From Ann:
I have a contact for The Standing Senate Committee on National Finance.
Letters or emails should be directed to these people regarding FACTA and IGA.
Clerk: Jodi Turner 613 990 4995
Assistant: Louise Martel 613 990 5285
General Information: 613 990 0088 or 1-800-267-7362
Fax: 613 947 2104
email: nffn@sen.parl.gc.ca
Senate Committee on National Finance
The Senate of Canada
Ottawa, ON K1A 0A4
*********************
From Tim:
I think it will be the Senate National Finance Committee instead. Luckily that committee doesn’t look it is moving as fast on Bill C-31 as the Banking Committee so we have some more time. Additionally the chairman of the National Finance Committee is NOT a Conservative so that might be to our advantage.
********You may send your submission in either Official Language to the Clerk of the Committee.
I don’t know, Em, but here are:
Scholary papers of Prof. Cockfield: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=117948
and
Post re co-authored submission to Canada’s Finance Department: http://isaacbrocksociety.ca/2014/03/10/26973/
This was the funding grant for Professor Cockfield:
“Organization: Queen’s University, Faculty of Law
Location: Ontario
Funding Amount: $10,000
Project Title: The Privacy Implications of the Foreign Account Tax Compliance Act (FATCA)
Project Leader: Arthur Cockfield
Project Description: The project will review the privacy implications of the U.S. Foreign Account Tax Compliance Act (FATCA) in light of Canada’s Personal Information Protection and Electronic Documents Act. Specifically, the project will review implications on Canadian privacy rights and interests of any new agreement negotiated between Canada and the United States to implement FATCA. The project will also examine the interplay of FATCA with other Canadian laws that protect taxpayer privacy such as the Income Tax Act, the Canada-United States Tax Convention Act and the North American Free Trade Agreement (NAFTA). Finally, the project will review how Canadian banks are trying to comply with all relevant laws, and whether these banks are adopting new information technology systems to help them identify, sort, and transfer financial information to U.S. tax authorities.”
http://www.priv.gc.ca/resource/cp/2013-2014/cp_bg_e.asp
Got it! This link to the April 30th session is working for me.
http://hocca.wmod.llnwd.net/a4502/e2/20140430134500_9412_1019.wmv
First, Mr. Day the Chair said the Canadian government was aiding and ” the Americans by “finding a way around’ Canadian law. Later, he said he hoped some Canadians would be “put at ease” by what was presented. Um. No.
Here is what I just sent to the Senators:
@ Blaze
Perfect!
The House of Commons Finance committee is going to have a meeting tomorrow on Bill-C31. It is unclear as whether their will be any FATCA related discussions.
The following was sent to Members of the Senate National Revenue
Committee — by email, from me but with CONSIDERABLE input from Anne Frank and included the amendment that Blaze had previously submitted:
April 30 – Members of the Senate National Revenue Committee
@ calgary411 & Anne Frank
Also perfect!
Thanks, Em — and thanks for the link — watching / listening now.
@Calgary: I can’t open it here or at Sandbox. Is it possible to do it as a pdf so everyone can open it?
I’ve updated my comment with a pdf file April 30 – Members of the Senate National Revenue Committee
I modified this slightly and sent it to the senators: http://isaacbrocksociety.ca/2014/02/14/if-you-really-understood-fatca-you-would-not-support-it/
@Charl:
“The one overwhelming feeling I was left with while watching was abject rage over how bland, laid back, no big deal the attitude was by the senators and presenters when FATCA was discussed. I only wish is they would ask one of our team leaders to make a presentation, not just hear the gov side or rely on written submissions they either may not read nor are able to ask for clarification if needed.”
I believe the submission made by John Richardson, Stephen Kish et al to the Senate Committee in the US would be a perfect submission here as well. I wonder if the very busy John Richardson and or Stephen Kish would be willing to appear, if it could be arranged, and speak to the issues as laid out in their submission. It is excellent and hits all points right on the nose.( the bulbous and overly red one a la W.C. Fields the US is wearing these days!)
I can think of no other document compiled and submitted anywhere that is quite so thorough as to the evil and harm implementation of an IGA with the US will do to the whole country collectively and many innocents individually.
