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
In light of the pretense in the statements of defense to the ADCS lawsuit, made by the CRA (Canada Revenue Agency) and the Canadian federal government defendants regarding the so-called ‘benefits’ to Canada of having signed up to sell Canadian citizens and residents down the river – delivered over to the grasping hands and slavering jaws of the US Treasury FATCAnatics. These comments below are very interesting re the ‘reciprocity’ (specifically, the lack thereof) from the US:
Interesting comments from a FATCA webinar transcript re lack of US reciprocity;
“….HAYDON PERRYMAN: I think the American legislators often forget that it isn’t America that’s implementing FATCA and that FATCA can’t be implemented at all without other jurisdictions doing it for them. They also forget that there’s virtually no money coming to them from FATCA, nothing like even a fraction of the $8.7 billion they promised when they passed the HIRE acts. The US, all the IGAs negotiated, with the exception of three or four, were all predicated on reciprocity that the US shows absolutely no sign of meeting.
Far be it for me to say the IGAs were negotiated in good faith and I don’t think anybody else thinks differently, but I’ve seen absolutely no evidence of the US trying to make a reciprocal report for—to the IGA countries. And the other thing is that the US is the only member of the OECD that hasn’t signed up for the Common Reporting Standard. And the IGAs also committed those nations to pursue the Common Reporting Standard……”
from
https://taxlinked.net/taxlinked/live-events/fatca-webinar-transcript
Worth reading in entirety, lots of interesting points raised.
Add this paragraph to what I posted earlier from the FATCA webinar;
……..”So, US doesn’t make any money from FATCA, won’t even make it stricter. If they make it stricter to try and raise more money, they can’t do that without engaging other countries and they haven’t kept any of the commitments they made either to—on reciprocity and they haven’t entered the Common Reporting Standards. So, forgive me I don’t want to get to emotional about it, but it’s not exactly Americans implementing FATCA, it’s the rest of the world.”So, US doesn’t make any money from FATCA, won’t even make it stricter. If they make it stricter to try and raise more money, they can’t do that without engaging other countries and they haven’t kept any of the commitments they made either to—on reciprocity and they haven’t entered the Common Reporting Standards. So, forgive me I don’t want to get to emotional about it, but it’s not exactly Americans implementing FATCA, it’s the rest of the world……”
https://taxlinked.net/taxlinked/live-events/fatca-webinar-transcript
@ Norman Diamond
I’m sure calgary411 will have better answers for you but you’ll have to wait until she is no longer computerless.
Yes it is very much worth reading, Badger.
It would have been great if the participants had explored this topic in detail, but they didn’t seem to have much to offer (near the end):
“MARC ENZI: Okay, and from a practitioner’s standpoint, I’ve got a question for the panel. This wasn’t on the list of questions, but we’ve had clients who have been caught up with this and you know, they’ve settled with the IRS, not through OVDI, but they have their penalties, we argued it and we had them down to about $10,000 a year for a number of years. And what we’ve seen is that the IRS has been delegated collection enforcement authority but has no enforced collection.
They’ve been delegated collection, they’ve been delegated—I’m sorry. They’ve been delegated the administration of the FATCA project, or program but they have not been delegated enforced collection authority. So IRS can collect and seize your assets under Title 26 of the US code but under Title 31, which is what covers these foreign account reporting rules, they cannot. And so the statute, I’m a little bit surprised, for collection from the time they assessed the debt is two years.
