Liberty and justice for all United States persons abroad

The Isaac Brock Society

Posted on by Posted in Issues regarding US persons abroad 162 Comments

If you are a Canadian citizen, you have the opportunity, and IMO the responsibility, to vote in the October 19 Canadian federal election. Certainly if you reside in Canada, and (with some restrictions I won’t go into here) even if you don’t.

This is Canadians’ opportunity to pass judgment on whether the government of Stephen Harper has stood up for Canada, for Canadian values, for Canada’s Charter of Rights and Freedoms, and for Canadian citizens. And to decide whether maybe some other party should be given the chance to govern our country, for the better (we all hope).

My personal advice is to vote for anyone other than the Conservative in your riding, either the candidate most likely to defeat the Conservative candidate, or if you can’t figure out who that might be, perhaps the party leading in the national polls as of today (the Liberals) and hence with the most credible chance of getting more seats than the Conservatives and hence forming our next government. Or, if you have an incumbent MP who isn’t a Conservative and whom you respect and like, vote for that incumbent.

If you can’t bring yourself to vote for anyone other than a Conservative, but are appalled at Stephen Harper’s idea of governance of Canada, take former Progressive Conservative Premier of Newfoundland and Labrador Danny Williams’ advice, and just stay at home and don’t vote this time around. Ignore that absurd recommendation by the Globe and Mail, which said the Conservatives deserve another mandate but Harper doesn’t. In our parliamentary system you can’t make that distinction, it makes no sense. Harper is the Conservative leader, if the Conservatives really wanted to they could have deposed him but didn’t, and trying to say the Conservatives aren’t to blame for Harper’s style of governance is utterly ridiculous. They’re all joined at the hip.

But VOTE. If you’re eligible to vote in this election and don’t, IMO you’ve lost any right to complain about the outcome.

I was born and educated in the US. After completing my post-graduate education, I entered Canada on a temporary work permit, moving to Canada because of the Vietnam war. Shortly after unpacking, I applied for landed immigrant status. A few months later I received in the mail an induction notice from the US Army; I drew a peace symbol on it in felt marker pen and mailed it back. As a result, I was indicted and a warrant was issued for my arrest (both were quashed in 1977 by the Carter amnesty). I became a Canadian citizen in 1975. In 1976, for the US Bicentennial I wrote a political letter to Henry Kissinger, then Secretary of State. In it I mentioned that I had "renounced" (I didn't then know of "relinquish") my US citizenship on becoming a Canadian, explaining in several pages my reasons for leaving the US. I also mentioned the fact that on my mother's side I am a descendant of a soldier who fought in Washington's army during the US rebellion, but now I was declaring my personal independence from the US and rejoining the British Commonwealth. Within six months, I received by mail a CLN recognizing my having expatriated myself from the US in 1975. I filed away my CLN and forgot I had it, until I found it after searching for it upon learning of FATCA and OVDI in August 2011. Since then, I proudly keep a photocopy of it with my passport (which is Canadian; I have never had a US passport in my life, nor will I ever). As a Canadian who long since ceased being an American and who has a CLN, I am not directly affected by FATCA or other US taxation outrages. However, my wife and several of her friends are affected, until their relinquishment CLNs (dating from 30-40 years ago) are issued. Also I have several close friends who were born in Canada of US parents and are considered by the US to be US citizens, though they have never lived in the US, worked there, earned income there, held property there, held US passports, or in any other way excercised USC and are horrified they might be considered US. I am active on this website and in writing my elected Canadian politicians about these issues, on their behalf. I am a retired former employee of the Government of Canada who faithfully and proudly served his adopted and adoptive country for many years. Updated September 2, 2012: earlier this week, my wife finally received her relinquishment CLN, State Department formal recognition that (in their exact words on the CLN) she "ceased to be a US citizen on" the date she became a Canadian more than 35 years ago. Mission Accomplished, to borrow words from my least-favourite contemporary/contemptible American. I will continue to monitor this website from time to time to see if I contribute useful information or opinions, but my wife and I are determined to regain our lives after the past twelve months of angst. Best wishes to all of you on this website in your odyssey toward freedom from the US.