@Em and Calgary,
It was my understanding that the results from the study would be published and made available about now. One can contact the Privacy Commissioner’s office and ask to be sent either an electronic or a paper copy – just need to cite the name of the project: “Project Title: The Privacy Implications of the Foreign Account Tax Compliance Act (FATCA)” Project Leader: Arthur Cockfield
“OPC Publication Requests
Please note that all our publications are available in eletronic format on our web site. However, if you would like to obtain a paper copy of a particular publication, please send and email to publications@priv.gc.ca clearly indicating which document you would like to obtain, as well as your name and postal address. “
@Em:
Search for FATCA on the OPC website gives 2 hits, both about Cockfield. This has the most info:
Project Backgrounders – Contributions Program 2013-2014 – April 30, 2013
Organization: Queen’s University, Faculty of Law
Location: Ontario
Funding Amount: $10,000
Project Title: The Privacy Implications of the Foreign Account Tax Compliance Act (FATCA)
Project Leader: Arthur Cockfield
Project Description: The project will review the privacy implications of the U.S. Foreign Account Tax Compliance Act (FATCA) in light of Canada’s Personal Information Protection and Electronic Documents Act. Specifically, the project will review implications on Canadian privacy rights and interests of any new agreement negotiated between Canada and the United States to implement FATCA. The project will also examine the interplay of FATCA with other Canadian laws that protect taxpayer privacy such as the Income Tax Act, the Canada-United States Tax Convention Act and the North American Free Trade Agreement (NAFTA). Finally, the project will review how Canadian banks are trying to comply with all relevant laws, and whether these banks are adopting new information technology systems to help them identify, sort, and transfer financial information to U.S. tax authorities.
Maybe the Privacy Commissioner figures the issue is already dealt with, so why bother?
“PIPEDA Case Summary #2004-286”
Bank customers required to declare citizenship
Complaint
A number of account holders of a bank complained when the bank sent them a form letter asking them to indicate whether they were U.S. citizens. They believed that the bank was requiring them to consent to the collection and use of more personal information than necessary for the purpose of providing account services.
Summary of Investigation
In 2001, the ownership structure of the bank in question changed and the bank became an indirect subsidiary of a U.S.-based holding company. Since the bank is now classified as a “controlled foreign corporation” for the purposes of U.S. income tax law, it is required to comply with applicable U.S. Internal Revenue Service (IRS) regulations with respect to information reporting and tax withholding. It must therefore report the interest income earned on personal deposit accounts to the IRS for account holders who are known to be U.S. citizens, or presumed to be U.S. citizens because they have not declared themselves to be non-U.S. citizens.
The bank mailed all of its personal deposit account holders an explanatory letter and account declaration form. The letter indicated that if a holder did not declare that he or she was not a U.S. citizen, the holder’s name and address, and amount of interest income earned, would be disclosed to the IRS. The letter also outlined the purpose for collecting such information and how it would be used.
Our Office confirmed that the bank was required to comply with the IRS regulations and that it had interpreted them properly.
Findings (Issued December 21, 2004)
Application: Principle 4.2 states that the purposes for which personal information is collected shall be identified by the organization at or before the time the information is collected; and Principle 4.4 establishes that the collection of personal information shall be limited to that which is necessary for the purposes identified by the organization. Information shall be collected by fair and lawful means. Finally, subsection 5(3) states that an organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances.
In making her findings, the Assistant Privacy Commissioner deliberated as follows:
•Although she noted that one of the main concerns raised during the investigation was that a “Canadian” bank was putting the requirements of foreign legislation ahead of the privacy interests of its Canadian customers, the Assistant Commissioner was of the view that in terms of the collection and use of personal information, the bank was not.
•As a controlled foreign corporation, the bank is required to comply with applicable IRS regulations, which stipulate that it report the interest income earned for U.S. citizens but which allow it to not report the same for account holders who are non-U.S. citizens.
•To ensure that accurate information was being provided to the IRS and to protect the personal information of non-U.S. citizens, the bank sent the account declaration form to its account holders asking them to state whether they were U.S. or non-U.S. citizens.
•In the Assistant Commissioner’s opinion, the bank was making a reasonable request, for purposes that a reasonable person would consider appropriate, as per subsection 5(3).
