Liberty and justice for all United States persons abroad

The Isaac Brock Society

We are now preparing for the 2016 FATCA IGA Charter trial in Canada Federal Court

Posted on by Posted in Issues regarding US persons abroad 2,207 Comments

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.

2,207 thoughts on “We are now preparing for the 2016 FATCA IGA Charter trial in Canada Federal Court”

  1. @Wondering

    Ms Freeland worked in New York City as a journalist and author. She may even have a Green Card. One or more of her children may also be so-called “US-Persons” under FATCA if they were born while she was working there.

    Chrystia Freeland is my outgoing MP. I am registered to vote, as an expat, in Toronto Centre. Based on my last address in Canada, I will remain registered to vote in Toronto Centre. Due to changes in electoral district boundaries, Ms. Freeland will be a candidate in the neighbouring district of University-Rosedale in the upcoming election.

    Ms. Freeland’s US status has been discussed on here before. She has been back in Canada for more than 2 years now, and ordinarily one cannot maintain a US green card for more than 2 years abroad, tops. Of course, she would need to have “checked out” of her green card status properly, but is there any reason to believe she hasn’t done so? Someone who was at the summary trial and who posts on here regularly (not me) commented at the summary trial that it is relatively easy to “check out” of green card status. Any reason to believe this is still an issue for Ms. Freeland, more than 2 years after her leaving the US?

    Also the full “US taint” of having a green card doesn’t kick in until you’ve had a green card for 8 years or more.

    If she has children born in the US (very possible) that is a very different matter and would, I hope, cause her to be sympathetic to Brockers. She would NOT be able to renounce on their behalf while they are under 18. How she will actually react, of course, is anyone’s guess.

  2. The way to embarrass politicians is to get out an iPhone etc (perhaps a friend nearby while the politician is distracted and wear a wireless mic) and video the whole encounter and at least post it on YouTube and put the link on IBS perhaps with some commentary.

    It would create interest and perhaps some donations.

  3. Of special note to those in the EU. EU MEP Sophie in’t Veld has persisted in getting the EU to release certain documents regarding EU discussions with the US re FATCA. After long delay, something has finally been released:
    http://sophieintveld.eu/commission-discloses-documents-on-us-tax-agreements-with-eu-member-states/
    ’20 aug 15
    Commission discloses documents on US tax agreements with EU Member States

    Member of the European Parliament Sophie in ‘t Veld (ALDE/D66) requested the European Commission in March 2012 to publicly disclose all documents and correspondence regarding the American Foreign Account Tax Compliance Act (FATCA).’

    “…….The European Commission refused to provide the relevant documents to In ‘t Veld, asserting initially that it would be too much work to scrutinise all relevant documents before disclosure and that In ‘t Veld needed to specify which documents she deemed relevant. As it is impossible to make a selection as long as the documents are not disclosed, In ‘t Veld referred to the European Ombudsman with a complaint. In February 2014, the Ombudsman recommended that the Commission would reassess In ‘t Veld’s request. After more than a year, the Commission responded with the letters below. The disclosed (parts of the) documents should follow suit.

    FATCA – COM reply confirmatory application – Part I
    In’T VELD – PART II – Decision – Part II
    FATCA – COM List of documents – Part I
    List of Documents PART II
    …..”

  4. Here’s a revealing extract from In’T VELD – PART II – Decision – Part II. Catherine Day, writing the decision of the European Commission Secretary-General to Sophie In’t Veld’s access to information request:

    I recall further that, in my earlier decision of 28 August 2012 concerning your request for access, I informed you that the United States has explicitly requested that their documents be kept confidential, which implicitly extends to similar information contained in the documents of the Commission and of the Member States. Given that the negotiating partners have agreed orally to this confidentiality requirement, these parties expect this confidentiality requirement to be respected by other participants in the meetings such as the Commission, which has been copied on some, although perhaps not all, documentation. Even without being the subject of a written statement, confidentiality is a basic and well understood element of international tax treaty negotiations. The United States did not reply to the renewed consultation on the possible disclosure of their documents which the Commission conducted in March 2015, but there is no reason to think that the US position has changed in the meantime.

    Finally, when the Commission consulted the Organisation for Economic Co-operation and Development (OECD), the latter also referred to the international relations exception laid down in Article 4(1 )(a), third indent of Regulation 1049/2001 and argued that the disclosure of the documents would be harmful to the open and frank manner in which similar international negotiations are to be carried out in the future.

