Author Archives: IRSCompliant Forever

Stephen Kish and Lynne Swanson have reviewed the legal opinion provided by constitutional lawyer Mr. Joseph Arvay on the constitutionality of the pending legislation “Canada-United States Enhanced Tax Information Exchange Agreement Implementation Act”. This act is aimed at implementing the “Intergovernmental Agreement” (IGA) designed to make the “Foreign Account Tax Compliant Act” (FATCA) operative in Canada.

The opinion has also been discussed with Mr. John Richardson, a Toronto lawyer, with whom we now have solicitor-client privilege, and who will be part of Dr. Kish’s and Ms. Swanson’s “litigation committee”.

The lengthy opinion provides in detail the pros and cons of the arguments, and possible outcomes.

There are good arguments that the proposed legislation infringes at a minimum on constitutionally protected rights and freedoms. Nevertheless, there are also arguments that the Government of Canada may employ to counter our position and, we emphasize, there is no certainty that litigation will be successful. Further, any litigation will be hard fought and very expensive. This litigation is not for the faint of heart.

Given the opinion of Mr. Arvay and discussion with Mr. Richardson, we advise that it is our intention to take all necessary steps to commence litigation against the Government of Canada once the IGA implementation legislation is enacted. Moreover, the nature and impact of the unprecedented legislation on all persons in Canada and those throughout the world who will be impacted by FATCA demands that we exercise this option that is in the public interest.

Very significant fundraising will be required.

Stephen Kish
Lynne Swanson

[Cross-posted on Maple Sandbox]

Stephen Kish and Lynne Swanson today received a very lengthy and comprehensive legal opinion, from constitutional lawyer Joseph Arvay, on the constitutionality of Canada’s pending FATCA IGA legislation.

Stephen Kish

[Cross-posted at Maple Sandbox by Lynne Swanson]

IRS wants to know how it can improve service to persons living abroad:

See below portions of a letter recently received from a person living outside the U.S. This letter, sent from a division of the IRS, invites persons to fill out a survey on the “unique perspective” of people like us with the aim of improving IRS services.

Apparently there will be 4000 such requests mailed out (out of 7 million or so US people abroad). The IRS survey help desk advised me over the phone that the 4000 names are provided by the IRS to the survey company.

It appears that the invite will be sent to some US persons abroad who have NEVER had an interaction with the IRS.

How does the IRS discover such never-filers? According to a past survey discovered by @MyKitty:

“Nonfilers with a perceived filing obligation were identified through their information on the IRS
nonfiler database and matched to passport data from the U.S. Department of State.”

http://www.irs.gov/pub/irs-soi/12rescontaxpayexperience.pdf

A never-filer with filing obligation would never ever respond to an IRS online survey. Right?

Not true. 16% of nonfilers with a perceived filing obligation actually responded to the 2011/2012 survey.

The helpdesk will not provide survey questions to me, but I may be able to obtain the questions and if so will add these to this post.

Here is the letter (I have boldened a few sentences):

“Date

Dear [ ]

Help us improve our services!

The Internal Revenue Service (IRS) is currently conducting the 2014 IRS Survey of Individuals Living Abroad with the help of an independent research company, ICF International.

I invite you to participate in this important study seeking to understand the unique perspectives of individuals living outside the continental United States (U.S.).

Even if you have never had an interaction with the IRS [If you never had an interaction with the IRS, what should be your response to this invitation?], your insights are still extremely valuable in helping us improve our services for individuals living abroad, including those living in U.S. territories.

ICF International will not provide any identifying to the IRS and will keep your identity private to the extent permitted by law.

….Your participation in this study is entirely voluntary; however by completing this survey, you will help the IRS develop a comprehensive portfolio of service improvements. The service should take about 10 minutes to complete.

You do not need to wait for the paper survey if you prefer to take the survey online….entering password…

I am personally committed to improving service to individuals living abroad. Please help me…If you wish to verify the IRS’s sponsorship….

https://www.icfmtvweb1.com/irs_nonfiler/authenticate.asp

IRS Division…”

[Part of fine print at bottom of letter: “The information you provide may be disclosed to an IRS contractor when authorized by law.”]

As some have predicted, the IGA legislation has been buried in the Budget Implementation Act.

