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.
Regarding the litigation updates
From the Gov’t:
“2) Canada confirms that it has not yet exchanged information with respect to Reportable Accounts pursuant to the Intergovernmental Agreement…. normally a confidential matter….”
What does “normally a confidential matter” mean???? Does that mean taxpayers whose information has been exchanged have no right to know about it??? Are they only telling us because of the current litigation, but under normal circumstances the taxpayer has no right to know if their private account info was exchanged? Sounds fishy to me.
Wondering: I agree with EmBee about posting your TECS information in the “Important Information” section. I’ve heard about this process but had never read such detail about it. Thank you for taking the trouble to dig it up!
@Marie
If the US asks for info on a particular Canadian person, the CRA hands it over but a CRA employee must go through protocols to get info on a Canadian taxpayer in Canada to use by CRA. I also know that the US has handed over names, either by request or not, to the CRA. They never inform u of any of it unless they find something wrong.
Someone in Canada I know had an account in the US & they were fined for not reporting it to CRA… fines were a few hundred bucks… not the amt US persons are being slammed with to try to clean out our savings…
@EmBee
DEAR ADMIN OR SYSOP
Please feel free to re-post the publicly available TECS info in the “Important Info” column.
FYI – here is a link to TECS process from the IRS on-line manual – again this is in the public domain, although parts have been redacted by the authors.
http://www.irs.gov/irm/part5/irm_05-001-018r-cont01.html
It is – by any description – an arduous process with a lot of investigation and due diligence and paperwork. It also is not an “arrest at border” warrant – it is information sharing about a traveler’s ultimate destination.
I posted this in part to expand on a few previous TECS system comments – also to illustrate how unlikely it was for so-called US persons who are citizens of Canada to be “arrested at the border” because they had not filed US tax and information returns since moving to Canada as a child.
There is a CAMPAIGN OF FEAR around this issue, with urban myths ascribing practically supernatural powers to US agencies – agencies that in reality are demoralized and stretched to the breaking point due to poor leadership, fund starvation and staff attrition. Agencies that can barely manage the essential routine work that is in front of them, never mind pursuing complex, dubious and essentially noncollectable claims against citizens of other countries in foreign courts. I leave it your judgement how likely this is to be instigated against untold hundreds of thousands of so-called US persons in Canada
Hi Wondering,
I was waiting yesterday, thinking you’d be re-posting it on Entering the US thread under Important Info. So, I just did it now (with credit to you, of course).
With our software the admins are not able to move or copy a comment to a different thread — we have to cut-and-paste it as a new comment, which is what I did. If you’d like to do that and post it yourself, please feel free to do so, and I’ll delete mine.
Thanks again for this important information!
@Stephen Kish
It is good that we got the timing of when data would be handed over–if this isn’t stopped–clarified as it helps to frame, very specifically, what Arvay and team will be asking the court to do in the hearing.
I do have a couple of questions right now if anyone knows:
The summary trial is often described as an alternative strategy to seeking an injunction. However the plaintiffs’ motion on page 2 makes specific reference to seeking an injunction:
“An order in the nature of a permanent prohibitive injunction…”
So it seems (to my untrained eye) that the summary trial is more a specific method of seeking an injunction (among other things) as opposed to an alternative strategy.
Second question is what happens if the gov’t is in the middle of an election campaign when a decision is made on the summary trial. This scenario actually seems quite likely given the anticipated timings and the expected fixed date of the election.
Thermometer is beginning to rise. A reminder to send another donation.
Rocco Galati on Amanda Lang this evening, inspires litigation juices, have a listen.http://www.cbc.ca/player/News/Business/The+Exchange+with+Amanda+Lang/ID/2666703865/
There has been a lot of action on this thread over the last week. Dates for the summary trial have been set, motion records for the trial can be viewed (Volumes 1-4), and it really feels like the wheels are in motion. But I’ve noticed that the thermometer has been a little slow getting started for the next retainer. For those of you still considering a donation, please do.
Even though we all know in our hearts and minds that FATCA enabling legislation is a clear violation of our Charter, as well as all of the Treaties and Income Tax Acts that Allison Christians talks about, it’s still going to come down to what the administrators posted at the top of this thread:
“a Ginny and Gwen win, as Tory Government admits to us in its Response, has “the potential for crippling tax and commercial consequences of non-compliance with FATCA [extortion]“”.
To me, that means despite what all of the constitutional experts and law professors have to say, it will probably come down to whether or not our government should sacrifice the few to save the many.
In other words, we have long fight ahead of us. Give generously.
@Marie:
This is not about ‘sacrificing the few to save the many’ It is ALL about sacrificing sovereignty of an entire country and all the people in it to save the BANKS.
@All:
And just what IS Sovereignty?