    In addition, the OECD raised a further argument for non-disclosure, by referring to its own rules and regulations, which according to OECD preclude the disclosure of its documents and exchanges. The OECD pointed out that the OECD Council Resolution on Classification and Declassification of Information provides that the security of information must be ensured in particular when it affects international discussions. For the purposes of the Resolution, official information can include correspondence. Further to that, Article 5 of the OECD Rules of Procedure provides that the meetings of OECD bodies are held ‘in private’. Accordingly, all documents and correspondence relating to such meetings should be held in confidence and protected.

    If only the United States and the EU were as concerned about protecting the confidentiality of US person’s financial data as they are about restricting the public’s access to information about their “open and frank” back-room deals. Same dynamic with TPP negotiations as well.

    Nevertheless, this reply clearly contradicts to the US Administration’s assertions that FATCA IGA’s are not international treaties and therefore not requiring Congressional review and ratification. Ms. Day most unequivocally refers to them as “international tax treaty negotiations.”

  5. We would not have been able to fund this Canadian lawsuit without the kind help of our supporters in England, who, like Canadians, are seriously impacted by their own so-called FATCA “agreement” with the United States.

    Yes, the UK’s Queen–who is also Canada’s Queen–gave direct royal assent to the UK-US IGA well before Canada signed on–making it difficult for Canada to say ‘no’.

    Of course, refusing royal assent is something that can appropriately done only in the most extreme of situations, when the very sovereignty of the UK is at issue. I would suggest that this was such a situation.

    If I may paraphrase Brian Mulroney: the Queen had an option. She could have said no.

  6. Thank you very much for the EU information. I am not aware of any EU sites such as IBS.
    Of course EU fragmentation is a problem, as is a history of secrecy. And of course the EU bureaucracy per se. It is sickening to note that people well versed in multi-national dealings, all of them experienced in living in multiple countries, would so easily accept hellish rules such as FATCA. It is possible that they are naïve and misinformed. Naïve about US bullying, and not informed of citizenship based taxation. People in the EU move around freely, and only do tax declarations in their country of residence. It is true, however, that automatic exchange of information (i.e. what accounts do you have in other EU countries) is becoming the norm. Same kind of paradox as for the US: you have the right to utter secrecy in your country of residence, but not for your foreign accounts.

  7. EmBee: Thank you so much for directing “no name” to my “Introduction to FATCA for Canadians”. I was about to post the link myself when I saw your lovely comments. Thanks!

    Pacifica: Thank you for creating the new sidebar link for Canadian Election Resources. Wonderful!

  10. Check this out — a lawsuit has been filed against the IRS for a breach of data.
    http://fortune.com/2015/08/21/irs-sued-data-breach/

    Here’s an excerpt:

    Two taxpayers filed a suit seeking class action status against the Internal Revenue Service on Thursday in response to a massive data breach impacting hundreds of thousands of people. Hackers reportedly stole personal data including Social Security numbers and accessed completed tax returns.

    The hackers were then able to use the information to file for bogus tax refunds, resulting in criminals obtaining $50 million in federal funds. Although the IRS originally said that the data breach affected 104,000 people, it revised that number this week to 330,000 people.

  11. @George: I requested the CD. It must be approved by Justice Martineau before release.

    I was told on Tuesday my request “is before the court”–meaning it has been submitted to Justice Martineau but not yet approved.

    I asked for consent to post on line. This is also a requirement.

    The two Federal Court employees to whom I have spoken said they thought this was the first time they have received a request to post on line. They said even a request for a CD for personal use is “rare.”

    In my request, I said if it is not approved for posting on line that I would like a CD for personal reference.

    I stated in my request that I am the Chair of the Legal Challenge Committee for ADCS, which is funding the lawsuit.

    Neither of the employees was able to tell me how long a decision may take.

    A transcript of the hearing is $1008.00 plus tax.

