Liberty and justice for all United States persons abroad

The Isaac Brock Society

Time for Reflection

Posted on by Posted in Issues regarding US persons abroad 124 Comments

moving forward

It seems a convergence is about to transpire; the IGA will soon pass, FATCA is 10 days away and the IRS’ recent “easing-up” on penalties. I started wondering just how much of that “easing-up” has to do with our efforts, and what a great PR move the IRS just made, etc. Will it really make a difference and so on…..

I think now is a good time for all of us to sit back, take a breath and look at where we were, where we are, and where we would like to be moving towards. I am particularly interested in the less-than-obvious observations Brockers and Sandboxers have about what has contributed to any one of those stages.

Someone at the IRS just made a brilliant move. As if it hasn’t been hard enough to get everyone to listen, i.e., friends, families, media, CDN govt, IRS and the Congress, it will now become a lot harder. Imagine how many times we are going to hear “What are you complaining about, no penalties to be afraid of, etc etc. Not much progress seems to have been made in putting a dent in the misconception that Americans abroad are not the same as Homelanders stashing money in tax havens. In spite of the enormous amount of time Brockers and Sandboxers have put into responding to endless articles and putting up with endless abuse from those who either do not know how to read or cannot think outside the cliché box or else just enjoy being unkind.

What about all the time and energy put into researching, trying to get questions answered without the bias of the compliance industry, govt etc. I was recently cautioned/reminded about the fact that no one should advise anyone to break the law. I still do not see anyone here doing that; we are looking at what options are there and sharing that information. Back to Expat Forum days, Ladyhawk’s amazing post Why I Will Not Renounce”. The “mass” renunciation meeting in October 2011. The horror of seeing OVDP morph into OVDI; Shulman’s refusal to acknowledge Nina Olson’s TAD. Actually renouncing. Watching Mona Lisa do a complete 180 turn as the reality of this miserable mess forced her to do what she absolutely felt was wrong for her to do……..

So much effort and participation…the protests, the Information Sessions, the We Are Not a Myth Campaign, appearances in front of FINA, the list goes on and on. I find this aspect to be truly inspiring and amazing, that we have managed to come together and hopefully, have made a difference.

I guess what I am saying/asking is:

What moments/events are the most memorable for you?
Which ones have made you the most angry?
Which have given you hope?
Do you think we have played a part in the change of IRS’ direction?
Do you think we have been able to help people?
What kind of direction should we be looking at?
and whatever other questions come up………….

Of course we will continue with the Charter Challenge. Of course we will continue to argue that Accidentals should not have to waste money to become compliant so that they can renounce. And that CBT needs to be abolished. I just wonder how all of you may be feeling/thinking before the next wave hits.

124 thoughts on “Time for Reflection”

  3. Having trouble finding some missing comments on this thread … my usual workarounds aren’t working. Oh well .. maybe later.

  6. @WhiteKat,

    I am not allowed to reveal it.
    Sorry I did not realize I should not ask the question. 🙁

  7. Charl and all: Regarding the possibility of a complaint to the United Nations I found this webpage:

    http://www.ohchr.org/EN/HRBodies/HRC/ComplaintProcedure/Pages/HRCComplaintProcedureIndex.aspx

    The link to the complaint procedure form is near the bottom along with the address where the form should be sent.

    Finding this is thanks to Petros who had started a thread on this back in 2012. I typed “United Nations” into the IBS search box and up came his original posting. It was in this posting that I had read the part about needing to make the submission with a real name or as a group of people with real names.

    The complaint must also be made when all domestic avenues have been exhausted. Does this mean we should wait and see what happens with our lawsuit? How many of us are going to come to harm before we get to court? I would say that except for the Charter Challenge we have exhausted all domestic avenues. What say all of you?

    Any possibility of having a separate post about this? Better yet, could we get Petros’ 2012 post put back up near the top as an UPDATE?

  8. @Muzzled

    I believe we need to start the ball rolling as God only knows how long it will take the Charter challenge to be heard. Yes, we have exhausted all domestic avenues other than writing more letters for them to never look at. There might be a fair bit of time needed to figure it all out/get advice etc, why not get started? I’m in for whatever you need doing. (With the apparent overzealousness occurring with the banks I think many could be hurt before the challenge is heard).

