Here is the Memorandum of Argument of our Plaintiffs (Gwen and Kazia) for our FATCA IGA legislation lawsuit that was submitted on October 3, 2018 to Canada’s Federal Court. [Note that text is limited to 30 pages.]
The Memorandum can be found HERE.
The gist of our argument (page 12) is that the FATCA IGA legislation is inapplicable to Provincially regulated institutions and violates Sections 7, 8, and 15 of Canada’s Charter of Rights.
Some Excerpts:
— “The Impugned Provisions trench upon the core of the provincial power over property and civil rights because they constitute the regulation of a particular industry – the financial industry – and the regulation of this particular industry is an exercise of the provinces’ core powers over property and civil rights.40″
—“…although some US Persons in Canada have obligations under US law to report their Accountholder Information to the IRS, they generally do not have an obligation to report this information to Canada.”
…“Canada admits that it does not know how many account records have been shared with the IRS which are associated with individuals who are not US Persons.49…”
—“That the Impugned Provisions authorize warrantless searches without any notice or means of judicial review of any kind is undisputed and fatal to their reasonableness.”
—“But Canada has admitted that it does not oversee – meaningfully or at all – the conduct of Canadian FIs in determining whose Accountholder Information will be reported to both Canada and the United States.”
—“…it is impossible for Canada to establish that its own use for domestic tax compliance purposes of Accountholder Information obtained pursuant to the Impugned Provisions (to which it admits63) is reasonable because Canada’s use of that information is unrelated to the objective underlying the Impugned Provisions.”
— “The plaintiffs and other reasonable hypothetical individuals have a reasonable expectation of privacy in their Accountholder Information. Canadian courts have observed that personal financial information prima facie attracts a reasonable expectation of privacy, and that individuals can reasonably expect their financial institutions to keep their information confidential.
—“Canada cannot justify the s. 8 infringement under s. 1 of the Charter because it cannot demonstrate that the Impugned Provisions minimally impair s. 8.”
—“Most importantly, the Impugned Provisions undermine the Group’s access to a basic aspect of full membership in Canadian society by denying them the protection of Canadian sovereignty by exposing them to the extraterritorial enforcement of another state’s taxation and tax compliance regime.”
NEXT STEPS:
— Canada responds to our Memorandum of Argument by November 21, 2018.
— We reply to Canada by December 7, 2018.
— Trial is held in Vancouver beginning January 28, 2019
“And any programmer who dares to try to inform the project manager gets fired for their efforts.”
‘No actually, they would simply be ignored.’
It looks like you had better managers than I had.
I’m sure they had other reasons for firing you.
“I’m sure they had other reasons for firing you.”
Dilbert, TDWTF, Clients From Hell, etc., are all based on actual experiences. Same for the way IBM got its name: http://www.rightattitudes.com/2010/02/03/folklore-origin-expression-you-are-fired/
Except for two occasions when it was the economy (Canada in 1982, Japan in 2008), it was because managers didn’t want to hear the truth.
“The flaw with the automated questionnaire was the fact that once the birthplace question was answered, it was unable to cope with a “No” response to the subsequent question “Are you a US citizen?””
Funny how things like that always pop up to foul everything up.
It was quite gratifying to have an opportunity to shout at a banker, actually. 😉
I wouldn’t call that a foul-up, but rather an “edge case we didn’t design a solution for that requires dealing with a human”. I am curious as to whether there would be validation of answers somehow or whether this only a slightly more complex (conditional logic!) version of the “I am not an US person” checkbox used in Canada, with no further enquires or verification with documents.
Bet it was.
The situation is one I have faced for years. Many things from “home” are not easily available in Japan. Hard to find clothing that fits, software for computers in English nonexistant, etc.. So I do a lot of online shopping. A shocking number of companies say they accept orders from abroad but their websites don’t allow it. In the past, the field to type in the postsl code was too short for a Japanese postal code and/or the fields for address too short for typing out Japanese words in romanji. Later, once these fields were replaced with drop down menus, overseas options were often not included.
The strangest thing though, was everyones’ reaction to this. First I tried contacting the merchant to let them know I was unabke to enter the required data because they would not accept Japanese zipcodes etc.. Most insisted that such limitations did not exist. I’d go back and try again and yes they did exist. I’d report back and they’d get angry. One, exactly one was surprised to learn that their address data fields could not accept any than N. American addresses and thanked me for letting me know.
So, I’d ask family and friends to pick things up fir me and send them across because I couldn’t order them myself. They would go to the merchants’ websites and see some proclaimstion that they sell to overseas buyers and then tell me thst I was nuts, these merchsnts do sell overseas, their websites say so.
Much of my discussions on IBS is like reliving these wonderful experiences.
@nononymous
“I’m sure they had other reasons for firing you.”
What a piece of work you are, nononymous.
I’ve been fired a few times for snark, so I’m not unfamiliar with the process. I expect Norman has been fired for creating a permanent fog of confusion, with an occasional side dish of obsessive grievance.
Nononymous – it was a foul-up. There was no exit, just a loop back to the birthplace question followed again by the citizen question.