  12. Just got back from two busy days at work. First off, thank you everyone for the words of support. I know any one of you would have done the same thing I did given the circumstances and the fact that this dangerous man was here locally. Thanks to Blaze for letting me know when and where he would be. Harper now knows we are not myths and I hope he realizes what he did to Canadians and the fact that we will fight back. It appears he has his own “legal” issues brewing and even today, he seems to be more and more in the forefront of the current government scandal in the courts as we speak. The T-shirt printer sent me an email with the preview. They will be printed sometime tomorrow and I will pick them up. I will see if blaze can post pictures of the front and back on here for everyone to see. My main objective now will be to get the word out. We have a federal election going on and time is very important to get the Cons heaved totally out of power. I met with my local Liberal candidate and it may surprise you what she found. First off, she spent a full day looking into Fatca along with her husband who is her campaign manager. They were astounded at the whole thing. She contacted Liberal head office and was sent some information. The Liberals will FULLY restore the “Court Challenges Act” if elected. That was the only concrete thing she offered. The wording on the IGA was that it didn’t protect Canadians and they would work to protect us, so nothing concrete there. I will be having a meeting with my local NDP candidate possibly Sunday morning and I just might wear my new T-Shirt. I slao left a written request to have a meeting with my CON candidate and I bet you can guess what apparel I will choose for that. Again, thanks for your support. Gwen and Ginny, I am right beside you and your families along with every other victim. May the fight go on!

  13. @JAN OMG! That is perfect evidence. Now, if Canadian’s data was breached in the USA, where in the IGA does it say how we would be reimbursed for damages?

  14. Funny, tonight donald Trump said their media was dishonest. Wow, pretty much covers OUR Canadian media as well except he left one thing out about Canada’s media. Canadian media is also “controlled”!!

  15. “I know any one of you would have done the same thing I did given the circumstances and the fact that this dangerous man was here locally.”
    @ NativeCanadian
    I don’t think I’m that brave. Just meeting with the office assistant of our MP (back in 2013) made me queasy, although I did manage to say most of what I intended to say and left her with plenty of information. She listened sympathetically but her boss (a Con) could not be deviated away from the party line.

  16. Good to hear from you again, Native Canadian!!! And my thanks again! (I agree with what you say about the Canadian media — an excellent journalist would have taken the lead in hearing you say to the Prime Minister “GET FATCA OUT OF CANADA YOU’VE DESTROYED MY FAMILY” to get a comprehensive compelling story relating to your statement! My comment on the story that appeared in the London Free Press article would have remained.)

    …and appreciated your report about the meeting with your local Liberal candidate. I got this note from mine today (answering an email that I sent after his door to door meeting with me last weekend — at which time he said (as I had asked him previously) the Liberals wouldn’t be announcing a policy regarding the IGA that legislated US FATCA law in Canada.

    Sent: Friday, August 21, 2015 5:49 PM

    Subject: Re: Thanks for stopping by…

    It was great chatting with you again Carol. Thanks for keeping me (and the Leaders) informed about this important issue.

    Matt

    —

    Federal Liberal Candidate for Calgary Confederation

    On Sat, Aug 15, 2015 at 8:33 PM, *calgary411* wrote:

    Here is further information regarding the start to Canadian litigation if you have an interest.

    Three links to observations from Days 1 and 2 and beyond of the summary trial held in federal court, Vancouver: https://isaacbrocksociety.ca/2015/08/05/from-adcssovereignty-fatca-lawsuit-is-underway-thoughts-on-day-1-and-more/

    Alliance for the Defence of Canadian Sovereignty litigation updates (summary trial took place on August 4 and 5); decision on this (which is NOT the main trial) hopefully on or before September 13, 2015: https://isaacbrocksociety.ca/2015/02/17/adcs-adsc-litigation-updates-key-actions-milestones-and-timeline-estimates/.

    *********
    You may well be the candidate in this riding to get my vote because I will (and so will my family) vote the best way we can to strategically defeat any Conservative.

    Just for the record, each of the main Party Leaders has received continued information on and has been asked for their policy regarding the IGA that brings FATCA law to Canada to override Canadian laws and the Charter of Rights and Freedoms that should be for EVERY Canadian. There is no reason that any of them can claim they don’t know about this issue – if that is the case, it is because their ears and eyes are closed. The message, then, is that it is the well-being of the banks and the Canadian economy (definitely important) before the rights of a specific group of Canadians, their families, their business partners – now second-class in Canada by virtue of where they or their parents were born, discrimination by nationality. And each of them must then believe, as the Conservatives, they are Canadian and *we* are US citizens who happen to reside in Canada.