  9. Charl: I agree with you. Let’s see if some others comment on the idea. In the meantime I’m going to start working on a draft for a complaint using the procedure form. I’m going to see if I can print it out and work on paper with the questions. If you like, you could do the same and we can compare notes. As you suggested, this could take a while so why not get started. I’m going to email Petros and get his take on this since I don’t think he’s been reading this thread. I’m so glad you’re passionate about this!

  10. @muzzled
    I would LOVE to help but you must be aware of my limitations. I’m not as clever nor have even close to the writing/verbal skills as most of you. I will do my best though, you can clean it up.

  12. We need a lawyer, doesn’t have to be Joe, to write a standard complaint for small claims court in each Province for damages under 25,000.00 and those forms, even if blank need to be posted on this site so everyone can download it for their respective Provinces.

    The cost to file a small claims is less than 200.00.
    As soon as someone is fed one of these new fascist questionnaires by their bank, or by a new bank they want to open an account in, they should file the claim. These claims are for actual financial damages one might incur when being booted and also other unspecified damages. These claims can make mention that you are being discriminated against and even if you lose the main thing is that it drags them into court, especially if you name your bank manager. They will have to send their lawyers to small claims to defend the case. Usually the clerk who takes the claim forms and the fee from you might ask what it is about so make sure you keep track of all and any costs and financial losses that occur or might occur even if you think they are trite. All costs should be listed, even postage stamps and long distant phone calls etc. The longer the list the better.

    I stress that this has nothing to do with the Challenge whatsoever and it doesn’t matter what Joe or anyone says, this claim is for personal damages and expenses and losses against a particular individual employee at a local bank and no one can prevent you from doing this. If we get thousands and thousands to do this we will tie up bank time and resources across the country and be a royal pain to them. So take the time to download the forms and find out how it works. This could be the very best weapon we have to prevent banks from cooperating with the CRA and IRS to conspire to defraud us. One of the stated reasons that banks are not wanting Americans is they don’t want the expense among other more serious reasons. We can cost them a lot of headaches and time at no expense to us. Best of all there is no connection to the Challenge and no one can prevent us from doing this. There would be no blanket ruling that legally prevents such lawsuits. Small claims is a breeze and there is usually a mediator, not a judge. They usually rule in favor of the claimant because they believe that if a claimant goes through the trouble then they must have a case. In small claims the defendant is at a distinct disadvantage ESPECIALLY if they bring a professional lawyer with them. A mediator is not going to be impressed when some pin striped suited Bankster shows up to fight a lowly citizen. I have won 2 cases in recent years, one for 3,000.00 and another for 14,000.00 that I settled for 6,000.00 Folks this is a breeze. Lets make this a MAJOR project for all of us. If I’m presented with the crooked banks disclosure form I will refuse to fill it out and will ask for all correspondence from them regarding attempted bank closures in writing and then I will start my small claim at 25,000.00

    IMPORTANT LINK TO EACH PROVINCES SMALL CLAIMS COURT AND FORMS
    http://www.paralegaladvice.com/scc/sccforms.htm

  13. Charl: No problem. I enjoy writing and I’ve been itching to get going on this particular project for some time. You can edit! 🙂

  14. For use in the Human Rights Complaint you are formulating, here is the write-up of my family’s / my son’s situation, lives compromised by the Canadian government’s implementation of the FATCA intergovernmental agreement signed with the United States, foreign law to override Canadian law and thus deeming *US Persons* in Canada to be second-class to any others in Canada, no matter their national origin or that of their parent(s).

    Carol Tapanila’s son was born in Canada to two US citizen parents a year before they became Canadian citizens. He was never registered with the US as a US Birth Abroad, never lived in the US, never had any benefit from the US. He cannot renounce his so-called *US citizenship* because of developmental disability, his ‘mental incapacity’ to understand the concept of citizenship. She has also been advised that a parent, a guardian or a trustee cannot renounce that so-called *US citizenship* on such a person’s behalf, even with a court order. He would, thus, be entrapped into US citizenship and all of its responsibilities and expensive administrative cost to have someone file numerous forms year after year, for no taxes owed. (This would similarly apply to ‘mental incapacity’ like age-related dementia or effects of a stroke or other brain injury.)