162 thoughts on “October 19 is Election Day in Canada”

  1. Let’s give Justin the benefit of the doubt bout the IGA, shall we, instead of writing him off at this point. Obviously, Justin has NEVER learned THE TRUTH about how the IGA Harper signed undermines protection of the Charter of Rights and Freedoms–the crowning achievement of his father, Pierre– purely to accomodate a over-reaching foreign law that was underhandedly sneaked into a bill (Harper-style). After all, his party was not the official opposition and he’s not a lawyer, unlike his father, so he probably didn’t know what to make of the IGA that the US was pushing down our throats, and where this even law came from. Justin probably has no idea what the most respected constitutional lawyers in our country who love and defend the Charter think of the IGA. I doubt he has any idea that a judge who ruled on our case based strictly on the US-Canada treaty says our best hope is to go on to the Supreme Court and challenge the IGA on the basis of the CHARTER. Why would the judge say that if we didn’t have a reasonable chance?

    Yes, Justin made comments in writing previously that clearly show he doesn’t get why the IGA is unacceptable, but this is a VERY common problem. We constantly find reporters and other people have trouble understanding this! So now that the campaign’s over and he’s on top, it’s time to educate him and his winning team. As soon as he names his ministers, we need to get into gear and contact the most influential and pertinent among them, and get them to understand WHY Harper’s IGA is unacceptable, WHY reputable experts have repudiated it, WHY it unfairly entraps people who cannot renounce like Carol’s son or people too poor to shell out $3000 plus the costs/risks of years of financial documentation, WHY it directly contradicts the vision of “a Canadian is a Canadian” and WHY it is unconstitutional under our great Charter of Rights and Freedoms put into place by the Liberal party when led by Pierre Trudeau himself!

  2. @LM

    Here is the brief policy statement we (I’ll leave it up to the other two Brockers to divulge who they are) came up with for my now Liberal MP:

    “With the FATCA/IGA, the Harper Conservatives instituted the supremacy of U.S. law over Canadian citizens in Canada.

    The Liberal Party needs to do the right thing for Canadians by restoring Canadian Sovereignty and restoring Charter Rights to all Canadian Citizens and permanent residents regardless of national origin, and by protecting them from the extraterritorial overreach of other nations.”

    You think that might resonate with Trudeau, considering what the Charter means to all Canadians and particularly his father?

    As you, I also believe we should build on his words that express concern for FATCA’s effects and know that although he hadn’t done as much as we hoped, it’s not a guarantee that he won’t do something in the future. With Liberals holding so many seats it just serves to increase our growing demographic being heard by our federal government, doesn’t it?

    Re the notice on the fed’s website, do you think Harper is trying to find some way to cling on to power? I heard somewhere that under certain circumstances he can try, but it would cause a constitutional crisis. Considering how little respect he has for the constitution, I wouldn’t put it past him.

  3. @ Sasha
    Sasha wrote: “Among my many concerns re. Justin Trudeau is whether or not he will honour Stephen Harper’s promise not to “collect” any U.S. taxes / penalties / fines for the IRS.”

    The immunity to assistance in collection of US taxes from Canadian citizens residing in Canada have is not based on the “promise” of the Canadian Prime Minister. It is based on law.

    Under the terms of the the Canada-US Tax Treaty, Canada may not assist in collecting a US tax debt from any Canadian citizen, unless the debt proceeded the date of their Canadian citizenship.

    It is a critical part of the Canada-US Tax Treaty, and has force of law. Changing this would involve both Parliament and the US Congress working in concert, and the US Congress would need to agree to reciprocal collection of Canadian taxes from US citizens.

    Historically, the US unequivocally will not collect foreign taxes from US citizens. This is one of the reasons that countries who have Tax Treaties with the US will not collect US taxes from their own resident citizens. It is a reciprocal exemption.

  4. I would love to see the Liberal and NDP MPs who supported our cause, as well as the one Green Party MP, Elizabeth May, meet with the new Prime Minister to bring him up to date on what could have been done to protect Canadian citizens and permanent residents who are also deemed by the US US citizens so the PM can fulfill his promise that *A Canadian is a Canadian is a Canadian* and subject to the same laws and has the same rights as all other Canadians under Canada’s (and the Liberal Party’s) Charter of Rights and Freedoms. The other experts who testified on our behalf in Parliamentary Committees, like Professors Christians and Cockfield, could also lend credibility on what should have been done and what might still be possible to roll back in negotiations with the US and, at the same time protect all who reside in Canada. Aren’t there dates of opportunity for renegotiation (like with spoken of re reciprocity)? I don’t know if it would be appropriate to also have our legal representatives and ADCS-ADSC involved. Just my random thoughts in what it will take to get Canada’s Prime Minister up to speed on the many issues he now needs to be fully on top of.

