Last week a U.S. appeals court confirmed an earlier judgment that the plaintiffs “lack standing” in their case against FATCA. I thought this news deserved its own post.
In response, Republicans Overseas has declared its firm intentions to prosecute this matter all the way to the Supreme court.
MuzzledNoMore – thanks for making this into its own post. Previous discussion of the court decision can be found in this thread: http://isaacbrocksociety.ca/media-and-blog-articles-open-for-comments-part-4-of-4/comment-page-43/#comment-7966880 including a very informative comment about standing by Calgary411 (http://isaacbrocksociety.ca/media-and-blog-articles-open-for-comments-part-4-of-4/comment-page-43/#comment-7967512).
Uptick, Like, RT!
RA Press Release
Republican Overseas Action, Inc. (ROA) will take the fight against FATCA to the United States Supreme Court
https://twitter.com/search?src=typd&q=%23FATCA&lang=en
https://twitter.com/kredmond_global/status/899708280011993088
By ruling that a person didn’t have standing, they may go up the scale and get a ruling that they truly don’t have standing, by the SCOTUS or that they do. It would never have gotten this far had the IRS had a chance to cave without an appeals court ever seeing the case.
Let’s hope the court rules that the litigant has standing and agrees to hear arguments against citizen based taxation and whether the tax code is too vague for the average citizen to understand. This could be the crack in the armor we have stumbled onto, but don’t hold your breath. There will be all kinds of pressure behind the scenes for a ruling the does not indeed have standing.
Karen: many thanks for including in your comment the links to past discussion, particularly Calgary’s information!
The US tax code is too complicated for hugely famous Americans to understand.
https://twitter.com/rumsfeldoffice/status/456156891534483456?lang=en
US courts do not care.
Does the Supreme Court have more integrity that the other courts?
@Polly: Not at all. The Supreme Court is increasingly a political tool based more on the bias of its members than on strict interpretation of the law. Why else would Supreme Court appointments be such a hotbed issue? But this could be to our advantage. They have not been shy of reversing decisions by the various Courts of Appeal and other Federal courts. If they can be convinced to take a broader look at the issues of FATCA, maybe they’ll be less inclined to focus on a nitpicky technicality of what constitutes ‘standing’.
Or not. Honestly, I’m not hopeful. The Supreme Court justices are old and crotchety, and US citizens abroad are still weird specimens they might not understand.
If someone could explain to the Supreme Court that non-residents of the US are alien races who don’t understand Anglo-Saxon principles, the Supreme Court will turn non-residents into non-citizen nationals and the battle will be won.
If the case reaches the Supreme Court, will SCOTUS hear the case against FATCA, and rule on it? Will there finally be a result?
Or will the Supreme Court only rule on the standing issue, following which (if it’s ruled that the plaintiffs do have standing), the case would have to be taken back to the lower courts for the case against FATCA to finally be heard?
Cause for optimism?
The Sixth Circuit Is the Most Reversed Appeals Court, If You Care
http://blogs.findlaw.com/sixth_circuit/2017/02/the-sixth-circuit-is-the-most-reversed-appeals-court-if-you-care.html
From the above,
“First, when the Supreme Court takes up a case, reversal is the norm. The Supreme Court is a court of discretionary review — it does not take up cases that it believes were rightly decided. Thus, the Court sides with petitioners about 70 percent of the time. Second, the Court reviews only a tiny handful of decisions made by the Sixth or the Ninth or any other court. Those subsequent reversals are outliers much more than indications of the court’s overall performance.”
More about the case selection process here:
http://litigation.findlaw.com/legal-system/how-does-the-u-s-supreme-court-decide-whether-to-hear-a-case.html
“If you decide to appeal to the Supreme Court at this stage, the next step is to prepare a “petition for certiorari.” This is the document the Court will read in order to decide whether to hear a case. In that document, you will include a history of the case, the basic facts, and the important legal issues that your case presents. Your opponent will also have a chance to file a response, and other interested parties may file briefs in support or against the petition. Your file will then go to a pool of Supreme Court clerks, who will review all of the documents, summarize them for the justices, and include a recommendation on whether to take the case. The justices then make a final decision. If they decide to hear a case, they will issue a “writ of certiorari.”…”
From listening to the audio from the hearing, it sounds like the issue that might get the Supreme Court to consider the case, would be the one that Mr Bopp keeps disagreeing with the government over: to have standing in a pre-enforcement challenge, does a plaintiff have to demonstrate likely harm from FATCA, or does a plaintiff have to demonstrate likely harm to their constitutional rights.
Bopp says that to have standing, they only have to show that they would suffer harm if FATCA were enforced on them; the government says that to have standing, they have to show FATCA would harm their constitutional rights if it were enforced on them.