    The mother contends that her son would have no more ‘mental capacity’ to go through the procedure to prove his right to US citizenship and obtain a US social security number in order to file back tax returns and FBARs than he has to renounce that US citizenship. It would be a futile exercise since it comes back to the fact that he cannot renounce a US citizenship because of his ‘mental incapacity’. The IRS has stated that they do not determine one’s US citizenship – that is not their business. The mother holds that she has no US citizenship documentation for her son since he was not registered as a US Birth Abroad and he has not ‘laid claim’ to that *supposed* US citizenship, that he is only a Canadian citizen. That is the only thing that makes any sense as his family and his supports are in Canada, the country in which he has lived all his life.

    From the US Department of State Overseas Citizen Services, Legal:

    From: Kavaler, Howard
    Sent: Wednesday, May 07, 2014 9:55 AM
    To: caroltapanila
    Subject: RE: Question re US Citizenship never registered with the US
    Ms. Tapanila:
    If your son was born in Canada to two U.S. citizens, at least one of whom had a residence in the United States prior to his birth, your son is a U.S. citizen pursuant to Section 301(c) of the Immigration and Nationality Act. Your understanding of U.S. citizenship law is absolutely correct. U.S. citizenship is a status that is personal to the U.S. citizen and may not be renounced by a parent or a legal guardian. If your son seeks to renounce his citizenship, it will be incumbent upon him to demonstrate that (a) his action in renouncing his U.S. citizenship is the product of his own free will and (b) that he fully understands the consequences attendant to the relinquishment of his U.S. citizenship.

    …which agrees with the information from an immigration / nationality lawyer in Washington, DC, to confirm this son’s US status and give possibilities for his renunciation. The result was that her children were US citizens from the moment of their births. The following is information from that lawyer based on his conversations with the US Department of State: DOS persons have “sympathy” for such cases. However, the developmentally disabled person will have to have FULL understanding of what he’s doing; if any question of lack of comprehension and grasping meaning and importance of ramifications, they could NOT approve such a case. From DOS point of view, US citizenship is precious and they have therefore established fundamental requirements for “compelling reason”. Even though there is the risk that a person’s financial resources could run out before his/her life was over, they will never approve a renunciation for financial / economic reasons. DOS has NEVER had such a renunciation case approved due to “compelling circumstances”. Ms. Tapanila could sue but persons he talked with at DOS are SURE no one would ever win such a case as the courts view the discretionary action that DOS has would take precedence.

    Carol Tapanila is the Holder of a Canadian Registered Disability Savings Plan (RDSP) for her 40-year old son. That account and others she holds for him were identified in the Foreign Bank Account Reports (now FINCEN114) and Forms 8938 (from its inception) attachment to her US 2005 – 2012 tax returns; 2012 being the year that she renounced US citizenship and now has in her possession a Certificate of Loss of Nationality to prove to her local, Canadian “foreign financial institution” that she is not a *US citizen*. The RDSP is a disability account in which Canadians are encouraged to save for themselves or their family member(s) with a disability – to assist in paying for future expenses that generally exceed those for Canadians without such disabilities. It is an investment savings, for which the Government of Canada matches bonds and grants to what the Holder of the Plan contributes – so is partially Canadian-taxpayer funded. US tax has been paid by Carol Tapanila on this particular account as follows (in bold):

    1. If the sponsor of an RDSP is a US person then (US person analysis of the beneficiary is irrelevant):

    a. The income generated by the RDSP is taxed to the US person sponsor currently as it is earned

    b. The grant is taxed to the US person sponsor when it is distributed to the beneficiary
    c. US person sponsor must file 3520A annually

    d. US person sponsor must file 3520 annually

    2. If the sponsor of a RDSP (or RESP) is NOT a US person, AND the beneficiary is a US person then:

    a. The income generated by the RDSP (RESP) is taxed to the US beneficiary currently as it is earned

    b. The grant is taxed to the US person beneficiary when it is distributed

    c. US person beneficiary must file 3520 annually (no 3520A)

    Neither RDSPs nor RESPs are covered by the Treaty.