  5. @LM
    Do you have US investments or Canadian investments? Maybe you can ask your FFI if the IRS form W-8Ben can be excluded if you limit your investments to non-US vehicles.

  6. @Bubblebustin and LM

    RE: Liberal Policy Statement

    Yes, I was one of the other Brockers who worked on this. Hopefully it will resonate with Justin Trudeau, son of Pierre Elliot. I hope the Charter means something to our new Prime Minister.

  7. I agree with Jan, let’s give Trudeau the benefit of the doubt. He has never really exhibited a true understanding of FATCA. As soon has he announces his Cabinet, we’ll bombard the PM, the new Finance Minister, Minister of National Revenue, our own MP’s and anyone else that may be relevant, with our letters.

  10. There would be no reason whatsoever to ask LM to fill out a W8BEN for CDN investments. The FFIs are not required to provide a substitute for the US forms. They also can choose to ignore the reporting thresholds and report accounts of any amount. This is what the gov could have chosen to negotiate stiffer requirements for and protect us but they did not.

    FWIW, I have had a long exchange with a CDN lawyer who has informed me that it doesn’t matter that we have the Revenue Rule. The IRS’ first attempt to collect would be via the QI agreement that all banks made with the IRS long before FATCA. I have not yet been able to confirm this information. I have also heard, yet again, that the IRS can and will be able to attach a levy on any bank account via a US branch. I have heard this confirmed privately by a CDN banker. And others as well. I will continue to try and find out why and how. But it may be prudent to try and take steps to protect accounts. Credit unions or any FFI that does not have branches in the US. Get your name off the accounts (not sure that would be enough if account has already been reported on an FBAR). I am not fear-mongering here. I could not, in good conscience not pass this on. Anybody willing to help read through the mounds of legalese/IRSspeak would be appreciated.

  11. Wondering says:

    Under the terms of the the Canada-US Tax Treaty, Canada may not assist in collecting a US tax debt from any Canadian citizen, unless the debt proceeded the date of their Canadian citizenship.

    IANAL, but I’m not so sure.
    The treaty text appears to be (http://www.fin.gc.ca/treaties-conventions/usa_-eng.asp):

    8. No assistance shall be provided under this Article for a revenue claim in respect of a taxpayer to the extent that the taxpayer can demonstrate that

    (a) where the taxpayer is an individual, the revenue claim relates to a taxable period in which the taxpayer was a citizen of the requested State, and
    …

    This to me this reads that the treaty does not create an obligation to assist in collection – i.e., the “under this Article” part is key. However, if the ‘requested State’ decides to assist on its supposedly own free will, then that would be fine. And, given how countries have become non-reciprocal FATCA “partners” on their supposedly own free will, it’s not too far fetched to imagine the US strong-arming Canada to assist in collection. Would like to think I’m wrong on this, but …

  12. @Tricia

    RE: “The IRS’ first attempt to collect would be via the QI agreement that all banks made with the IRS long before FATCA.”

    Unfortunately, I think you are correct. The IRS will attach a levy on accounts at any bank that has a US branch in collection attempts bypassing the Revenue Rule. Please see the following link to corresponding IRS speak for anyone who might be able to get through it:

    http://www.pwc.com/us/en/financial-services/publications/fatca-publications/irs-releases-updated-qi-agreement.html

  13. I’m willing to give Trudeau a little time, but if he does not understand at FATCA means by now, it is because he has chosen not to understand.

    I met with my Liberal candidate in early spring for about an hour. She had not heard of FATCA, but she grasped within a few minutes what it means for Canadians and for Canada.

    Trudeau has had far longer than that to understand. He has heard it from Canadians and from some of his own MPs.

    Here are questions ADCS sent to him in March and his reply in June calling the Con actions “troublesome…insufficient…inadequate.” But he did not say what a Liberal government would do.

    http://maplesandbox.ca/2015/adcs-fatca-questions-trudeau-reply/

    We have work to do:

    We need to remind Trudeau of his words “A Canadian is a Canadian is a Canadian.”

    We need to remind him we require “Real Change Now”

    We need to remind him of “the increasingly important issue” of privacy.

    We need to remind him his father’s greatest gift to Canada was the Charter of Rights and Freedoms.

    We need to remind him to uphold our rights as Canadians.

    We need to remind him: “The government of Canada has a responsibility to stand up for its citizens when foreign governments are encroaching on their rights.”

  14. @ tdott
    On August 23, 2011 Don Cayo at the Vancouver Sun had a direct communication from CRA regarding collection of US FBAR penalties in Canada.