Have you all seen anything where clients are trying to slow walk this and run out the clock on the collection statute?…”
Again, on the subject of accidental Americans, the Obama budget proposal to relieve accidental Americans of their US citizenship and therefore their tax filing obligations makes no reference to the child having to be registered to be considered a USC. You’d think that if they’d gone to the effort to restrict those who’ve obtained a US passport, they would have also made the distinction between registered and unregistered children, instead of referring to them solely as
“Individuals who became citizens of both the United States and another country at birth”, if the US thought there was a difference, wouldn’t you?
http://citizenshipsolutions.ca/2015/02/08/the-2015-obama-budget-proposal-for-dual-citizens-cannot-be-implemented-without-congressional-approval/
Will I ever see the day any of this makes sense? In the comment below is the reply I got from the same Howard Kavaler, DOS/Legal…
This is such a *clear as mud* subject. From all I’ve been told by immigration/nationality lawyer in Washington, DC and also by Department of State / Legal, if your facts determine, you are automatically a US citizen from your first breath taken in another country (as my children). There was no *claim* to it. As we all know, it is easier to not be identified if your other-than-a-US passport does not show a US birthplace. I tried very hard to get someone in DOS to tell me YES or NO — is there or is there not a *CLAIM* to US citizenship? The closest was from DOS / Legal:
From: Kavaler, Howard
Sent: Wednesday, May 07, 2014 9:55 AM
To: caroltapanila
Subject: RE: Question re US Citizenship never registered with the US
Ms. Tapanila:
If your son was born in Canada to two U.S. citizens, at least one of whom had a residence in the United States prior to his birth, your son is a U.S. citizen pursuant to Section 301(c) of the Immigration and Nationality Act. Your understanding of U.S. citizenship law is absolutely correct. U.S. citizenship is a status that is personal to the U.S. citizen and may not be renounced by a parent or a legal guardian. If your son seeks to renounce his citizenship, it will be incumbent upon him to demonstrate that (a) his action in renouncing his U.S. citizenship is the product of his own free will and (b) that he fully understands the consequences attendant to the relinquishment of his U.S. citizenship.
My children’s birth situation (born abroad to two US parents) and Phil’s (born abroad to one US parent if meeting definition below) ACQUIRES by their birth US citizenship.
http://travel.state.gov/content/travel/english/legal-considerations/us-citizenship-laws-policies/citizenship-child-born-abroad.html
Acquisition of U.S. Citizenship by a Child Born Abroad
Birth Abroad to Two U.S. Citizen Parents in Wedlock
A child born abroad to two U.S. citizen parents acquires U.S. citizenship at birth under section 301(c) of the Immigration and Nationality Act (INA) provided that one of the parents had a residence in the United States or one of its outlying possessions prior to the child’s birth. The child is considered to be born in wedlock for the purposes of citizenship acquisition when the genetic and/or gestational parents are legally married to each other at the time of the child’s birth and both parents are the legal parents of the child under local law at the time and place of birth.
Birth Abroad to One Citizen and One Alien Parent in Wedlock
A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 301(g) of the INA provided the U.S. citizen parent was physically present in the United States or one of its outlying possessions for the time period required by the law applicable at the time of the child’s birth. (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen, is required. For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen, is required for physical presence in the United States or one of its outlying possessions to transmit U.S. citizenship to the child.) The U.S. citizen parent must be the genetic or the gestational parent and the legal parent of the child under local law at the time and place of the child’s birth to transmit U.S. citizenship.
This illustrates, per John Richardson’s advice, that the first thing to do, before any other step, is determine if one IS a US citizen.
As I have commented before if there is such a thing as citizenship-based taxation (in the US or any other country) with all of the consequences that brings, now especially with IGA signed to bring FATCA law to other countries to over-ride those countries’ laws, there should be a CLAIM to US citizenship (i.e., not automatic acquisition), when that person is of age and of requisite mental capacity — and with full knowledge of all of those consequences as well as any benefits by making such a claim. If no CLAIM were made at age of majority and also with requisite mental capacity, it is all NULL and VOID. If that were the case, all of these children such as mine, such as Phil, such as Gwen and Ginny, would not be in today’s predicament — as they are, as Stephen describes *accidentals*, *NON-MEANNGFUL’S*.
I agree with Duke of Devon that Phil’s best course of action would be to renounce his non-meaningful US citizenship. (Unfortunately, my son cannot do so for any amount of money because of his lack of *requisite mental capacity* to understand what citizenship is, etc.)
