Liberty and justice for all United States persons abroad

The Isaac Brock Society

Posted on by Posted in Freedom, Law & Morality 14 Comments

In a previous post I mentioned Monte Silver’s lawsuit against the US IRS and Treasury in United States DC District Court.

Mr. Silver’s lawsuit is a “technical-procedural challenge” against the U.S. Transition Tax (He discusses lawsuit on his FB site):

From Mr. Silver’s lawsuit:

“This action arises under the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq, the Regulatory Flexibility Act (RFA), 5 U.S.C. § 601, et seq, and the Paperwork Reduction Act (PRA). 44 U.S.C. § 3501, et seq. At issue is an extensive set of regulations issued by the United States Department of Treasury (“Treasury”) and the Internal Revenue Service (the “IRS”) that interpret the complex international tax provisions of the Tax Cut and Jobs Act, Pub. L. 115–97 (2017) (the “TCJA”). solutions for small businesses with regard to the TCJA as required by law, Defendants issued impenetrable regulations on or about January 15, 2019 (the “Final Regulations”) that impose many unreasonably complicated burdens upon a vast number of small businesses and small business owners like Plaintiffs…”

The first UPDATE on the lawsuit is that the IRS has now filed a Motion to Dismiss the lawsuit on pretty much technical grounds (Plaintiffs lack “Standing” [sound familiar? For lawsuit followers you already know that “no standing” is expected U.S. AND Canadian standard Government response to our FATCA/FATCA IGA lawsuits], lack of concrete injury/causality, too early for lawsuit until regulations have actually been applied and only then sue for a refund, etc.):

Part of the Motion to Dismiss:

“Plaintiffs, Monte Silver and his business, Monte Silver Ltd., bring suit under the Regulatory Flexibility Act (RFA) and the Administrative Procedure Act (APA) to challenge recent Treasury regulations issued to implement “certain complex international tax provisions of the Tax Cut and Jobs Act.” Amended Complaint at ¶ 1. Plaintiffs object to the content of the implementing regulations as too complex and burdensome and also allege several procedural errors in the promulgation of the regulations. Plaintiffs lack standing to maintain this action. The Court should dismiss the Amended Complaint because the Amended Complaint does not contain plausible allegations of a concrete injury, causation or redressability…”

Second UPDATE: Mr. Silver responds to the Motion to Dismiss. Part of his response (see the link):

“… Plaintiffs have standing under two different lines of authority. First, Plaintiffs have suffered injuries-in-fact in the form of added compliance costs and other burdens as a result of the Final Regulations. They have ” procedural standing “ because they seek to enforce a procedural requirement the disregard of which could impair a concrete interest of theirs. Here, Defendants had a duty to comply with the procedural safeguards of the RFA and related statutes designed to protect the interests of small business when they issued the Proposed and Final Regulations. Their failure to do so imposed compliance burdens and costs upon small businesses like Plaintiffs, which establishes Plaintiffs’ standing to bring this suit under the RFA. Second, Plaintiffs have standing even under the authorities cited by Defendants. Small businesses like Plaintiffs have incurred (and will continue to incur) injuries through compliance costs which are directly traceable to the failure of Defendants to consider accommodations for protecting small business when they issued the Regulations. That violation is redressable because under the RFA, in the case of a statutory violation, the court “shall order the agency to take corrective action including, but not limited to, remanding the rule to the agency and deferring the enforcement of the rule against small entities.” 5 U.S.C §61 l(a)(4)(emphasis added)…”

—- Note for comparison that Government of Canada attorneys have also argued at the Federal Court trial that our plaintiffs Gwen and Kazia also lack “standing” as plaintiffs. One commenter asked on June 7: “What is happening with your lawsuit? It’s been months since you argued the case” The answer is that we are still awaiting decision on our trial which ended on the first week of February.

14 thoughts on “Update on Monte Silver’s U.S. Lawsuit Against Transition Tax: IRS/Treasury Defendants file Motion to Dismiss on technical grounds — Monte Silver responds (July 15, 2019) to Motion to Dismiss — And we are still waiting for Federal Court Justice MacTavish ruling on Canadian FATCA IGA lawsuit”

  2. This business of having to wait for obvious damage to have actually happened was thrown out in a Jamaican Constitutional case recently in the matter of a Government National ID system (#NIDS) containing all sorts of personal data including finger prints etc etc. As I recollect the Chief Justice ruled that where the damage could clearly be anticipated that was enough. Jamaican Law may not have a direct influence on other countries BUT the Jamaican Constitution is pretty much the same as the Canadian Constitution. I believe that I posted a link on Brock when the case was ruled on. Once again, I urge someone with a better understanding of Law than I to check out the arguments and ruling in this case as it is seems relevant to our FATCA case.

  4. A further link in which the Chief Justice Sykes says “,,,,, in handing down the ruling a short while ago, said the challenge was not premature, noting that once the claimant identifies a violation to his Constitutional rights then the burden is on the Government to show that the violation is demonstrably justified in a free and democratic society.

    http://www.jamaicaobserver.com/latestnews/_NIDS_court_ruling_

  6. The Canadian judge appeared to be disturbed by the fact that FATCA allows the CRA to have unprecedented access to many Canadians banking info – information made available without a warrant or any suspicion of wrongdoing.

  7. I hope that the Canadian Judges will work through the issues here logically the way the Jamaican Chief Justice Sykes seems to have done … in fact all of the judges on this panel.

  8. Three cheers for the Jamaican court! Excellent reasoning! It’s shameful that US courts believe people have to get hurt before they have the right to fight. Incredible!

  9. The treasury secretary is a corrupt money mongering coward. The IRS is more messed up then someone with AIDS. We need to go after them as if we are the soldier and they are the terrorist. Wait, they ate political terrorists.

  12. Update from Monte Silver – July 14, 2019

    https://www.facebook.com/groups/americansmallbusinesses/permalink/698497177281766/

    “Absent some unforeseeable event, the opposition to the motion to dismiss will be filed on time, Monday. Never before have I worked (in partnership with our lawyer) so hard and for so long on the research, drafting and editing of a legal brief. Not even close. But the brief is superb, esp. compared to the mediocre brief the government produced. Hopefully, the judge will agree 🙂 If he does …. BOOM! We make legal history – in tax law, but more so in administrative law by getting the courts to force the powerful Treasury/IRS to comply with the law and protect small businesses when issuing regulations. And in dealing with a high profile Tax Cuts & Jobs Act no less. Precedent setting in many many ways!”

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