    Thanks again,
    Carol Tapanila

    I have sent an email to my NDP candidate, but have not yet heard back from him.

  17. I wonder how difficult it would be for the federal Liberal Party (or the NDP for that matter) to come up with a policy statement concerning the FATCA IGA should Justice Martineau place an injunction against it (or portions of it) come September 13. Me thinks not very.

  18. @george @Fred @MuzzledNoMore @nervousinvestor @EmBee @Jan @Blaze @NativeCanadian @calgary411 @bubblebustin

    Why the radio silence regarding my comments about Canada’s Queen?

    Do you not understand that when the Queen signed the UK-US IGA, Her Majesty issued a direct assault on @calgary411’s son?

    Why can you not speak out against this? Speak out directly against the Queen?

    It isn’t just Harper’s fault. It is also the Queen’s fault.

    If you agree with me…if you are willing to side, as I do, with @calgary411’s son and against the Queen–then speak your views in public.

    Stop trying to hide.

  19. @Dash
    I am not a monarchist myself, but I don:t understand why you are critical of the Queen?
    Britain is a parliamentary, constitutional democracy. The Queen is allowed no political power, she is not even allowed to express her views, she is purely a figurehead. She did not sign the iga. The gov did, in her name, whether she liked it or not.
    The British Gov of Mr Cameron is the one you should be attacking.

  20. @NativeCanadian

    Media. I am convinced that MOST (not all) in the media are (mind) controlled by misinformation disseminated by the Fabian Society / Socialist International through their web of influence in Universities and elsewhere. Entities like the BBC for example are totally controlled by their “Big Brother”.

    Excellent work with your Liberal candidate and hopefully as good or better results from the NDP one.

    Keep on Truckin’.

  21. @Calgary411 @Bubblebustin’

    I think that both the Liberals and the NDP are concerned that they will lose political donations form the Financial Community in Toronto is they come clean publicly. Can we spell corruption?

    Remember also that the Liberals have US Democratic party activists “advisers” on their Team. The US Democrats (Levin, Obama etc) are the ones who imposed FATCA.

    How sick is that ?

  22. @Dash

    I have indeed been “off the air” for the past few days as my best friend died in a tragic car accident this week … you can read about it here

    https://jamaicagleaner.com/article/news/20150820/legal-fraternity-shocked-death-attorney-george-thomas

    http://jamaicagleaner.com/article/lead-stories/20150820/cornwall-bar-president-george-thomas-killed-traffic-crash

    http://www.jamaicaobserver.com/news/City-mourns-for-prominent-lawyer-who-dies-in-car-crash_19224967

    http://www.jamaicaobserver.com/news/-George-Thomas-served-his-parish–community-with-distinction-_19225078

    I am a Monarchist bit do agree with you that the Queen needs to be better advised BEFORE granting Royal Assent to Acts of Parliament presented to her.

  23. Dash: I don’t blame the Queen herself but the Governor General is certainly among the culpable parties. Some of us wrote to the GG last year urging that Bill C-31 *not* be signed into law as long as the FATCA IGA was part of it.

    But, in all fairness to your point of view, the GG *is* the Queen’s representative and Bill-31 was, indeed, signed into law in her name making her culpable by association. But I tend to prefer Heidi’s analysis of the situation. We all know that the British government is in FATCA-bed with the U.S. bigtime! It was the first to sign on!

  24. Thanks for speaking of my son’s (and such others’) situation as an assault by the Queen, Dash.

    I wonder what The Queen knows about IGAs for FATCA (or, if she knows anything now, what she knew when omnibus legislation received Royal Assent) in the UK or other countries like Canada. Although I hoped The Queen or her representative in Canada, The Governor General, would ride in on the white horse and nix Bill C-31, I knew the last step for that omnibus bill was not one we could pin our hopes on for review and change by the Crown.

    How did it work in the UK?