P.S. Phil description of his *conversation* with a US border official is the reason I will not cross the US border with my Canadian-born son who has only a Canadian passport (and no SSN and no US income tax return or FBAR/FINCEN reporting compliance). I will not take the chance of subjecting my son to such an intimidating situation at the border. He could likely (at least now) cross the border with anyone be me, his mother, who has renounced and has a CLN to prove she is no longer a US citizen. It wouldn’t take much for the least savvy border guard to put two and two together to ask my son if I were his mother and then the same conversation ensuing as Phil’s.
How many times????
How many angels can dance on the head of a pin????
If a child is born in Canada or another foreign country, his birth was not recorded at the US consulate and she has not applied for a passport it doesn’t matter a s**t what the lawyers say. The US government doesn’t know s(he) exists . They can’t impose citizenship on someone they don’t even know about! Give me a break.
The kid can apply for a passport later if s(he) wishes. In that case s(he) has to prove her provenance.
Thanks, EmBee. I’m still computerless but I managed to copy / paste with this itty bitty phone a previous comment to reaffirm what I’ve been told, some of it even paid dearly for. I am in no less a quandry now and no less feeling what I do about the whole sordid mess.
PS — hope all the Canucks here had some time away from this insanity to enjoy a day of Thanksgiving with family and / or friends or shared with someone without.
“there should be a CLAIM to US citizenship (i.e., not automatic acquisition), when that person is of age and of requisite mental capacity”
From reading those two US government publications (web pages) my understanding is that there EXISTS exactly such a CLAIM, which is irrelevant in the case of Calgary411’s son because he isn’t applying for recognition and passport after the age of 18. Meanwhile the other method of CLAIM (not automatic acquisition) enabled Calgary411 and husband to report their son’s birth before he reaches 18, but that’s also irrelevant if they did not report. So it still looks to me like he isn’t in the trap.
How many times???
That question just underlines the inequity, the unfairness in such a very seriously unclear law re children born abroad to US parent(s). No one should have to wonder or worry about any of this, least of all children born to US parent(s) in Canada or born in the US to parents of another country — US citizenship without their consent with the poison of US CBT. None of this is my children’s fault — only mine. When I am gone, I want to know my children WON’T face any further US nonsense.
“That question just underlines the inequity”
Yes but more importantly I think we have the answer. If you did not report his birth to the US consulate and he did not make his own application after reaching age 18, then he still has a claim (he CAN apply) but he isn’t in the trap yet. From what we see in those two US government publications, he’s free.
TD Bank says that until I receive a FATCA letter with an FRC number in it, they are unable to tell me if they did or didn’t report my account information to CRA. So I asked how to get a FATCA letter, but even if I can get one it will take a while. It sounds like there is no way to get an answer at the moment, yes or no, did they or didn’t they.
Yes, Calgary, until it’s in writing that a child is assumed to be not a USC until s/he is registered no one will rest easy, including their executors.
One of the many things that concerns me in this witch hunt, is that someone in my son’s position might one day have to prove s/he isn’t a USC – which of course s/he can’t. Any effort to have that confirmed by the US consulate will only get them a US passport. It may come from a business partner who doesn’t like the ambiguous information out there, or even a potential spouse.
I think there’s no assumption either way that he is or isn’t a USC, but until he applies to be recognized and get a passport he’s still free (which presumably will be forever).
Assumption, presumption. That just leaves me and others looking over our shoulders. Not a problem for many. BUT just is a problem for many others. I’ve stuck my neck out and, as such, will be a witness in the Canadian litigation if what I say or feel is of any use.
Really, isn’t it now my bank’s Responsible Officer’s absolute responsibility to report me to the US IRS? They surely by now know my name or they are most irresponsible.
I’ve paid US taxes on my son’s RDSP Canadian government contributed grants and bonds (compliments of all Canadian taxpayers). The US has all the info they need, compliments of my FBARs. Tell me again why I shouldn’t have to be looking over my shoulder? A few journalists I’ve talked with say they will be interested. I am sure not going through the hoops to help *claim* my son’s US-deemed US status, but based on what I’ve been advised — someone is shirking their RO duties.
