UPDATE SEPTEMBER 19, 2015: SEE ALSO DISCLAIMER AND LITIGATION UPDATES.
[This post, which began in May and having over 1000 revisions and 2000 comments, is being retired from service and updates. It lived through the success of reaching a total of $500,000 in donations from our kind, dear supporters who had little money to give, the hope and disappointment with the summary trial decision, and the certainty that we are now finally moving on to the Charter trial.]
CANADIAN CHARTER TRIAL UPDATE:
— We have instructed the Arvay team to prepare for the “Constitutional-Charter” trial. This means that our focus now, as it was in the beginning of our lawsuit, is on the Charter trial.
Unless there is a new expense in the future that we have not anticipated, the monies from your donations will be sufficient to take us through the “constitutional-charter” trial in Federal Court. However, to pay other legal bills we will need additional donations from our supporters, and a request for donations will appear on another post soon.
OUR LITIGATION HISTORY:
One year ago, on August 11, 2014, Litigator Joseph Arvay filed a FATCA IGA lawsuit in Canada Federal Court on behalf of Plaintiffs Ginny and Gwen, the Alliance for the Defence of Canadian Sovereignty (en français), and all peoples.
Because of a Government delay we initiated a “summary trial”, using a portion of the arguments, which offered the possibility of preventing private banking information from being turned over to the IRS before September 30, 2015. See Alliance’s Claims, our Alliance blog, and AUGUST 4-5 SUMMARY TRIAL FILINGS in LITIGATION UPDATES.
The second phrase on my t-shirt will be “CANADIAN government defends the rights of a FOREIGN government to enforce THEIR laws in CANADA against CANADIAN CITIZENS!”
@Georgie
re: “To refer to a Canadian Citizen resident in Canada as anything other than a Canadian Citizen is downright racist and disgusting.”
Well, I think so, but when Canadians actually refer to THEMSELVES as other than, and take offence that you take offence, well, what can a kitty say?
@FuriousAC
Seriously , on this entire planet earth, two women in Canada and their lawyers and supporters are the only thing holding back the devastation that awaits us all.
Hear, hear and this is why I’ve chosen to place my focus on the FATCA fight–rather than any of the other things that I’m aware are going on–for now. It seems to be the only game in town regarding resisting any of this stuff. Well, there is the newly filed US effort, but the two efforts seem to have turned out to be closely connected in practice, with @Stephen Kish having served as a director on one effort and a plaintiff on the other.
@LM…RE: any bank can screw up
Yes, I think FATCA will be a growing nightmare. Unbelievable that the lucky ones are the ones who have been able to renounce this toxic US citizenship.
…and bravo to Stephen!
@George — Reading your comment above, about the DA position paper on FATCA, I wondered did they really say that?” They did, though they didn’t refer to the correct form. At least I assume they really mean 8938, which almost duplicates FBAR, except that fewer people would file 8938 because of higher thresholds. So instead of the bank ratting you out, you become compliant and basically rat yourself out. And this, they say, “would surely increase” the percentage of compliant Americans abroad.
“In order to claim the Safe Harbor [i.e., Same Country exemption from FATCA reporting] Americans Abroad will have to file Form 8939 *with their tax return*. [in italics] That is, you’d have to become US tax compliant in order to use the Safe Harbor. This would surely increase the percentage of tax compliant Americans abroad.”
Form 8939 — Allocation of Increase in Basis for Property Acquired From a Decedent
Form 8938 — Statement of Specified Foreign Financial Assets
As relevant place as any for this:
Moodys Gartner Blog – “An introduction to FATCA and analysis of Canada’s legislation Published on August 11, 2015, by Roy A Berg JD, LLM (US TAX) and Paul Barba JD, LLM
Donate: http://www.adcs-adsc.ca/
Re: Moodys Blog “Canada … may have unilaterally overridden an international agreement.”
Moodys thinks Canada has unilaterally overridden the IGA. It’s a paltry “agreement”.
Well, let’s go that one better.
