://openparliament.ca/committees/ethics/42-1/8/diane-lebouthillier-10/
Evidence of meeting #8 for Access to Information, Privacy and Ethics in the 42nd Parliament, 1st Session
Strangely, despite continuing to press the honest ordinary individual taxpaying Canadians who are ADCS plaintiffs into divulging more and more personal and financial information (ex. http://isaacbrocksociety.ca/2017/08/03/august-3-2017-canadian-fatca-iga-legislation-federal-court-lawsuit-update-plaintiffs-have-complied-with-court-order-examination-of-plaintiffs-to-begin/ ), this current government has still not shared with Canadians any of the additional information that Minister Lebouthillier alludes to having come into possession of from the previous Con government, including the information and answers that the MPs Mai, Hsu and Brison originally asked for and did not receive (much of which was redacted or in at least one instance was claimed privileged).
Clearly transparency is not a priority for this government vis a vis the Canadians they are sworn to serve and protect.
If the IGA is such a great deal, then why doesn’t MP Lebouthillier and others in the Liberal government share that and other related information with the plaintiffs and all other Canadians? See ex. her answer to one of her own party’s MPs;
8:55 a.m.
Liberal
Joël Lightbound Louis-Hébert, QC
“My last question deals with the Foreign Account Tax Compliance Act, or FATCA.
Madam Minister, you told us about the reciprocity between the Americans and the Canadians. How many documents do you estimate we could receive from the Americans in this regard? What kind of reciprocity are you talking about? I believe this was one of the matters raised when FATCA was negotiated, because it was not perhaps very reciprocal. I would like to hear your opinion.”
8:55 a.m.
Liberal
Diane Lebouthillier Gaspésie—Les-Îles-de-la-Madeleine, QC
“Currently, that information cannot be publicly released because it was obtained under a treaty. It is the prerogative of the country sending the information to authorize public release of the information.”
https://openparliament.ca/committees/ethics/42-1/8/diane-lebouthillier-3/
If the FATCA IGAs are so very constitutional in both the IGA signatory country (ex. Canada) AND the US, then why can’t we get that information from either Canada or the US?
@MuzzledNoMore, thanks for pointing out the fallacy of the statement by the IRS;
“..IRS officials would consider the withholding requirement a success even if they do not collect ‘a dollar of withholding tax,’ as long as it ‘helps to establish taxpayer trust in fairness of the system.’””
The IRS Taxpayer Advocate provides ample reasons in her reports to Congress re FATCA, (and FBAR and the IRS conduct of the OVD programs) to cast significant doubt on any claims by the IRS in regards to enhanced taxpayer trust and fairness of the system.
Amen, this and previous and future governments will tram on your 14th amendment and will violate all ten if we let them. the only thing you have is the vote….Send the rich Bastards home. How do I know they are rich. The all take Campaign contributions to keep the current tax code nad never change it from a violation of the 2nd section of the constitution only after the lied to get the 16th amendment railroaded thru.
The author of this paper says; “……FATCA generalizes all Americans with foreign accounts and imposes
requirements that infringe upon the constitutional rights of U.S. citizens…..”
Our local legal accounts filled with our local legal post-tax wages by our local country of residence are assets that were generated, saved and sited locally, with NO economic connection to the US – and our only ‘crime’ is and was a US birthplace or US parent/s.
FATCA is unconstitutional in the US, and deliberately designed to be extortionate and compel the rest of the world to comply in fear, and our local government IGA signatories are accessories , aiding and abetting a foreign nation to extraterritorially claim us as tax and data subjects.
The US managed to deprive those it claims as citizens ‘abroad’ of both their US and their local legal rights by proxy.
I too have posted here the same thoughts expressed in the segment posted on webpage. No time to read the whole thing though.
I will say thst I have read multiple reports of teachers in law schools saying that study of the Constitution is no longer of value as the US has moved on from that document. Judges are in record as saying that the Constitution should not be used to decide court cases. If these are true… well, you can draw your own conclusions.
Badger: I salute your comment about “they” and “them”. I no longer feel like a full partner in Canadian society because of what “they” (our Canadian legislators) have written in our law books.