•As the purposes were identified and the collection of personal information limited to the purposes, she found the bank in compliance with Principles 4.2 and 4.4.
The Assistant Commissioner concluded that these complaints were not well-founded.
ARCHIVED – Commissioner’s Findings – PIPEDA Case Summary #2004-286: Bank customers required to declare citizenship – December 21, 2004
“Finally, one additional issue is critical to successful implementation of FATCA’s disclosure obligations:
treating FATCA offshore account information as non-tax return information to ensure its accessibility to law enforcement and national security communities combating crimes other than tax evasion. …”
and
“…Foreign account information is too important to a wide range of civil and criminal law enforcement and national security efforts to be designated as tax return information bound by Section 6103’s severe restrictions on access. FFI forms, like FBARs, provide account information rather than tax return information, and should be made available to the larger law enforcement and national security communities. Similarly, FFI Agreements, auditor verification forms, copies of actual account documentation, and similar materials should be treated as non-tax return information available to the larger law enforcement, regulatory, and national security communities.”
For the above to be allowed there MUST be a WARRANT and PROBABLE CAUSE.
And it exposes what they are really after: The ability to levy penalties without restriction because that is where the money is. They know it and want the threat of the force of law enforcement.
This shows their intention to criminalize every single person without cause in order to extort and squeeze every last dime they can find from anyone.
It shows why they want (and the IGA gives them) third party snitches because they are not after tax cheats ( if that were the case, Timothy Geithner would be behind bars right now instead of in a position of privelege and power) they know most in Canada pay taxes much higher than would be payable in the US. They just want a way to find out who they can impose penalties on. And if the designation doesn’t wring enough out of folks, they will change the designation. Before you know it, our dogs and cats will be “US Persons” for having the audacity to allow a so called “US Person” adopt them!
This is legalizing criminal extortion.
Section 6103’s severe restriction on access should be the order of the day ! And it should not be allowed to be negated in any way.
@Shovel – as I was looking over the tremendous work that this group has accomplished in the last few months, I was moved to marvel at how much motivated grass roots folks can get done in this brave new world of ours. It has certainly made protection of even a modicum of privacy a challenge, but it has also put tools in our collective hands that society is required to sit up and take notice of. And yet, your nugget about bank’s data mining for the IRS as far back as 2004 should be a reminder that this problem is deeper than we thought.
Canada opened up its financial services markets to get competition not a bunch of trojan horses for foreign fiscal authorities. I am wondering whether we should not also be including in our political education campaign of MP’s a suggestion that Parliament should work on getting an outright prohibition on banks or financial institutions making any inquiries of their customers concerning national origin or citizenship beyond establishing that they are lawful permanent residents of Canada. With that overriding principle, FATCA can Facta-off. Banks don’t need citizenship data to carry on business in this country and if a foreign bank needs it to carry on business in their HOME country, then they are cordially invited to roll up their carpet and depart. The only way the US is going to change their CBT cancer is if they start to feel DOMESTIC pressure to do so and there is nothing like hurting US multinationals to get their attention. If Citibank (an on-again-off-again subsidiary of the US government anyway) gets pushed out of Canada by US law (because it can’t comply with US law abroad), it might actually start to wake up Congress to the fact that their legal myopia is bad for US business interests. That might get someone’s attention – or at least begin to!
@Shovel,
That is an interesting case you cite from the Privacy Commissioner’s site. Read also in full, the one which involved CIBC shipping VISA accountholder’s information to a third party to be processed in the US – making it subject to the US Patriot Act provisions. It shows we already had a serious problem regarding the US misappropriation and dissemination of our data that we were not protected from – and that is without direct Canadian government collaboration designed to formally assent to it. Now, with the FATCA IGA and legislation, they go even further in making us totally vulnerable.
http://www.priv.gc.ca/cf-dc/2005/313_20051019_e.asp PIPEDA Case Summary #2005-313
ARCHIVED – Bank’s notification to customers triggers PATRIOT Act concerns
(Principles 4.1.3 and 4.8)
………”Access of U.S. authorities to personal information of Canadian residents
The possibility of U.S. authorities accessing Canadians’ personal information has been raised frequently since the passage of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, 2001 (USA PATRIOT Act). Prior to the passage of this Act, U.S. authorities were able to access records held by U.S.-based firms relating to foreign intelligence gathering in a number of ways.