Little likelihood for free vote now. One source tells us that final reading of the bill in the House may happen by end of May/June.

Posted by Blaze on Sandbox:

The Cons continue their sneaky games. They have hidden the law to enable FATCA and the IGA in the 375 page omnibus Budget Implementation Act 2014.

http://www.scribd.com/doc/215070578/2014-Budget-Implementation-Bill

The enabling law begins on page 72 (Clause 99). The IGA begins on page 313.

A source tells me it is possible the FATCA legislation could pass by late May or June.

So, now we know what Finance Canada did with all of our submissions. Nothing.

http://maplesandbox.ca/2014/breaking-news-cons-hiding-fatca-law-in-budget-act/

March 29 Update on Joe Arvay Legal Opinion:

Just to let everyone know that Lynne Swanson and I contacted Joe Arvay today (Saturday, March 29) for an update.

He tells us that he is on track to provide the legal opinion on the FATCA IGA legal challenge in April — but that there is a possibility that it might take longer because not all can be predicted. Mr. Arvay wants to get this right.

I know all of us want the answer today, but please be patient.

Stephen Kish

On March 10 2014 a small group of Canadians (with supporters in other countries) took a gamble and donated money they could not afford to try to bring down FATCA using a legal challenge approach.

What if similar groups in other countries took their governments to court over this?

One Brocker, upset that the Swiss referendum did not obtain enough signatures, already told us that:

“[The Swiss Federal] Constitution undisputably mandates guarantees of nondiscrimination and liberty of economic opportunity, as well as the right to a family and the protection of privacy, among many other things. Here at IBS, we all know that FATCA violates such guarantees, as expressed in the UDHR, as well as many constitutions around the world”.

http://isaacbrocksociety.ca/2014/01/14/swiss-anti-fatca-referendum-did-not-obtain-enough-signatures-disappointing-however-not-end-of-world/

Here is a list of countries with constitutions. How many of these constitutions guarantee fundamental rights that are violated by FATCA?:

http://en.wikipedia.org/wiki/List_of_national_constitutions

Are there any Brockers/Sandboxers or their sympathizers in these countries who could lead anti-FATCA constitutional challenges?

See today’s new post on the Republicans Overseas website asking that this happens:

Canadians Ask “US Persons” World-Wide To Challenge Legality of FATCA

In only six days Canadians Dr. Stephen Kish and Lynne Swanson received sufficient donations from Canadians and those in other countries to retain a constitutional expert attorney. The attorney will examine the constitutionality of the proposed IGA (Intergovernmental Agreement) between the United States and Canada to implement FATCA.

They and other Canadians believe strongly that the IGA will violate Canada’s Charter of Rights and Freedoms.

Kish and Swanson ask concerned peoples in all countries affected by FATCA (i.e., ALL countries worldwide) to begin similar efforts to bring down the FATCA beast.

See the press release for the Canadian Charter Challenge Fund: http://maplesandbox.ca/wp-content/uploads/2014/03/News-Release-First-Legal-Step-To-Stop-FATCA.pdf

https://www.facebook.com/republicansoverseas

Do you have any suggestions for Mr. Arvay?

You know that with the donations Lynne Swanson and Stephen Kish have retained Joe Arvay to provide a legal opinion on the constitutionality of the proposed FATCA IGA legislation.

@George recently made the good suggestion we are now following up on:

Could you start a thread where Brockers could make comments or observations which you could then hand to the Attorney?

The purpose of this thread is to receive those comments you feel might be helpful to Joe Arvay. In my own experience with lawyers, suggestions from people who have been harmed have made the difference.

If you make your suggestions by March 11, Lynne will coordinate and synthesize them and forward them to Mr. Arvay.

Also, if you are uncomfortable in providing comments publicly, you can email me at canadiancharterchallengefund@gmail.com If you do, please don’t use your real name.

Thanks

Blaze and I have sought advice on how best to proceed with a legal challenge to Canada’s proposed IGA legislation to implement FATCA.

The advice received from legal people we consulted is that the first step should be to obtain a “warts and all legal opinion” on the merits of a challenge and that Joe Arvay, given his expertise and credibility, is the one to do this.