Allison Christians says that the IGA is a U.S.unilateral override of the Canada-U.S. Tax treaty. Quote:
“I understand FATCA to be a tax treaty override that is not cured by the IGAs, and that I understand the IGAs to lack validity as legal instruments under US law.”
http://taxpol.blogspot.ca/
Where is the hand wringing about TAX TREATY OVERRIDE by Roy Berg?
Words cannot convey the disgust and contempt that man deserves.
Roy Berg is nothing more than an unscrupulous parasite feeding off his affected hosts.
Roy Berg, with a much more intimate knowledge of tax law than any of us, knows full well how much FATCA, the IGA, FBARs adversely and UNFAIRLY affect everyday people. These laws are immoral and unethical but instead of speaking out against bad laws, Roy Berg has instead decided to embrace the with fervor. Roy Berg is using them to HIS full selfish advantage for personal gain off the backs of others. This type of culture is parasitic and amoebic. If Roy Berg had half a spine he would be voicing opposition to this crap forced down people’s throats and would of been sitting behind the
plaintiff lawyers Arvay instead of the government counsel. Keep it up Roy, we all know where your amoebic kind stand.
Regarding Roy Berg … and his opportunistic ilk … and Harper’s craven toadies … and the faceless bureaucrats at Department of Finance keeping the FATCA trains running on time:
“Scorn and defiance, slight regard, contempt … ”
(Duke of Exeter, HENRY V)
The best expression of contempt for these parasites is to top off the ADCS defense fund.
The legal team have proven their worth, and the brave plaintiffs and tireless organizers are unsung Canadian heroes.
If each of the supposed 500,000 Canadians whom the US claims are “US persons” contributed only 2 cents ($0.02), we would be over the top!
I am extremely happy to see some (new to me) names appearing on the Brock site and to see the return of others who I dont remember seeing for some time.
Never underestimate the amount already contributed to this effort …. by many persons who are not of very deep pockets at all and many with limited incomes. Many of us are also grandparents with limited options. The effort to date has been heroic and is not yet over … the heroes persist in their determination.
Keep On Keeping On good people. In the fullness of time Karma is rough on evil doers.
I am disgusted by the arrogance displayed in Roy Berg’s Blog. Judging from the stench it seems to me as if he is passing an ill wind given that Personal Canadian Trusts have been allowed to escape his grubby fee billing software.
As someone in the know said to me when they learned that Berg was offering the Canadian government advice – if Berg’s the best they can get, that’s good for us.
I don’t find there’s a great deal of difference between being identified by others as someone negatively affected by the FATCA and CBT in Canada, than self-identifying as a US citizen when my identification allows me to fight FATCA and CBT where it originates – that is in the US.
This is using duality to fight a common cause, NOT undermining either side’s effort, IMO. Justice Martineau seems to recognize that Canadians are Canadians in spite of any other citizenship we hold – why can’t our fellow Canadians do the same?
@George
From what I have seen in the U.K., there is a big distinction between non-reportable accounts and reportable. In the last few months, I have opened two non-reportable accounts, one shares, one cash, with no difficulty. They didn’t even ask about U.S. indica. The problem areas include investment accounts that are reportable and, of course, mutual funds.
I guess we’re different enough to make donations, but not enough to call ourselves “American”.
Allison Christians explains in detail how FATCA & the IGA are a UNILATERAL TAX TREATY OVERRIDE by the U.S:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2407264
For contrast, Mr. Berg’s concerns about Canada’s unilateral override of an international agreement (the IGA) are linked in Calgary’s comment above.
@Bubblebustin,
To that I say:
https://m.youtube.com/watch?v=29g57XTYgLE
@ Bubblebusting
“As someone in the know said to me when they learned that Berg was offering the Canadian government advice – if Berg’s the best they can get, that’s good for us.”
I’m not so sure about that. Think about a mother bear protecting her cub. Now think about a condor with a club protecting his mother lode. And I apologize for that very snarky remark but I hate to see anyone profit from another person’s misery.