    Vancouver Sun story on Canadian Finance Department and CRA declining to collect US offshore bank penalties.

    Don Cayo was the first reporter to query practicality of extra-jurisdictional US revenue collections on dual citizens in Canada. His digging prompted a official statement from CRA & Finance Department to the effect that will not enforce US “offshore” penalties in Canada.

    “Canada Revenue Agency won’t collect debts for the U.S. Internal Revenue Service if — or when — thousands of American citizens living in Canada are formally assessed huge penalties for failing to file annual returns and disclosures even though they don’t owe any U.S. tax. The CRA had asked the federal finance department for a ruling on whether it should collect such penalties under the terms of a Canada-U.S. tax treaty.

    In a statement released Monday, the department said the Canada-United States Income Tax Convention contains a reciprocal provision for collecting taxes (and other payments such as Social Security or Employment Insurance premiums) and for collecting penalties associated with these payments.

    But, “the provision does not apply to penalties imposed pursuant to laws that impose only a reporting requirement (as opposed to those that impose taxation along with reporting requirements).”
    The finance department statement adds, “Moreover, the obligation to collect taxes imposed by the other country does not apply in cases where the individual was a citizen of the requested state at the time the tax liability arose in that other country. This means that the CRA would not collect the U.S. tax liability of a Canadian citizen if the individual was a Canadian citizen at the time the liability arose (whether or not the individual was also a U.S. citizen at that time).”

    And Don Later followed up with a verbatim copy of the CRA position:

    DON CAYO WROTE ON AUG 24, 2011
    “Several correspondents and callers have asked me to post a link to the Canadian Department of Finance statement spelling out that the Canada Revenue Agency will not collect non-filing and non-disclosure penalties on behalf of the IRS.
    If the department has posted a link to this statement, I am not aware where it is. I quoted from a statement in an email to me from an employee who asked that it be attributed to the department itself, not to any individual.


    The full text of the statement, unedited, is:
    • As outlined in detail below, penalties imposed under FBAR would not be collected by the Canada Revenue Agency (CRA).

    • CRA does not collect taxes and penalties imposed under a foreign tax law, unless it has been agreed to do so pursuant to a reciprocal provision to that effect contained in a double taxation agreement in force between Canada and another country.

    • The Canada-United States Income Tax Convention contains such a reciprocal provision, which allows for the collection by a country of taxes imposed by the other country, including civil penalties. The provision applies to all categories of taxes collected, and to contributions to social security and employment insurance premiums levied, by or on behalf of the governments of the respective parties. This means that the provision does not apply to penalties imposed pursuant to laws that impose only a reporting requirement (as opposed to those that impose taxation along with reporting requirements).

    • Thus, penalties imposed under the U.S. Bank Secrecy Act for failure to file Form TD F 90-22.1 (Report of Foreign Bank and Financial Accounts, commonly known as “Foreign Bank Account Report”, or “FBAR”) are not covered by the above provision of the Canada-U.S. Income Tax Convention and would not be collected by the CRA.

    • Moreover, the obligation to collect taxes imposed by the other country does not apply in cases where the individual was a citizen of the requested state at the time the tax liability arose in that other country. This means that the CRA would not collect the U.S. tax liability of a Canadian citizen if the individual was a Canadian citizen at the time the liability arose (whether or not the individual was also a U.S. citizen at that time).

    IMHO, CRA does not have any choice in deciding to collect US taxes from a Canadian citizen because it would be unlawful under the Tax Treaty.

  16. @Bubblebustin –
    Thanks for the statement – it is clear and concise and easily added to with brief comments about a person’s particular situation. I hope lots of Canadian Brockers take the time to write to their MPs with a copy to JT (somehow I think that might be just as effective as writing to JT with a copy to the local MP, plus provide an opportunity to meet the MP to discuss).
    Re the notice on the fed’s website, and your question about whether Harper is trying to find some way to cling on to power – – I am not sure what you are referring to. From what I read, he asked the party to start looking for a replacement leader as of late last night. Please send link…….

  17. @ Marie,
    I have no US investments (tho I recently discovered that one of my Cdn investments actually pays dividends in US$ – – go figure). Even so, my advisors’ associate said that if I don’t sign I might not be able to have any account there. She is well aware of FATCA and is VERY sympathetic about this issue (and knows that I have my CLN so am NOT a USC); she will check as far as she can but she doesn’t know who she can speak to in “head office” (nor is she allowed to do so) so her question will be passed on to someone who will pass it on to someone else who will pass it on to someone else………. I did tell her that I thought the IGA allowed for a “substitute W8BEN” form.
    Thanks for your interest – – I’ll post when I get further information. 🙂

  18. @LM,

    I cannot understand why your bank would ask you to fill out a form regarding withholding taxes on US sourced investments when you have none. That said, if your Canadian investment pays dividends in US dollars, it’s probably a US investment. If you change your investments to Canadian only (non US sources), will you bank waive this requirement?