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
Sad and disappointing developments, but not surprising. All roads lead to renunciation. The longer a person waits the higher the risk that, at some point, renouncing will no longer even be an option. I spoke with several Washington lawyers about this and they are all of the opinion that FATCA will never be repealed and that citizen based taxation has been around for so long, since the Civil War, that it is seen and accepted as being an integral and unmovable part of the the US tax code. Trump and his tax reform couldn’t give a damn about personal taxation issues. They are only interested, and barely, in corporate taxation, as that’s where the money for their next campaign is. The system is broken and anybody who actually believes that there is hope in the system to remedy this wrong, will be extremely disappointed. ALL ROADS LEAD TO RENUNCIATION!
It’s not over till it’s over.
Up till now it’s all been prelude. It’s the Supreme Court that matters. If it gets there.
Yuval, I have taken the attitude that if the USA wants CBT……then LETS GO ALL THE WAY, I am pushing on this side of the pond in my country and a few other for reciprocity in CBT.
Ireland, Greece, the UK and others need to enact and enforce CBT on its citizens in the USA.
@ George
Do you really want to impose all the agony, suffering and persecution the US has imposed on its expats on fellow Brits etc living a simple working life or retirement abroad?
Do you really think the ‘exceptional’ USA would wake up and smell the coffee?
Resident based taxation has to be the norm everywhere otherwise life would become impossible for millions of duals and mixed national families.
WOULD you really wish this misery on others?!
I bet they hardly know what FATCA is and I doubt they understand much about what citizenship-based taxation is. The last place I would go for an opinion on this are the lawyers and members of the compliance community that make a living off this stuff.
What’s important it to keep your eyes on the goal and simply move on to the next step. The best way to look at the result from the 6th circuit is this:
Since the decision has finally been issued, Bopp and his team are one step closer to victory!
There is NO value in having any other thoughts.
Bopp plays to win, no doubt.
The lawyers that I spoke with are actually good acquaintances and they all are quite sympathetic to the cause that we are fighting here and they are not from the compliance industry. They just know tax law quite well and also understand the mindset of the Washington establishment politicians and are well aware that the U.S. is a deeply provincial and insular nation. It all starts there. The prevailing attitude is STILL that any citizen, who has the right to live in their imagined paradise, who chooses to leave and live elsewhere, has to be strange, dangerous and anti-American at best and a cheat, a scoundrel or on the run at worst. So, FATCA, CBT and all of the hardships that come with it don’t phase them one bit. Deep down they actually believe that those people are deserving of all of this. That’s why it will remain on the back burner and that’s why it is highly unlikely that reform will be a reality anytime soon. Sure the country is disconnected from reality, but not only concerning taxes. ALL ROADS LEAD TO RENUNCIATION!
Agree completely regardless of the results of tax reform, the Bopp lawsuit, etc.
I actually agree with what Original George said about a “reciprocal” tax on a country’s citizens who live in the US at the same rate that a US citizen living in their country would have to pay (RBT would still apply for citizens living in RBT countries). Teach the US a lesson on what it’s like to have local monies siphoned via their residents being taxed by a foreign country.
I’d also apply reciprocity to the renunciation/relinquishment fee when one of the other country’s citizens lives in the US.
@Kelly
“I actually agree with what Original George said about a “reciprocal” tax on a country’s citizens who live in the US at the same rate that a US citizen living in their country would have to pay ”
Two wrongs don’t make a right.
Surely the ones who would suffer are the ordinary folk such as we were/are, and the ones who would benefit would be the compliance industry.
The US Gov would lose very little it would not make an impact.
“If the case reaches the Supreme Court, will SCOTUS hear the case against FATCA, and rule on it?”
Normally there’s around a 0.1% chance that the Supreme Court will grant certiorari, to hear a case and rule on it. If the US (government) is the party petitioning for cert, the chances increase to around 30%. Here even though one of the plaintiffs is a politician he isn’t the government so the chances might be 0.3% instead of 0.1% (wild-donkeyed guess by this non-lawyer here) but certainly not 30%.
“Will there finally be a result?”
If there’s a 0.3% chance that the result will come from the Supreme Court then there’s a 99.7% chance that the result has already come from the circuit court, so either way there will be a result.
Oh wait, right, the result will only be that the plaintiffs lack standing, and FATCA will stand because no human stands.
“Yuval, I have taken the attitude that if the USA wants CBT……then LETS GO ALL THE WAY, I am pushing on this side of the pond in my country and a few other for reciprocity in CBT.”
Bad move. The US abuses human rights of the US’s diaspora therefore you want the UK to abuse the human rights of the UK’s diaspora? Come on now. The US will not care if the UK abuses the human rights of the UK’s diaspora. Or they might care enough to sponsor a UN resolution like they did about Eritrea abusing Eritrea’s diaspora, but they’re not going to do the kind of caring that would figure out that they should stop.
If you can find a way to teach the US a lesson, please do. But abusing your own countrymen isn’t the way to do it.
Heidi beat me to it. I can’t bring myself to remain silent though.
If my thoughts seem a bit cruel to the individual, how about whatever money is collected via the “CBT reciprocity tax” then said taxpayer can later reclaim the money outside of the US to be spent anywhere but there (no statute of limitations so if they want to move out of the US when they retire then the money will still be waiting for them). The idea is to remove money from the US economy just like the US removes from other countries.