    Funds that came from the Canadian taxpayer meant for benefit to Canadians with disability, thus, end up in the hands of the US IRS. In the same manner, the RESP (Registered Education Savings Plan) also has a Canada Education Savings Grant component that is contributed by the Canadian taxpayer and which is taxed by the US government even though the US has absolutely no involvement in this: http://www.cra-arc.gc.ca/E/pub/tg/rc4092/rc4092-e.html#P9_59. Any US claims to tax these accounts is baseless. Nor should or does the US have any right to be the one to decide what tax advantageous arrangements a nonresident can participate in under another government’s tax regimen.

  15. @calgary411, I would definitely say that in this case, all domestic avenues have been exhausted – in TWO countries – one insists on confiscation and eternal fealty, and the other officially states that it ‘respects’ the ‘right’ of the US bully to do so.

  17. “From DOS point of view, US citizenship is precious”….they need to get over themselves. As glaringly unfortunate and tragic as Carol’s story is it sure gives clear anecdotal evidence for presentation to the UN.

  18. Before F.A.T.C.A. the U.S. was like any other panhandler, annoying but you could walk on by without toy, trouble. After F.A.T.C.A. the U.S. went from panhandler to a violent mugger who you couldn’t ignore.

    There is still no moral authority behind the mother’s claims. But now he has a scatter gun, 30% penalty, pointed at everyone’s head.

  19. Thanks, Charl.

    Everyone please remember, mine is representation of so many other families — it is their story more than mine as I know and have experienced this; I have pretty much decided and am determined what I will do.

    Other such families have yet to be hit with the very same situation. It is for them I continue like a broken record.

    And, yes, the “from DOS point of view, US citizenship is precious” smug exceptionality spurs me on too.

  20. Howard Kavaler from the US Department of State Overseas Citizen Services, Legal wrote:

    “U.S. citizenship is a status that is personal to the U.S. citizen and may not be renounced by a parent or a legal guardian. If your son seeks to renounce his citizenship, it will be incumbent upon him to demonstrate that (a) his action in renouncing his U.S. citizenship is the product of his own free will and (b) that he fully understands the consequences attendant to the relinquishment of his U.S. citizenship.”

    What outrageous B.S. that is! U.S. citizenship is clearly not a status that is “personal” to the U.S. citizen if the U.S. government can decide that a person must keep it regardless of their personal circumstances. That makes it a governmental status, not a personal status. Also, how can a person be expected to demonstrate that “he fully understands the consequences attendant to the relinquishment of his U.S. citizenship” if he cannot demonstrate that he fully understands the consequences of having that citizenship in the first place? How many of us “normal” people fully understood the negative consequences of U.S. citizenship before all this extraterritorial tax and penalty extortion began?

  21. AnonAnon,

    What outrageous B.S. that is! U.S. citizenship is clearly not a status that is “personal” to the U.S. citizen if the U.S. government can decide that a person must keep it regardless of their personal circumstances. That makes it a governmental status, not a personal status.

    Common sense went out the window. Should a parent or a guardian or a trustee be the better one(s) to decide what is best for such a person as my son? They make other significant decisions that will affect such a person’s well-being. Retaining Being trapped into US citizenship when there is US citizenship-based taxation law is detrimental to a person with a ‘mental incapacity’ if his parents, his guardian, his trustee are in the country where he has lived his life and where all of his supports reside.

  22. Exactly, calgary411. A mentally disabled person’s parent, guardian, or trustee should make decisions for the person, not the government.

  23. The U.S. will only acknowledge a legal guardian/trusteeship order when itccomes to making sure that taxes are filed and investment rules are observed. Trusteeship/guardianship is a door that only swings one way.

    The system can never admit that it does real harm. C.B.T. is a sacred cow beyond any criticism of self examination.

    As a parent I have an exclusive fiduciary duty to my disabled child and not to the U.S. As long as he lives in Canada he is exclusively Canadian. There is no part of him that is in opposition to himself. He will not be a bifurcated person.

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