  19. @calgary

    The QI program started in 2001; it was supposed to apply to US sourced income. Super-simplified: the FFI had to identify US persons with accounts and to withhold 30% and remit that to IRS. They did not have to actually report the names of the account holders. The Swiss bank debacle is based upon failure to adhere to this progam. I still cannot find where it says due to QI, the IRS can attach a bank levy in order to collect amounts due. I hate reading this stuff…And the BlueJays just got creamed………ggggggggrrrrrrrrrr

  20. LM writes:
    OK Brocker folks, I have a situation and need support /answers / information.

    I invest with a Canadian FFI (for example, RBC-Dominion) and just got a W-8BEN from them that “has to be” filled out and signed; otherwise, they will no longer allow me to trade/invest with them. …

    Just to let you know, I am living a nightmare with an institution related to the one you mention, with regards to on-line investing and have been forced to withdraw my funds from said institution because they would not accept anything other than a CLN or those US forms. I have a CLN, which I received mid process, but have not provided it on principle.

    Complaints department, ombudsman, countless calls to countless bank representatives, over a year, and I went and found another institution. To add insult to injury, their bureaucracy is a tangled web of endless disconnected loops. One person says the account is frozen, the next says you can withdraw, the next says you can trade in one but not the other. Ultimately, they wrongly tried to prevent me from withdrawing my funds from this account, accidentally held a share of something, re-opened an account in my name without my signature or knowledge, and then charged US non resident tax for that one share! I have never lived in the US (since 4 months)
    Get out while the getting is good. Some institutions are ultra vires.

  21. I can’t read this stuff — it is well over my head.

    And, so sorry about the Blue Jays. Yesterday was a much better Canadian day.

  22. Here is an opportunity for a positive message to Prime Minister Designate Justin Trudeau at Avaaz.org — https://secure.avaaz.org/en/hope_for_canada_/?bdBWoab&v=66466

    Mine:

    Congratulations to all Liberals who worked so hard −− and to Justin Trudeau.

    Many will remind you if you ever forget and go off track on your statements made that *A Canadian is A Canadian is A Canadian* and ALL Canadians must have the same rights under Canada’s Charter of Rights and Freedoms −− reminding us the Liberals are the Party of the Charter. We want NO second−class Canadians. That must include US−deemed US Citizens in Canada who very few know were made second−class by the Conservative governments omnibus Budget Bill C−31 (2014) that implemented US FATCA law in Canada and overrides Canadian laws and Canadian rights.

    Stay the course. We have a lot of work to do to get the Canada that once was.

    Carol Tapanila, Canada just now

  23. “Obama turned out to be Bush III”

    Hey, I was calling him that in 2009. But I guess short phrases like that can’t be copyright.

    Besides, he turned out to be worse. Bush tortured innocent people, Obama drones innocent people. What’s due process? Yeah right, the US surely pays the same attention to the possible innocence of droning targets as it does for IRS targets.

    Under Bush, the US Supreme Court ruled that Guantanamo inmates are entitled to a few dilapidated vestiges of what used to be due process. Under Obama, that’s gone.

    The Nobel committee was right. When Obama is the last human left alive, the world will have peace.

  24. AnonAnon, I am in Toronto, in Christia Freelands new riding, and I am more than willing to work on a project involving visits to MPs offices. I received a sympathetic hearing from my old MP, Adam Vaughan, along with the suggestion that, due to re districting, Christia would be the person I need to talk to. I think a well crafted personal presentation by several severely impacted constituents could be very powerful. I am “Linda” in the video presentations. If you would like to meet and talk, the administrators have my permission to pass on my email.

  25. @No name, I am in Don Valley West, the riding re-taken from the Conservatives by Rob Olephant, the Liberal who was the MP here before the previous election. I’m sure he will lend a sympathetic ear. I believe Tricia Moon is also here in Toronto. I also know several Canadian citizens with US personhood who live in Toronto, some of whom would likely be willing to participate in a joint meeting.

    Moderators, can you send my email address to No name and to Tricia Moon so we can try to get something going together on this? Thanks.

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