Please provide your comments and suggestions to this proposal, originally posted on Sandbox:

http://maplesandbox.ca/2014/possible-charter-challenge-legal-opinion-needed-and-funds/

“As most of you know, the possibility of a challenge under the Canadian Charter of Rights and Freedoms has been discussed for some time.

With the signing of the IGA and proposed legislation to override existing Canadian laws, we need to determine our next steps.

http://www.fin.gc.ca/treaties-conventions/pdf/FATCA-eng.pdf

http://www.fin.gc.ca/drleg-apl/2014/can-us-eu-0214l-eng.asp

Prominent Canadian constitutional lawyer Joseph Arvay has reviewed the IGA and the proposed legislation. He has recommended as the first step a formal legal opinion to advise if a challenge would have a reasonable possibility of success. In his letter to me (real name and address removed)

http://maplesandbox.ca/wp-content/uploads/2014/02/Mr-Arvay-Opinion-Letter.pdf

Continue reading →

UPDATE:

This article has also been published at The Hill’s Congress Blog. It’s a great opportunity to directly reach a Congressional audience so we encourage readers to get over there and comment!

This is the second article by Caldwell in Canada’s conservative-leaning Financial Post and is much stronger than the first. I have asked Mr. Caldwell to send his article as a submission to Canada Finance (deadline March 10).

http://opinion.financialpost.com/2014/02/11/canadas-u-s-tax-capitulation/

A few excerpts:

“FATCA, passed by the U.S. Congress in 2010, is an extension of America’s anomalous and larcenous practice of demanding taxes from people, regardless of where they reside in the world. The United States is one of only two countries that engage in this disgraceful conduct (Eritrea being the other.)

….Let us eliminate a deliberate misconception: This agreement is not about catching “tax cheats” as its proponents aver and journalists obediently repeat. It is about expanding America’s oversight of global commerce, while increasing its ability to confiscate funds to which it has no legitimate claim.

Continue reading →

Dec 25 UPDATE:

My Christmas letter response to TD Bank CEO Ed Clark:

December 25, 2014

Ed Clark
Group President and
Chief Executive Officer
TD Bank
Toronto Dominion Centre
P.O Box 193
Toronto ON
M5K 1H6

Dear Mr. Clark,

Re: Customer(s) declines TD Bank’s comfortable FATCA experience and cancels bank account

You might remember me as the customer who requested that your bank remove an offensive statement from your website. In the offending sentence TD Bank states a commitment to “ensure” that its US customers in Canada, terrified by having their bank records forcibly turned over by your bank to US IRS, will somehow receive a “comfortable” experience while they are being FATCA’d.

The response to my request, issued jointly from three departments, was surprising: TD Bank is adamant, illogically, that it can actually provide meaningful comfort for its US customers who are being FATCA’d (e.g., customers will listen to Mozart sonata while seated in proprietary TD-green recliner?). Paradoxically the letter also notes that your bank might revise the offensive sentence in future—but why consider revising, as you insist that the statement is accurate, fair, and not offensive?

TD Bank also shifts the blame, unfairly I feel, to the hapless Canadian Bankers Association which never promised on behalf of any Canadian bank–not even TD Bank– a positive FATCA experience to customers. Your bank is the only financial institution in Canada, probably even worldwide, to make the extraordinary claim of comfort provided while a foreign government confiscates a customer’s life’s savings. In this respect, TD Bank’s service may well be, as you say, “legendary.”

I just wanted to let you know that I cancelled my account with TD Bank the day after I received your bank’s unacceptable response. I now have an account with another major Canadian bank that does plan to FATCA me, but will treat me with better respect by not aiming to give a comfortable FATCA experience.

For the future I am considering banking with one of the smaller credit unions that will not provide any FATCA experience whatsoever to its customers.

Mr. Clark, please appreciate that there are one million (plus) US person households in Canada. We all have banking options (so far) and we have long memories. We will never forget those who chose not to treat us fairly and with respect.

I have cc’d this letter to Finance Minister Flaherty and to others and will be hand delivering a copy to my local MP Mr. Bernard Trottier.

Sincerely,

[Name disclosed on letter]

Cc: Honourable Jim Flaherty, Minister of Finance
Honourable Bernard Trottier, MP Etobicoke-Lakeshore
Honourable Scott Brison, Finance Critic
[ ] Senior Manager, Customer Experience Strategy
Selected US persons abroad

Dec 20 UPDATE:

I closed my TD Bank account in response to TD Bank’s unacceptable response.