The U.S. Supreme court would equate going into your personal account as the same as an illegal search.
“The U.S. Supreme court would equate going into your personal account as the same as an illegal search.”
How do we get it before the US Supreme Court before either me npbank account is closed or all my financial data is made avsilable to any and every yahoo who would like to have it?
“The U.S. Supreme court would equate going into your personal account as the same as an illegal search.”
In other words, an action which used to be illegal in a previous millennium when the US had a constitution, but is now standard operating practice and not punishable.
“How do we get it before the US Supreme Court before either me npbank account is closed”
Use a timewarp to make the bank operate really really slowly? But it wouldn’t matter anyway, in view of your previous question.
“or all my financial data is made avsilable to any and every yahoo who would like to have it?”
Hey, I resent that. I’m a customer of yahoo. I pay monthly for the ADSL internet connection that yahoo brings to my home. I know yahoo. And let me tell you boy, there’s no way yahoo would ever be competent enough to retrieve my financial data or anything else I might want to search for. Now if you’d complained about all your financial data being available to every google who would like to have it, you’d be on to something.
Meanwhile, surely the NSA knows all my financial data too. The NSA must have known that Ameritrade really deducted the withholding that they reported on Form 1099, the NSA must have known that my Form 1040 wasn’t fraudulent, and the NSA must have known that IRS data entry clerk Monica Hernandez and/or cohorts embezzled it. So why do the IRS, Department of Justice, and US courts still pretend they don’t know it? Oh wait. For the past few months I’ve been guessing that maybe the embezzlers’ ringleaders were in the Department of Justice, but maybe the ringleaders are in the NSA?
““or all my financial data is made avsilable to any and every yahoo who would like to have it?”
Hey, I resent that. I’m a customer of yahoo. I pay monthly for the ADSL internet connection that yahoo brings to my home. I know yahoo. And let me tell you boy, there’s no way yahoo would ever be competent enough to retrieve my financial data or anything else I might want to search for. Now if you’d complained about all your financial data being available to every google who would like to have it, you’d be on to something.”
Ha,ha! Thanks.
I did wonder if using “every yahoo” would elicit a response, but that was good.
Assuming that FATCA is a 4th amendment violation then the “USA via the IGA” is forcing other countries to do to its resident/citizens what is probably illegal for the U.S. Government to do to its own resident citizens.
I am reminded of the U.S. outsourcing the torture of terrorists to other countries because it would be illegal for the U.S. to engage in this kind of torture inside the United States.
Google “U.S. flying terrorists outside of the USA for torture” and see what comes up.
See for example the following:
https://en.wikipedia.org/wiki/Extraordinary_rendition
http://www.newyorker.com/magazine/2005/02/14/outsourcing-torture
(by Jane Mayer who I believe was the author of “Dark Money”.
Does anybody see an analogy between this and the imposition of FATCA on the world?
Subordinating criminal activity is an illegal act, regardless of what that act is.
If it appears the IRS will lose they stay aggressive and try to get the taxpayer to settle. The one thing the IRS hates is the idea they will lose in an appeals court case. That loss would make it into the case law books and every case pending and not yet filed will be lost. They sense a loss they fold and live to fight another day.
And yet, the first stages of the two cases in the States that I know of, the judge threw out stating the plantiffs did not have grounds to challenge.
Not refuting what you say, just wondering how we actually get it to the Supreme Court and do so before a win there is meaningless to most, they having already lost everything due to this bad “law”.
The IRS folds if it looks like they would win a case in the appeals court. You can’t appeal a case you’ve won, therefore staying out of the High court.
Have you ever heard of a Supreme Court tax case? heck no you haven’t, there are several reasons why. The Supreme’s have ruled in many cases that if the common man cannot understand a law, then it is void for vagueness and the whole 77,000 pages gets voided. By staying out of the High court they keep the money rolling in and they keep scaring people with their power.
To Clarify. The IRS wants to win in a lower court, but stay out of the higher court where case law is made. The Entire U.S. Tax code would have been voided for Vagueness if it ever made it to a high court.
Which means, it dies not matter if FATCA violates the 4th admendment or any other law as we can never have our day in court, in the court that has the power to actually end this.