OCTOBER 24, 2017 FATCA IGA legislation/FATCA litigation update.
Canadian (Alliance for the Defense of Canadian Sovereignty [ADCS] is the “client”) FATCA IGA legislation lawsuit:
We are suing (since 2014) the Government of Canada (specifically Justin Trudeau’s Attorney General and Revenue Minister), in Federal Court for rounding up Canadians having a U.S. taint and turning them over to a foreign government. We argue that this violates Canada’s sovereignty as an independent nation and its Charter of Rights that is meant to protect all Canadians.
As to next steps, it now appears likely that most, if not all, of our brave lay witnesses, who provided written affidavits demonstrating harm, will NOT be examined by the Government lawyers. This is good news as it means that we will get to trial “sooner”. We do expect, however, that our expert witnesses will be cross-examined by Government next.
We have not yet received all of Government’s affidavits (e.g., from their experts). When we do, our legal team will need to decide whether they need to cross examine any of the affiants. We are moving forward but I am sorry but I cannot give you a time frame on this.
It is the “job” of the Case Management Judge, who supervises our case, to keep our litigation “moving”.
U.S. Republicans Overseas (RO, the client) FATCA, IGA, and FBAR lawsuit:
Mark Crawford, Senator Rand Paul, Roger Johnson, Daniel Kuettel, Stephen Kish, Donna-Lane Nelson, and Marc Zell are Plaintiffs, Republicans Overseas is the client. The lawsuit is in the U.S. Court of Appeals for the Sixth Circuit.
From the petition: “This case challenges FATCA, the IGAs unilaterally negotiated by the U.S. Department of the Treasury (“Treasury Department”) to supplant FATCA in signatory countries, and the Report of Foreign Bank and Financial Accounts (“FBAR”) ad- ministered by the U.S. Financial Crimes Enforcement Network. These laws and agreements impose unique and discriminatory burdens on U.S. citizens living and working abroad.”
U.S. Government lawyers have been arguing, so far successfully, that none of the Plaintiffs have the necessary “standing” to go to trial. The RO attorney however, argues in part that a “certain” threat of harm/prosecution is not necessary, but that a “credible” threat of prosecution should suffice for standing.
On August 30, 2017, Plaintiffs filed a petition for rehearing to the 6th Circuit Court of Appeals, arguing that the original panel’s Opinion conflicted with two decisions of the United States Supreme Court. Plaintiffs asked that the original panel reconsider the case under correct standards, and absent such action by the original panel, we asked that the full Court consider the case en banc to establish and apply standing rules compliant with existing Supreme Court decisions.
The 6th Circuit has now denied rehearing. Plaintiffs’ next step will be to file (which they will) a certiorari petition to the United States Supreme Court, asking them to review the decision of the lower court on standing. This petition is due on Monday, December 25, 2017.
— I mention the U.S. negative court decisions on Plaintiff standing as I personally suspect that this general issue will be brought up by Government attorneys in the Canadian FATCA IGA legislation lawsuit — Mr. Trudeau’s Ministers arguing that there has been no “FATCA harm” caused to any Canadian. I personally dispute this as Government admits that the Canadian FATCA IGA legislation has directly resulted in over 100,000 Canadians (now up to 500,000?) being turned over to a foreign country — a clear harm that is a Charter and Constitutional violation.
Alliance for the Defeat of Citizenship Taxation (ADCT) litigation efforts in United States:
An aim of ADCT is to defeat by litigation in U.S. court citizenship-based taxation and related laws that we believe, in part, violate the U.S. Constitution. ADCT is not moving forward with any lawsuit in U.S. Court until the US tax reform legislation is passed by Congress (probably in 2018) and our legal claims can be clarified in light of that legislation (or absence of legislation) and established at that time as being reasonable to pursue.
FATCA litigation updates
Thank you for the update, Stephen. I guess the fact that the Canadian lawsuit is still progressing (even at glacial speed) is great news.
Wouldn’t the Canadian government using rulings that happen in US courts to argue the validity of Canadian law be a blatant surrender of Canadian sovereignty? One doesn’t prove they are innocent of something by committing the same crime.
Thank you for the update, Stephen. I’m particularly interested to learn that ADCT has a plan should the current tax reform effort not provide us the relief we seek.
With litigations under way or in the planning in Canada, the United States and France, I really cannot see how citizenship-based taxation (along with its enforcement instruments) could carry on in the near future. The reactions to all of this are slowly growing…
Great point @Bubblebustin, re;
“Wouldn’t the Canadian government using rulings that happen in US courts to argue the validity of Canadian law be a blatant surrender of Canadian sovereignty? One doesn’t prove they are innocent of something by committing the same crime.”
Maybe that’s the next step in ‘harmonization’ with the US. ‘Beyond the Border’ means that the US is allowed to operate ‘beyond’ its borders, with the collusion of the Canadian government.
Maybe they’ll point to Eritrea as their comparable next.
As to harm caused to Canadians by the FATCA IGA, what about the portion of our local domestic taxpayer revenues gone to satisfy the extortionate extraterritorial demands of a foreign state? We remit our Canadian taxes and the CRA is wasting Canadian dollars on a policy initiative that brings Canada no additional benefit it didn’t have before, subverts our own Charter of Rights and constitution and sends Canadian personal and financial data to a foreign country who won’t reciprocate, and does it only because the foreign nation demands it at the point of an economic gun.
Plus the CRA can’t or won’t say how much of the data was sent in error – belonging to people and accounts that aren’t even part of the IGA.
Isn’t the first duty of the Canadian government to Canadians? Looking more and more like a threadbare sham of national sovereignty and autonomy every day.
And it is obvious how little respect the US has for Canada. They sent us another ‘bundler’ fundraiser. And this one is a global warming apologist http://www.cbc.ca/news/politics/us-ambassador-knight-craft-1.4366936
married to the “…billionaire president of coal giant Alliance Resource Partners,…” http://www.allgov.com/news/top-stories/united-states-ambassador-to-canada-who-is-kelly-knight-craft-170814?news=860275
who issued the usual vacuous pap about the Canada US relationship.
OI bet if it was Iran demanding all the financial information on our Jewish population it would be a different story.
Thank you Stephen.