Dec 19 UPDATE:

—THE FINAL RESPONSE FROM TD BANK:

Dear IRSCF,

I am writing to you on behalf of the following TD departments: Legal, Corporate Communications and Public Affairs, and the Ombudsman’s Office in regards to your request to remove content from our website regarding FATCA.

We, TD Bank, acknowledge that you have made several requests to various TD departments seeking further information in regards to FATCA [??]. While the FATCA guidelines issued by the IRS will apply to all non-U.S. financial institutions around the world, the Canadian government is negotiating a bilateral agreement with the U.S. Once defined, all Canadian banks will be subject to the requirements resulting from this agreement.

The statements on our website accurately reflect the nature in which TD is responding to its legal obligation in order to comply with the Canadian legislation that will implement Canada’s bilateral agreement with the U.S. on FATCA. With regards to your objection about using “comfortable” in our website, we strive to provide a comfortable experience to our customers by ensuring that they always receive accurate and timely information with regards to FATCA [but see Badger’s comments below]. Nonetheless, we will take your feedback into account when we next refresh the FATCA content on our website.

We feel we have addressed your concerns to the best of our ability and we now consider the matter closed. For further correspondence regarding changes impacting the Canadian banking industry, we suggest you contact the Canadian Bankers Association (http://www.cba.ca/en).

Regards,

[ ….Customer Experience Strategy]

BE LEGENDARY! [text in green]

Every Customer. Every Time. Everyone [text in green].

Dec 18 UPDATE:

—TD Bank Ombudsman sends email stating that it will ensure that I receive a response from the bank.

Dec 12 UPDATE:

—As ten days have passed without any decision by TD Bank to my request for deletion of the offensive sentence on its website, I have forwarded the Dec 2 letter and all email correspondence to the TD Ombudsman for resolution (Step 3).

Dec 7 UPDATE:

—the letter of concern has now been escalated to some unknown component of TD Bank.

Dec 3 UPDATE:

—The complaint has been received by TD Bank.

THE ORIGINAL POSTING:

TD Bank has issued a statement on its website committing the bank to provide customers impacted by FATCA with “support and information” to ensure that they somehow will receive a “comfortable” experience while the bank is helping the US impose this law.

This statement is offensive and the letter below asks TD Bank to delete the statement from its public website and to apologize to its customers:

[SENT BY HARD COPY AND POSTED ONLINE AT ISAACBROCKSOCIETY.CA AND MAPLESANDBOX.CA]

December 2, 2013

Attn: Customer Service
Toronto-Dominion Centre
P.O Box 193
Toronto, ON
M5K 1H6

E-mail: customerservice@td.com

Dear Sir/Madam

Re: Request for deletion of offensive statement on TD Bank website

This is a request that TD Bank delete the second sentence in section #5 of your website: http://www.tdcanadatrust.com/customer-service/overview/fatca.jsp

The sentence reads: “TD is committed to providing impacted customers with support and information to ensure they receive a comfortable experience once the law comes into effect.”

The law referred to in this sentence is the U.S. imposed Foreign Account Tax Compliance Act (FATCA) in which TD Bank will assist a branch of a foreign government, the U.S. Internal Revenue Service (IRS), in obtaining financial information on its customers in Canada.

Continue reading →

This is a print version of part of a November 19 CBC radio interview in which a representative of the Canadian Bankers Association as well as Allison Christians (Chair of Tax Law at McGill University) and a U.S. person in Canada were interviewed.

The title of this November 25 CBC update “Canadian banks to be compelled to share clients’ info with U.S” is incorrect as the banks are aware that they have the option to resist FATCA and lobby seriously for its repeal.

It might be significant that the CBC/CBC reporter selected the pointed phrase that our financial institutions are being “deputized by the IRS.”

@Em notes below that there are 650 comments already (7:45 pm) on this CBC site– with most anti-FATCA (and not from the usual Brocker/Sandboxer crowd)

Some commenters do not understand FATCA and ask: “What are people so afraid of if they have nothing to hide?”

See the CBC link:

http://www.cbc.ca/news/politics/canadian-banks-to-be-compelled-to-share-clients-info-with-u-s-1.2437975