March 8, 2016 UPDATE: Legal fees paid — on to Federal Court for Charter trial contesting Canadian FATCA IGA legislation.
Canadians and International Supporters:
You came through once again: $594,970 for legal costs have now been donated and our outstanding legal bill is finally paid off.
Thanks especially to those who donated even though they never had any “spare” money to give, and despite this gave over and over and over again.
This last round of fundraising also shows that our Canadian lawsuit remains dependent on the kindness of our International Friends: There would be no lawsuit without their financial help.
Know that a very generous donation (today) from a supporter in the United States made it possible to pay off the remaining legal debt. Also please appreciate that there would be no lawsuit without the help of the Isaac Brock Society which has kindly let us use its website to solicit funds.
Our next step is the Constitutional-Charter trial in Federal Court.
For this we need more Canadian Witnesses, and my next post will be devoted only to a request for Witnesses willing to go public, like our Plaintiffs Ginny and Gwen.
For the future: I want a win in Federal Court — and I want the new Liberal Government not to appeal that win.
Thank you all for your support,
Stephen Kish,
for the Directors,
Alliance for the Defence of Canadian Sovereignty
http://www.theguardian.com/us-news/2015/feb/03/london-republican-2016-hopefuls-donations
Interesting article from Feb 2015 in The Guardian, Republican fundraising events overseas are telling Republican candidates direct about FATCA.
“‘The CRA complied with the September 30 FATCA deadline after the IRS advised that Notice 2015-66 did not apply to Canada’
http://www.canadiansecuritieslaw.com/2015/10/articles/international-developments/us/the-cra-complied-with-the-september-30-fatca-deadline-after-the-irs-advised-that-notice-201566-did-not-apply-to-canada/
Also note that it is open for comments.”
I looked for news as to whether CRA actually complied but didn’t find any. The posting only mentions the same affidavit that was reported on IBS, dated earlier than the supposed date of compliance. In my experience I’ve only seen the IRS and USDOJ backdate their alterations of records; I haven’t seen CRA do that. So I don’t see any information about whether CRA really complied.
Did anyone else try to post a comment on that blog?
@Don
That article is indeed interesting because it shows how much Republicans in general continue to ignore FATCA, despite the good work of Republicans Overseas and the Bopp legal team. Even Rand Paul, one of the plaintiffs in the lawsuit, has been completely silent about the issue since he hit the campaign trail. There remains such a huge disconnect between the reality of FATCA and what comes out of the mouths of supposedly even sympathetic politicians, but that’s true of all American politics. Clearly, our cause just doesn’t make the grade yet in the world of realpolitik.
Meanwhile, the comments section on that article showed clearly that UK citizens are just as ignorant as their US cousins when it comes to FATCA. They too gladly trotted-out the same canards about rich expats. Jeez, can any of these people think for themselves or do they all simply swill from the same kool-aid vat?
@Stephen Kish, “I was just asked by a journalist this morning, what happens if we win the Charter trial next year, will that stop the continued use by IRS of bank account information already turned over to the IRS…?”
That account information will be mined not only by the IRS but by any and all agencies per Sen. Carl Levin.
But, the Canadian Government should be held responsible financially for all damages done with that information in violation of the Charter. And its going to cost a hell of a lot more than buying a year of credit reporting protection!!!!
@Deckard1138 – It’s time to expand the FATCA battleground beyond Canada and now across the pond.
“Calling all ‘US Persons’ we need help”
I still believe European Courts would strike down the IGAs.
Also what impact does the Facebook ruling have with EU banks?
Europe needs to be wake up and move on.
“But it’s the law itself that is discriminatory …
“And what is the harm? Perhaps it’s the harm of knowing that even as a citizen or permanent resident, we are not entitled to the protection of our government.”
This is exactly the point. For over one hundred years there has been a law (CBT) on the US books that many people knew nothing about and therefore did not obey. Now there is FATCA that has, in effect, “enacted” CBT …. kind of like some sort of genetic disorder that only shows up later in life. It’s a “time-bomb”.
*Any* law on the books that goes unenforced for decades can rear its ugly head generations later and do its damage. The very existence of the law, even when it is unapplied, constitutes harm because of the means given by that law to the government to exercise harmful actions against it own citizenry whenever it may seem useful to do so.
Citizens of any country have the right to expect that their country’s laws are there to protect them, not to trap them in situations from which they cannot extract themselves. The only guarantee a citizen can have is the assurance by their country that no “time bombs” exist in their laws. Lawmakers need to have an eagle eye out for potential time bombs in the legislation that comes before them. On February 5, 2014 our lawmakers in Canada failed to do so despite clear warning.
We are all experiencing harm right now because we are living in fear of what the law clearly allows the government to do to us *regardless* of whether or not they actually do it. The point is …. they can!
What about a housewife who doesn’t work and is on her non US husband’s bank account? The US says she has to say 100% of the money is hers even though in reality she didn’t put a single dime of money into the account. It is all her foreign husband’s money that has already been taxed and declared to the foreign country but with fatca and fbar could essentially be confiscated by the US due to fatca reporting requirements.I would call that bringing harm both to the people involved (US citizen and non US spouse) plus harm to the foreign country since the money would leave their rightful jurisdiction and transfer to the US.