The ability of a people to determine through democratic process their own destiny. To elect those who are to serve on behalf of the people who elect them. And to determine that the borders of their land is secured against invasion. Either physical invasion or infiltration by means other than actually stomping across the borders of a nation. Sabotage by means of sending money to undermine election processes. Sabotage by means of covert efforts to influence the halls of political discourse whether it be federal or provincial or local city.
AND financial infiltration via threats of sanctions to twist arms to bend an entire country to the will of a foreign entity.
This is how wars are conducted. ANY war. Today our Front Lines are in all areas except the actual boots on the ground in military uniform crossing our borders with tanks and guns.
And if these forces that have infiltrated the nation in these various and nefarious ways do not get their way in all of these areas who is to say
what form their next effort will take?
For a country as small as Canada to fight international forces , especially against a huge ‘ally’ , who can predict a victory on any of these fronts?
As in the confrontation between David and Goliath, one must take careful aim and fire where it will do the most good.
David felled Goliath with one sling shot with one rock right between the eyes.
Our court case could actually turn out to be that one well aimed shot to the giant that threatens us all today.
For today it is so called ‘US Persons’ and anybody associated with them, under attack.
Should that succeed tomorrow it will be EVERYBODY under threat.
We are running now to obtain that rock to place in our slingshot before Goliath has a chance to devastate.
Our rock is the lawsuit and our ‘David’ is Ginny and Gwen and the entire legal team behind them as well as our champions who guide us through.
It needs to be a BIG rock , well aimed, for this is truly a GIANT adversary!
Donate today and often!
@FuriousAC
I hope the judges see it your way.
Again — just excellent, Furious AC. Thank you.
@Calgary411 and @All:
Would that every word written here at IBS since it’s inception was a Loonie.
We’d have no trouble at all funding our lawsuit and many others besides!
How relevant is this I wonder :
http://www.theblaze.com/stories/2015/05/08/unconstitutional-coercion-how-one-state-hopes-to-use-the-ruling-that-upheld-obamacare-against-the-obama-administration/
@Nervous :
Two words: STATES RIGHTS
Unconstitutional whether it is federal imposition of health care by imposing conditions or imposing conditions on the civil rights of human beings in slave states!
If redress is not sought and secured via the courts there will be another civil war in the US.
Might happen anyway considering the assault on so many fronts on Americans by the federal government.
It will either be fought and won legally or it will be blood shed.
God Forbid!
State Department on the release of Omar Khadr:
“We’ll leave it to Canadian authorities and the Canadian judicial system to make their decision,” he said Tuesday. “We don’t have a comment on it.”
http://www.theblaze.com/stories/2015/05/07/canada-just-released-a-former-guantanamo-bay-inmate-who-killed-a-u-s-soldier-heres-the-state-departments-reaction/?utm_source=Sailthru&utm_medium=email&utm_term=Firewire_Morning_Test&utm_campaign=Firewire%20Morning%20Edition%20Recurring%20v2%202015-05-08
FYI: Just in from Republicans Overseas FB page:
I wrote: “Many here, including myself, believe that a lawsuit against CBT (challenge to Cook vs. Tait) could speed things up for RBT. Would RO give serious consideration to supporting such a lawsuit?”
Republicans Overseas (presumably Solomon Yue): “If you raise RO $50K, I will hire Jim Bopp to study the case. I will not use FATCA lawsuit money to study the possibility of a successful challenge to Cook v. Tait since It is much difficult to reverse a SCOUS decision.”
As I wrote earlier, I am 100% in favor of not touching one single penny of the ADCS/ADSC FATCA lawsuit. However, the sooner we get started in challenging CBT, the better.
FYI: A recent dialogue I had with AARO President, Lucy Stensland Laederich, on the AARO FB page:
I wrote: “Some here, including myself, believe that a lawsuit against CBT (challenge to Cook vs. Tait) could speed things up for RBT. Would AARO consider supporting such a lawsuit?”
Lucy Stensland Laederich wrote: “If you can tell me more about the lawsuit, Walt Sanchez, and I can put it to the board on May 18… Thanks!”
I wrote: “Thank you Lucy. A CBT lawsuit is still only in the discussion and brainstorming mode, mainly at Isaac Brock with some chatter at RO. Some Brockers are very much in favor of a CBT lawsuit, but others want to keep the focus on the ADCS FATCA suit. My sense is that once the fundraising for the ADCS FATCA suit is completed (over 400K out of 500K raised thus far) fundraising can begin for litigating CBT. I cannot speak on behalf of any of the ADCS board members nor can I speak on behalf of the Isaac Brock Society, which is really more of a movement than an organization. However, I can honestly say that the discussions about a CBT suit and the postings about the weaknesses of the Cook vs, Tait court decision are gaining momentum. In short, it is only a matter of time before a lawsuit is initiated. ADCS and Isaac Brock have been very effective with crowdfunding. Therefore, I do not think it would be premature to at least mention to your board the likelihood of a CBT suit being launched and explore the level of interest AARO may have in supporting it. Having said that, please have in mind that the web-based discussions at Isaac Brock about a CBT lawsuit are following a similar trajectory as the discussions that made the ADCS FATCA lawsuit into reality. The people at Isaac Brock, Maple Sandbox and ADCS are very committed and also very courageous.”