I agree, bubblebustin, the unthinkable is quite possible, as absurd as all the rest — our children one day having to prove they are not a US citizen. Seems no less improbable than all of our private financial information is now to be sent to a foreign government without due process.
That’s right Calgary. Justice Martineau has told us that the US can do pretty much what it likes and Canada is obliged to help them as long as it helps the US enforce its tax regime. Would that include allowing IRS agents into Canada to inspect our homes and businesses, because after all once you bypass probable cause, are there really any barriers left?
“That just leaves me and others looking over our shoulders.”
Yes, but meanwhile stop filing in the US. If the US wants to prove he’s a US citizen the onus will be on them. If they succeed then they will trap him at that time. There is no presumption either way, but you and your husband didn’t report him and he didn’t report himself so he isn’t in the trap now.
“Really, isn’t it now my bank’s Responsible Officer’s absolute responsibility to report me to the US IRS?”
No, your bank might have to report him to CRA and CRA might have to report him to IRS. Meanwhile you reported him to IRS (I think) but that doesn’t make him a US citizen; he won’t be one until someone reports him to a US consulate. I don’t know if you can get a refund for mistaken payments but you don’t have to make more.
By the way, even though TD couldn’t tell me (yet) if they did or didn’t report my account to CRA, I think they probably will have to do so in the future because of our conversation. Well, I don’t mind seeing more noise added to those reports. Despite my old problems with the US still ongoing (such as not getting wihholding refunded because I failed to fabricate a social security number for my wife) there will not be new ones.
“Would that include allowing IRS agents into Canada to inspect our homes and businesses”
When the IRS threatened to do that to me in Japan in 2006 for my 2005 return, I expressed doubt whether they were authorized, but I INVITED them to do so. They’re the ones who refused. Later the DOJ even complained in court that I invited the IRS to do what they said they wanted to do.
@Norman Diamond
“Later the DOJ even complained in court that I invited the IRS to do what they said they wanted to do”
Because of their sclerotic judicial system, Fbar, Fatca, citizenship-based taxation, uncontrollable gun crime, illegal wars, byzantine bureaucracy, and a public debt of $18 trillion (among many other things), shall we finally say that the United States of America is a monstrous ‘failed state’ …?
George, are you advocating that FATCA be given more teeth to root out more people because it would make you feel better that others get busted by their banks just like you may? That makes no sense at all. You suggest that banks should ask questions like “where were you parents born”. That doesn’t mean anything. Just because someone born in Canada, has one American born parent, it does not automatically give their child USA citizenship. That USA born parent must meet certain residency requirements in order to pass on American citizenship. So, if someone born in Canada to an American born father, but that father left the USA to go to Canada at the age of 12 or 13, he would not pass on USA citizenship. For an American to pass on citizenship to a child born abroad, they need to have lived in the states for a specific number of years. So even if a bank found out a Canadian born customer has an American parent, there is no way for them to know if the child is American or not.
@Phil
No one’s advocating the IGA’s be changed to go after accidentals, but for FATCA to be completely effective and non-discriminatory, it would have. This to me is its greatest weakness, and as Professor Christians points out in her abstract, “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.”
http://video.cnbc.com/gallery/?video=3000431637
Jim Bopp on CNBC talking about his FATCA lawsuit.
“The only political remedy is maintaining Republican control of Congress and the election of a Republican president”
@Marie: I have a big problem with being a single-issue voter. It’s the circus called the Republican Party. Should they regain power in the White House & Senate and keep it in the House, it remains to be seen whether they will actually do something about CBT and FATCA. But we’ll probably never know since they seem to be busy shooting themselves in the foot these days.
That CNBC video says it was posted “14 hours ago” yet at the end Mr. Bopp says they are seeking an injunction. But the injunction has already been denied. This video must be far older. Am I missing something? Is something new going on with the Bopp case?