For me when I walk into a FFI, am I being treated differently? Being asked to fill in a W9 etc. The answer is YES equals discrimination.
Whichever way you cut the cake, FFIs have to discriminate somewhere between the KYC procedure and the data send off to the CRA, it’s really that simple.
Here’s some ‘harms’ identified in the UK.
Unable to take tax breaks from the UK Government.
ISAs (with the NSI refusing to open accounts for ‘US Persons’
http://www.telegraph.co.uk/finance/personalfinance/investing/isas/11634040/Isa-providers-refuse-to-open-accounts-for-British-Americans.html
UK Government Pensioner Bonds
http://talk.uk-yankee.com/index.php?topic=84598.0
UK banks changing their T&Cs forcing people to sign away their Data Protection Rights – Yeah the CRS is coming, but this change was really for FATCA. Who else is the bank sending data out on every single person except a ‘US Person,’ – nobody. I wonder how the Facebook EU ruling could impact this?
Anything revolving around your relationship with Government, Institutions (FFI), and People. I would argue your Security has been compromised as well. From a record keeping point of view, we might as well wear a star of David on our lapels – it amounts to the same.
I think the bank itself provides clear discrimination during the KYC process. One Canadian gets handed a W9 the other doesn’t. What makes that Canadian different? Perhaps the Government should answer that question.
Isn’t a US person wife ‘harmed’ because she takes off her name off the martial bank account leaving her first class Canadian husband in control of all the money?
I’m sure there will be new ones as this progresses.
MuzzledNoMore –
Citizens of any country have the right to expect that their country’s laws are there to protect them, not to trap them in situations from which they cannot extract themselves.
Serfs of any state who suspend their witless obeisance will understand that their only function is to pay homage and tribute to a faceless oppressor and its sneering minions.
NDP released their platform at long last. Can anybody find anything about their position on the Canadian legislation implementing FATCA?
http://xfer.ndp.ca/2015/2015-Full-Platform-EN-PRINT.pdf
Oh yes, and while I cannot read much French, some Brockers would prefer that version. Enjoy.
http://xfer.ndp.ca/2015/2015-Full-Platform-FR-PRINT.pdf
@ Tom Alciere
I don’t see anything in the NDP platform which indicates they remember the million little witches the IRS is hunting down in Canada (by invitation of Harper & Co.) … unless this sentence indicates how the NDP now perceive the haunted ones (hope not).
I’m still voting NDP though. I like the candidate in my riding and I appreciate the efforts of Murray Rankin and Nathan Cullen re: FATCA, both in committee and in parliament. I’m very disappointed that the party is tanking in the polls. There will be no support at all coming from a Lib or Con government.
@Stephen Kish
Would your wife be willing to act as a witness or plaintiff esp in the Canadian action?
She is the one who is angry. Of course if she is angry then it affects you too. However it seems that the order of the day is to find people who have been harmed as directly as possible, and she might be in a good position to argue such harm.
Dash, I volunteered to be a plaintiff for the Canadian action (I am IRS compliant but resent the loss of my privacy without my consent) but was not accepted. My wife, so far, is not willing to be a Witness, although she is, as you say, angry that a foreign country has her private banking information.
Yes, to make an air-tight case as much as possible, I think that we will need a variety of Witnesses who will suffer or have suffered harm. A “pure Canadian” who has a joint account with a tainted spouse deemed to be a U.S. person will be an important Witness — but I know from experience in asking that it is the very rare person who will volunteer to be a Witness in this lawsuit and be willing to disclose personal details to public scrutiny.
@Stephen
It seems to me that the recent court proceedings in the Bopp case failed because you and the other plaintiffs lacked “standing”. In other words, the DoJ agrued successfully that the plaintiffs weren’t harmed directly by FATCA. I also understand that “standing” isn’t so important in Canada. Is this true, because if it is, I would think that it would be much easier win a case when those who “will suffer” harm are considered – which leaves the door open for potentially more witnesses.
Bubblebustin,
You would think that just arguing, as Marie seems to suggest, the merits of the case (discrimination, loss of privacy, loss of a country’s sovereignty) would be sufficient to win a FATCA lawsuit.
But to “convince a judge” to rule on our side it would seem helpful (may be necessary? — I hope not) to find Witnesses who will likely suffer or who have already suffered specific harms. My bank balance is always low and so far I guess I have not been turned over by FATCA. [On the RO site Jim Bopp is now seeking a Plaintiff who has suffered a specific harm.]
Do we need for example, a “pure Canadian” married to a U.S. tainted Canadian who actually had joint account information on the couple’s hard-won life savings turned over by FATCA to IRS (or will have based on account balance and terms of FATCA IGA) AND the IRS has sent a threatening letter demanding compliance now or confiscation of Canadian-made assets from the innocent couple etc.?
Continuing the hypothetical profile of the person, will the Crown argue that since the above couple are Canadian citizens (Canada at this point in time will not collect on behalf of IRS — depending) the couple is “protected” from harm?— therefore the “best” Witness should be (if I understand the laws correctly) a landed immigrant who would still have Charter protection (lives in Canada) but not protection from the Income Tax treaty…etc.