What has changed with the passage of USA PATRIOT Act is that certain U.S. intelligence and police surveillance and information collection tools have been expanded, and procedural hurdles for U.S. law enforcement agencies have been minimized. Under section 215 of the USA PATRIOT Act, the Federal Bureau of Investigation (FBI) can access records held in the United States by applying for an order of the Foreign Intelligence Surveillance Act Court. A company subject to a section 215 order cannot reveal that the FBI has sought or obtained information from it…..”…..
and,
…”…The Assistant Privacy Commissioner recognized that many Canadians are concerned about the flow of their personal information outside of our country’s borders and its accessibility by foreign governments. In order to determine whether these complaints are founded or not, however, it is the obligations imposed by the Act on Canadian-based organizations, and how well CIBC met them, that are the primary considerations…”..
and,
…”…The Assistant Commissioner noted, however, that while customer personal information is in the hands of a foreign third-party service provider, it is subject to the laws of that country and no contract or contractual provision can override those law…”…”In short, an organization with a presence in Canada that outsources the processing of personal information to a U.S. firm cannot prevent its customers’ personal information from being lawfully accessed by U.S. authorities.”….
Posting Lynne Swanson’s comment from MapleSandbox: http://maplesandbox.ca/2014/breaking-news-cons-hiding-fatca-law-in-budget-act/comment-page-2/#comment-33112
The NDP is again calling for the removal of FATCA from the omnibus bill.
http://www.ndp.ca/news/conservatives-must-remove-fatca-budget-bill?utm_medium=twitter&utm_source=twitterfeed
And:
Re: the amendment proposed by AnneFrank and sent to the senate committee. Isn’t this more or less the same thing that constitutional lawyer Peter Hogg suggested way back when? Of course, the government didn’t listen then.
First tiny cracks appear, then the hairline cracks merge into bigger cracks. Then, all of a sudden, the dam bursts.
We must just keep chipping away.
@AnneFrank
Yes, exactly. I am sure this is what has kept so many of us going for so many months.
@Anne Frank and @badger
Re: PIPEDA Case #2004-286
The summary lays out the Assistant Commissioner’s first point in a convoluted way.
So let’s re-arrange the sentence to make the reasoning clear:
“[T]he Assistant Commissioner was of the view that in terms of the collection and use of personal information” … “the bank was not putting the requirements of foreign legislation ahead of the privacy interests of its Canadian customers….”
How can anybody charged with protecting privacy have this thinking as a starting point?
Use this to send to MPs and Senate:
http://ssrn.com/abstract=2433198
http://dx.doi.org/
‘FATCA and the Erosion of Canadian Taxpayer Privacy’
Arthur J. Cockfield
Queen’s University – Faculty of Law
April 1, 2014
Report to the Office of the Privacy Commissioner of Canada, April 2014
Abstract:
“In 2010, the United States enacted a tax reform known as the Foreign Account Tax Compliance Act (FATCA). Under FATCA, all non-U.S. financial institutions, including Canadian banks, must review their records to determine if any accounts are owned by “U.S. persons,” which include U.S. citizens residing abroad and individuals with significant social and/or economic ties with the United States. The United States threatened to economically sanction any foreign country that did cooperate with the new regime. Accordingly, Canada has agreed to implement FATCA via an intergovernmental agreement (IGA) with the United States; at this writing the implementing legislation, Bill C-31, is before Parliament. This report discusses how FATCA and the IGA unduly harm the privacy interests and rights of Canadians in part because detailed financial information concerning hundreds of thousands of Canadians would be transferred to a foreign government for the first time. Canada is getting nothing in return for this privacy giveaway other than the relief of the threatened economic sanctions. The Canadian government should not implement the IGA until these privacy concerns are addressed.”
Number of Pages in PDF File: 36
Fulltext available as open source
(if you have trouble downloading, try a different browser).
If the Canadian government cannot safeguard our information once they’ve handed it over to the US, they shouldn’t be handing it over. The Canadian government is making a mockery of our privacy laws – and the US will laugh all the way to our banks!