@Furious
I often wonder whether the horse has left the barn. The politicians having seemingly ignored the bases on which the US was founded and the Courts not doing enough to defend that Constitution. I could not believe it when Justice Roberts voted to allow Obamacare by a process of contortion classifying a Penalty as a Tax and thus within the prerogative of Congress. I also am amazed at how broadly the Courts have defined Congress’ right to regulate commerce between the States.
@Nervous:
I think the horse has left the barn too. However, it may be the horse is a Clydesdale, heavy hauling or a Thoroughbred flying to win a race.
(Hopefully it is a racer for the heavy hauling, slow and methodical has had a huge head start)
Only a chance though. It seems they have SUCH a head start. When the Republicans won such an overwhelming result last November, I thought they might just have time to stop this madness. But, as we can see how the leadership has performed, there is not much hope legislatively. The Courts remain the last bastion to return to sanity and I have faint hope they will do their constitutional duty.
As at the Bundy Ranch, it might be that ordinary Americans will wake up and take steps, but I am seriously worried those steps will be too little too late. California devastation comes to mind.
And you are not the only one amazed at the tortured reasoning of Roberts re Obamacare a Tax rather than a penalty. There can be no doubt whatsoever what the reality defines that to be today.
I just hope and pray the country can be restored without bloodshed.
The longer it goes and the freer had they have makes that hope dimmer every day.
Supporting the ADCS Charter Challenge has been an existential necessity for me.
What makes me especially angry though, is that the funds I – and so many of you – are contributing to this essential legal action fund could have been contributed to homeless youth or medical research or summer camp scholarships for disadvantaged kids, or building an new arena or community centre, or a scholarship fund, or a high school soccer team.
This is another penalty imposed by a foreign state – the diversion of contributory funds that could have supported socially useful initiatives here in Canada. Instead we are forced to sue OUR OWN GOVERNMENT for cowardly capitulation to a foreign state’s most dysfunctional decisions.
I don’t mind spending the money – I feel lucky to have recourse to law and legal action – it’s not like that everywhere today. Again, Canada takes the lead.
But it angers me that this money could have spent in our communities, if the Harper government had done its most basic job: protecting sovereignty and the rights of Canadians.
Wondering: You are so, so right! The Harper government will be answering for its cowardice at the next election!
Just began reading the “Memorandum of Fact and Law”. It is a beast of a file! Pour yourself a cup of coffee, put on your fuzzy slippers, and settle in for a long read.
@Marie – I spent a goodly while this morning reading the said “Memorandum of Fact and Law”. It is indeed a fine document and lengthy too. No picky picky here ….. wish for the best outcome …. but REALLY want the Constitutional thing to be judged as well.
Scanned the “Memo of Fact & Law”
ADCS is certainly getting their money’s worth in the Arvay Team, this is a canny move.
I’m pleased to see Chua vs MNR [2001] has made it into the memo – that was a very important and relevant decision
Consider this previously-noted judgement as well… it’s another Canadian banking law court decision which ruled :
– In a conflict between Canadian law and the law of a foreign jurisdiction (US) where they are also present, Canadian banks must first be governed by Canadian law
– Canadian banks may not act as tax revenue collectors for a foreign state
Background – in response to US estate tax lien on TD US-based assets, the TD bank attempted to freeze and seize the Canadian account assets of an heir to that estate – but the Ontario court ruled against the bank
Van deMark vs. Toronto Dominion Bank [1989]
——————————————————————————
(quotes from the judgement)
“There is no dispute between the bank and Kenneth Van deMark and the dispute, if any, is between the bank and the Internal Revenue Service of the United States. The effect of what has occurred is that a Canadian citizen has placed assets in a branch in Canada of a Canadian chartered bank. The bank also does business in the United States and is being threatened by a United States authority.
“One must sympathize with the position of the bank but that position is the result of its election to carry on business in more than one country and that cannot influence the application of Canadian law.”
“In any event, while acceptance by the bank of a penalty imposed in the United States might seem to be a hardship, the effect of permitting the Ontario branches to defend the applicants’ claim on the basis of the bank’s liability in New York State would be to enforce indirectly a claim for taxes by a foreign state and one that has, so far as the evidence discloses, not even given rise to a New York or Federal Court judgment.”