Ah, well that’s inexcusably poor design then. (Don’t throw an error without informing the user.) At minimum you should have been shunted off to a “sorry but you’ll need to call this number” screen. Or after the second attempt one could have said “bugger this” and picked UK as birthplace.
I’m still curious as to whether this was pure self-certification though. Sounds like it.
“I’m still curious as to whether this was pure self-certification though. Sounds like it.”
I could have lied about my birthplace, because I opened the account long ago. Those who opened the account more recently probably couldn’t because they probably would have shown their UK passport for id.
Though the UK passport only lists town of birth, not country, doesn’t it? It depends on whether the passport is merely shown to confirm identity, or whether actual data is copied down in the process.
We showed Canadian passports to open an ING account in Germany five years ago but they don’t seem to have noticed that mine included a US birthplace. (I don’t think they’re terribly strict – 18 months ago they requested proof that we were registered at the friend’s address we’ve given them, which of course we aren’t, but there’s never been any follow-up.)
But Nononymous, the whole point for me is not to accept that I’m a tax cheat because of my birthplace.
They’re in the wrong, not I. I wouldn’t dream of lying about my birthplace to help a bank comply with US tax law. No way!
I wasn’t suggesting you do – you’ve renounced after all, what’s the point? – I was just curious as to what would happen, from a process standpoint, if you did. Would they attempt to validate the answer?
Whereas I have not renounced, so I absolutely do encourage lying about birthplace or citizenship if it gets FATCA off my back. Whether that means I accept the label of “tax cheat” is a theological question of no interest to me.
@Nononymous
so I absolutely do encourage lying about birthplace or citizenship if it gets FATCA off my back. Whether that means I accept the label of “tax cheat” is a theological question of no interest to me.
you are 110% correct with the above statement…………………in CANADA anyways i believe nothing at will happen if you lie to the banks. besides it is none of their dang business where i was born or what my citzenship is.
after my OMG moment i went through the 5 stages of grief, drank to much, became depressed and spent way to much time agonizing over what to do till i came to the realization that doing nothing and getting on with my life was the best thing to do.
i contributed to the law suit as i did and still do believe it is necessary to send a strong message to both the canadian and american gov’ts that FATCA and CBT is wrong and that the canadian gov’t has sold out in excess of 1,000,000 of its own citizens.
‘I wouldn’t call that a foul-up, but rather an “edge case we didn’t design a solution for that requires dealing with a human”. I am curious as to whether there would be validation of answers somehow or whether this only a slightly more complex (conditional logic!) version of the “I am not an US person” checkbox used in Canada, with no further enquires or verification with documents.’
The web site of one financial institution automatically determined that it wanted me to upload a scan of my CLN. I complied and it accepted (though I’d guess a human probably looked at the scan later).
“The strangest thing though, was everyones’ reaction to this. First I tried contacting the merchant to let them know I was unabke to enter the required data because they would not accept Japanese zipcodes etc.. Most insisted that such limitations did not exist. I’d go back and try again and yes they did exist. I’d report back and they’d get angry.”
Yep. And had you been working for such a company, they would have fired you.
“i contributed to the law suit as i did and still do believe it is necessary to send a strong message to both the canadian and american gov’ts that FATCA and CBT is wrong and that the canadian gov’t has sold out in excess of 1,000,000 of its own citizens.”
Half right. Let’s hope the Canadian court will send a message to the Canadian government. Not a lot of hope, but let’s hope.
But a message to the American government? The US government doesn’t obey US courts, so who hopes they’ll obey a Canadian court?
“The web site of one financial institution automatically determined that it wanted me to upload a scan of my CLN. I complied and it accepted (though I’d guess a human probably looked at the scan later).”
That is a surprising example of somebody actually knowing that they’re doing. And yes unless they’ve got some potent AI those uploaded CLNs are reviewed by humans.
“Half right. Let’s hope the Canadian court will send a message to the Canadian government. Not a lot of hope, but let’s hope.”
The only message that would get through is the message that they cannot do this. No point giving them the message that what they have done is wrong, they know it already. They just consider it the lesser of two evils.
Bloody cowards.
“I will say Canada is very comfortable with our position. We are always going to speak up for human rights; we’re always going to speak up for women’s rights; and that is not going to change,” Chrystia Freeland told a news conference.
She’ll be the best witness in this lawsuit, right?
For what it is worth, Trump will walk all over Canada if Canadians rights are reinstated with this court challenge. The USA under Trump has become completely unhinged with what it originally stood for. The USA has no more morals, standards of fairness etc. What makes us think Trump will accept a ruling in our favor when the murder of a Journalist is less important than oil and arms?? We are dealing with a very unstable and dirty government with the USA now. Things are different. There will be no more fairness or integrity from the USA, we better watch out…..
@NativeCanadian
What if we just don’t tell them? Stop collecting the data, have CRA send them an empty zip file once a year, and say nothing. Would they notice?
@Nononymous That is what most of the victims of this injustice are doing to both governments now. Keeping their lives and lying about birthplace when they have to to live a normal and justified life. If someone tells trump that Canada is not doing their part for Fatca, he will shhot at our feet and make us dance again threatening “economic ruination” when he has to.