I’m going to put this comment to Stephen into a comment on this post at Brock so not to lose it because it, to me, is so TRUE. It is also a reason that this will NEVER be a fair and level playing field. We too, our being an *invisible minority* in Canada, have some *exceptionality*. The Canadian government and the Charter of Rights and Freedoms needs to protect ALL Canadians:
THANKS FOR DONATIONS FROM TODAY’S SUPPORTERS IN SWITZERLAND, NEW ZEALAND, AUSTRALIA, UNITED STATES, AND CANADA. Getting a lot closer now to paying off the bill.
FuriousAC said: “…It is a travesty that we still owe on the bill to fund this very righteous fight for our freedom.”
— One supporter just emailed me on the point that the number of supporter-donors in Canada is relatively tiny. She suggested:
It is really distasteful to me that a reason not to donate to this cause of standing up for rights and this country’s sovereignty is that one has an *exceptionality* from others who have chosen Canada as their home. That is my gut feeling why we are not getting the donors better able to help financially and with a stronger voice. I can understand on some level doing what one has to do to protect one’s interests — the hell with everyone else. It just saddens me that there are those actions before joining together to effect change in unjust law for everyone, not just oneself. No wonder *Congress has spoken* seems acceptable.
I am Canadian and have been so since 1975 when I became a Canadian citizen. My whole family is Canadian — some of us even now officially, with one of those expensive CLNs. I will never forgive this country for calling me and others like me and my family *US citizens who happen to reside in Canada*. That is what it’s all about for me.
Calgary, you can now add “Switzerland” to today’s list.
Thanks, today’s Switzerland donor — and to Stephen for updating so quickly. Thank you and my deep respect, donors from the rest of the world to this Canadian litigation.
In 2008 I donated (modestly) to Obama’s campaign, in form of time and money.
In 2014 a bank based in the EU decided I was no longer French, but rather a US person, based on my birthplace, and terminated my account.
In 2014 and 2015 I have donated to this this present cause, fighting FATCA.
In 2016 money I may have contributed to Democrats will be 100% (Yes, Democrats, 100% — and I don’t think I am alone) diverted to causes devoted to getting rid of FATCA and eventually citizenship based taxation.
GO IBS!
@LM
There’s been an appeal made to a specific group of Canadians for donations who perhaps don’t identify as being US persons, only because others – not they – have identified them as such. By doing so, we are giving validity to US personhood in Canada by singling them out for donations.
At one point during the trial Justice Martineau warned Mr Taylor about introducing the concept of dual citizenship. Dual citizenship doesn’t exist in law. That’s the point – I can call myself the Queen of Sheba and it shouldn’t matter. It’s whether I’m Canadian or not that should.
Also, referring to myself as having US citizenship doesn’t change the fact that in law, dual citizenship doesn’t exist. It doesn’t and shouldn’t get me better or worse treatment in Canada. Any effort to annihilate either citizenship in the context of either citizenship is misplaced, and really a misguided effort to create dual citizenship in order to condemn it. A straw man argument.
The choice I make in referring to myself as a US citizen shouldn’t undermine the position of those who don’t see themselves as US citizens or under the jurisdiction of the US. During the trial Mr Gruber referred to himself as a tax compliant US citizen. Would that make a difference in Canadian law for the judge? No. Justice Martineau might ultimately determine (heaven forbid) that the Canadian government has an obligation to assist the US in its tax enforcement through the IGA. Where he might (I hope) have a problem is in treating Canadians differently from each other.
@bubblebustin
Dual citizenship doesn’t exist in law.
I agree and one of the important outcomes I’m hoping for from this lawsuit is that the courts will also firmly come down on the side of agreeing that dual citizenship has no standing in law. I don’t remember Justice Martineau correcting the gov’t lawyer for resorting to using the concept of dual citizenship, but I’m glad you remember that and I think that is a good sign.
Looking at the online forms for various banks, it seems that some banks are more respectful than others of the concept that a Canadian in Canada is Canadian-only. It seems that the banks with a large US presence–eg TD–are willing to run roughshod over the rights of alleged “dual citizens” whereas the banks with a lower profile in the US–eg CIBC–are more respectful.