We can speculate on this, but since I mentioned on this post that we need Witnesses for our lawsuit, I have received only a single email from a new potential Witness and am open to all. Hopefully there will be more interest once we publish a list of desired characteristics. Will those who will suffer harm if turned over by FATCA to IRS be more or less willing to be a Witness?
Stephen,
If we have to wait for people to start receiving FATCA letters from the IRS before they have sustained actual harm it could be a long time before we find a witness. Could I suggest that another specific harm (which is possible that many have already suffered) is of not being able to open certain types of accounts because of the “place of birth” question? Those who know about FATCA will probably not feel free to open such an account, in spite of the fact that they should, as Canadians, be free to do so. But they know the consequences of revealing their place of birth to their banks and so will disqualify themselves from opening the account which might have yielded better returns than the alternative which they were forced to accept because of the FATCA IGA.
Muzzled,
Yes, not being “able” to open an account because of fear of being turned over by FATCA is a harm.
Presumably such a person is IRS non-compliant. Do you know, or does anyone know, a Canadian in this situation who would be willing to disclose such personal details publicly and be willing to volunteer as a Witness?
@Stephen Kish; First a hearty thank you for everything you are doing. Some day I hope to shake your hand and I will do that with a tear in my eye.
—–
In this legal debate I am left scratching my head. In most areas now, gay couples have the right to marry on fully equal terms with non-gay couples and that right includes the name marriage.
For all intensive purposes, the Courts on both sides of the pond determined that “civil partnerships” which were marriages in all ways EXCEPT name, was therefor discriminatory.
Putting aside the gay marriage issue which is for some emotive but explanatory.
This may sound like a joke/riddle but it gets to the point;
Three Canadians go to a bank to open an account-
Canadian 1 was born in Canada to two Canadian Parents that both had the misfortune of being born in the USA.
Canadian 2 was born in the USA to two Canadian Parents and spent less than two days of his/her life in the USA.
Canadian 3 was born in Canadian to parents whose ancestors never ever stepped foot in the USA.
Why should ANY of the above receive any different treatment when they attempt to open a local bank account in Canada?
(Cont)
Canadian 1 IS subject to FATCA but will not be treated any differently by said FI.
Canadian 3 is NOT subject to FATCA and is a baseline.
Canadian 2’s is a Canadian Citizen by birth identical to the above two but will be treated differently.
This is all so clear……
The real problem for many of us considering being a witness is the use of our name in public. All of us in hiding, and I think there are thousands of us, will suffer various degrees of harm if we raise our heads above the fox hole. Of the myriad of harms possible, one that might be addressed from a witness is the tax on the sale of a principal residence. Is there a U.S. tax compliant Canadian resident with a non US spouse who has been subject to a tax on the sale of their joint principal residence? The Canadian born spouse would be a safe witness with undeniable harm. I know of one such couple, but they are basically estranged so I doubt that they would be able to find the common ground to make this happen.
George is on to something, as my mind keeps going back to accidental Americans, specifically those born outside the US who have no outward signs of US citizenship.
As Allison Christians points out in her abstract posted in advance of the upcoming International Tax Conference hosted by the IRS’s Tax Advocates Office in November:
“Across the globe, banks are flagging accounts with indicia indicating their owners may be “US Persons,” clearing the way for the United States to enforce citizenship-based taxation extraterritorially for the first time in history. For individuals who permanently reside outside of the United States, this is a “where there’s smoke” method of establishing tax jurisdiction because none of the indicia are themselves incontrovertible evidence of one’s status as a citizen and therefore a US Person for tax purposes. The indicia method guarantees that certain individuals will be presumed to be citizens and subjected to repercussions regardless of their actual legal status as such, while others will be overlooked even if they are in fact citizens. Establishing a tax jurisdiction in this manner is arbitrary and capricious, with significant practical and normative consequences. Moreover, it violates one of the most fundamental and universally- acknowledged tenets of taxpayer rights, namely, the right to be informed about what the law requires. Because of the extraordinary demands that the United States attaches to citizenship, indicia-searching and self-verification of nonresidents violate principles of both international law and human rights. Both should be universally rejected as an invalid exercise of state power.”
http://www.taxpayerrightsconference.com/abstracts-papers/know-thyself-self-certification-and-the-taxpayers-right-to-be-informed-allison-christians/
The FATCA IGA is discriminates between Canadians in what it doesn’t do, which is detect all USP’s, resident in Canada or the US.
Allison Christians is a rock star!!!!
@Bubbles, from day one I was troubled that the IGA was not written to require an FI to ask “Where were your parents born? and Citizenship of each parent?”
Whoever drafted the IGA had “evil” in their mind because the talk of indica is too close to the Nuremberg laws, too close.
I suspect that there may have been an early draft asking parentage but that it was removed being the bridge too far.
Thank you for adding clarification to my thought process and I am sure others can chime in.
But yes it is discriminatory because some dolphins can easily swim through the nets whilst others can not.