Recently I posted Arrow’s article at the Vancouver Sun concerning Peter Hogg’s letter to Finance Canada on LinkedIn. I just read a very interesting response from Jeff Mukadi, a Toronto tax law and compliance professional. (All emphases are mine).
He has published an article, ““FATCA Getting Rid of U.S. Clients Will Not Get You Off the Grid,” Journal of International Taxation, November 2012. He argues that foreign citizens affected by FATCA should bring their governments to court through class action suits to invalidate FATCA/IGA’s for unconstitutionality. He discussed some excerpts of the article; and makes a very strong case for the absence of reciprocity and true quid pro quo. “Reciprocity is not simply an exchange of one thing for anything, but one right for the same right and one obligation for the same obligation.” As we all know, this is simply not what the US is “offering.”
What is most interesting is his suggestion that FATCA cannot be implemented in Canada not only because of our privacy laws but more importantly, because of the Foreign Extraterritorial Measures Act (R.S.C., 1985, c.F-29). This Act was designed specifically to “deny effect to extraterritorial Acts of foreign governments violating Canadian sovereignty.” The US National Defense Authorization Act (“Cuban Assets Control Regulations,” July 8, 1963) was such a measure and prompted the issue of the Foreign Extraterritorial Measures Act (United States) Order of October 9, 1992 (SOR-92-584). By authority of the Canadian Attorney General jointly with the Secretary of State for External Affairs, SOR-92-584 prohibited a Canadian corporation, or director, officer, manager, or employee in a position of authority of a Canadian corporation, from complying with this U.S. law. So in addition to not joining the “Coalition of the Willing” in 2003, we have another instance of Canada standing up to the US. Mr. Mukadi emphasizes the fact that since FATCA is even more agressive than the US National Defense Authorization Act, “it is certain that SOR-92-584 will always be invoked as a precedent against any attempt to implement or enforce FATCA in Canada.” Since governments are not taking care of their primary duty, that of defending their sovereignty and protecting citizens, it might be easier to fight FATCA in the courts. And until this happens, we cannot know if we can be safe from FATCA.
He indicated he would send me the article so I hope I can pass on more. I also contacted Allison Christians to see if we could get her take on it. In any regard, this sounds like another specific “weapon” we can use in this fight and I believe we should let our government know we are aware of it.
UPDATE: Mr. Mukadi has kindly provided a copy of his article: FATCA JOIT Article November 2012 – Final Galleys Mukadi FATCA
This is a re-post of a mass emailing by James Jatras of RepealFATCA.com which was sent out over the weekend. If it was mentioned on IBS, I might have missed it. Thought it should get headline billing here, so it is picked up by other FATCA watchers.
More Trouble for FATCA in Canada, China, Hong Kong – and what amounts to a declaration of war from Moscow!
James George Jatras for RepealFATCA.com
February 22, 2013
FATCA: the “Fear And Total Confusion Act”
As noted earlier, FATCA (the Foreign Account Tax Compliance Act) is unenforceable and unviable unless virtually all countries in the world – or at least all the major financial centers – sign on. That is looking less and less likely, spelling big trouble for a law that one of America’s top tax lawyers has correctly described as “sheer idiocy.”
Comment and analysis from James George Jatras of RepealFATCA.com
Washington, February 8, 2013
If anyone had any thought that China would go along with FATCA, forget it.
As noted in Risk.net, China has little incentive to comply with FATCA (the Foreign Account Tax Compliance Act) or to sign an intergovernmental agreement (IGA) with the U.S. In fact, Beijing has every incentive – and ability – to tell Washington to get lost. Continue reading
– from Star Wars: Episode V – The Empire Strikes Back (1980)
James George Jatras
January 4, 2013
Proponents of the “Foreign Account Tax Compliance Act (FATCA) – a/k/a “the worst law most Americans have never heard of” – fell short at the end of 2012 on two key indices, further puncturing its air of presumptive inevitability:
- The Treasury Department had predicted that 17 countries (already a shamelessly padded list, with inclusion in that number of three tiny British Crown Dependencies) would finalize intergovernmental agreements (IGAs) with the United States to impose FATCA on themselves by December 31. The actual result at year’s end? Signed IGAs with the UK, Denmark, Ireland, and Mexico. Switzerland and Spain reportedly also have “initialed” agreements, whatever that means.
- The Department had also expected to finalize the draft regulations applicable to foreign financial institutions (FFIs) by year’s end – but that didn’t happen either.
It is a scholarly discussion about all the things wrong with FATCA by Herman B. Bouma, Senior Tax Counsel at Buchanan Ingersoll & Rooney PC, and an international taxation expert. I do note that he lives in the Center of the Universe, close to the International Revenue Service in DC.
When something starts out like this, how can you not read it?
With all due respect, FATCA is sheer idiocy and must be repealed as soon as possible! There are 11 reasons why. 1. The Height of Arrogance.
If you like his article, you can thank him via email at: firstname.lastname@example.org
For those that like Executive summaries, Andrew Quinlan at the Center for Freedom and Prosperity provides a nice bulleted list of the 11 items called:
He adds his own 3 items, and I am sure we can all add to this list too. I have my own Number 12: Security, Identity theft and Fraud Risks.
Finally, @Blaze over at Maple Sandbox, inspired by these 11 Reasons, created an excellent list of 12 reasons why Canada must REJECT the FATCA IGA Cram Down!
REMINDER! TOMORROW, SATURDAY DEC. 15!
FOR IMMEDIATE RELEASE: CONTACT: 905-853-8949
FATCA Fact Finding Forum – Should Canada Allow US Tax laws to extend into Canada?
Should Canada be governed by Canadians or by the US?