    Royal Assent = Pomp and ceremony

    http://parliamentum.org/2011/12/12/no-discretion-on-royal-assent-and-the-governor-general/

    Royal Assent occurs automatically. The Prime Minister advises the Governor General neither to give nor withhold Royal Assent; the Prime Minister only determines the scheduling of the ceremony at which the Governor General gives Royal Assent. According to the Manual of Official Procedure of the Government of Canada, “The Government Leader in the House, in consultation with the Prime Minister and Leader of the Government in the Senate, initiates the decision to give Royal Assent to bills.”[7] Next, “when a decision has been taken [the Leader of the House] informs the Prime Minister and the responsible Assistant Secretary to the Cabinet of the date and time.”[8] The Manual treats Royal Assent as an automatic royal certification that the bill has passed both Houses of Parliament; the Prime Minister does not advise the Governor General to grant or withhold Royal Assent, but merely helps organize the ceremony. If the Prime Minister could advise the Governor General on Royal Assent, our system of responsible government would collapse.

    One of my comments at the time was:

    I haven’t, so far, found anything to indicate the final step of Royal Assent by the Governor General. I guess we’ll know that when we hear from the media that Bill C-31 has received Royal Assent, having skipped all of the other important discussion and process of this omnibus bill. Yes, I too, know NorthernShrike is right — it is all now just pomp and ceremony.

    From the past…
    https://isaacbrocksociety.ca/2014/06/20/implementation-of-the-us-fatca-iga-has-been-given-royal-assent/

    UPDATE, compliments of “Hazy”:

    Royal Assent happened on June 19th. Here’s the June 20th press release from Finance:

    http://www.fin.gc.ca/n14/14-085-eng.asp

    No mention of FATCA in the press release. They must have forgotten!

    This is a post from my comment at another post here. (Some may not have seen that comment since there have been technical problems of some sort for several seeing comments on that thread).

    Hansard Transcript, Canadian Senate Debates, June 18, 2014 brought interesting statements on the audacity of having to vote on so much that is in this (and other) omnibus bills, but Third Reading occurred.

    And, now Bill C-31 will go to has been given Royal Assent by Canada’s Governor General. for Royal Assent. We may not know when until we read it in the Canadian media.

    Too bad our media has essentially skipped the process before Royal Assent of another Canadian omnibus bill, that includes (among other things that other items therein should be separate bills on their own merit) implementation of the US FATCA intergovernmental agreement (IGA) that Canada signed with the US.

    Update: The Canadian government forgot to mention implementation of the FATCA IGA in their press release. So, I guess we cannot blame the Canadian media for not reporting it — or can we?

    Hon. Pierrette Ringuette expressed what most of us feel. Listen to her and her colleague, Hon. Céline Hervieux-Payette, who seconded her motion. Start at 4:27:30 (Pull the “indicator” to this point to listen.)

    Also Senator Day stated earlier in this Senate Debate:

    There’s another piece of legislation, still in Bill C-31, still under the rubric of privacy versus disclosure between agencies, and that relates to the Canada-U.S. agreement in Part 5 of this bill. Part 5 is what we talked about earlier on. Part 5, the Canada-United States Enhanced Tax Information Exchange Agreement, was an attempt by the government to avoid, to a degree, the oppression of earlier legislation that the United States had. We have all received many emails about having to make available — the banks have to go through a due process, and for any potential U.S. taxpayer, the information of all the accounts they have must be sent to the U.S.

    Canada has entered into an agreement with the United States, and Part 5 deals exclusively with that, but this is one of those acts within an act. What really bothered me is that they want us to pass the act, at clause 99, that includes the words “as amended from time to time.” So we adopt a piece of legislation that adopts an agreement between Canada and the United States, and that agreement between Canada and the United States may, from time to time, be amended by the executive branch. We will not see that as legislators. We will not say, “That is far too oppressive on the people of Canada and Canadian citizens who might be doing business in the U.S. and therefore might become subject to U.S. tax payment requirements.”

  25. Regarding dear EmBee’s comment quoted in the main post starting with ““I’m just thinking of all the supporters of the ADCS-ADSC lawsuit who helped blow in that delightfully, rightfully, up-coming storm.”

    I concur. The world’s financial institutions went all woozy under threat from the USA and then pressured their own Governments worldwide to throw our Charter Rights and Sovereignty under the bus. This is absurd. If the world say together to the US that such action will not stand and the US insists to continue then measured diplomatic and economic responses could have been (and still could) be crafted. The US cannot exist on its own … it has tried this before and failed. The rest of the world can indeed exist without the US. It would be best however if the US could be persuaded to see that it is not in its own interest to seek to impose economic sanctions on the entire world.

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