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
@Fred:
“Plug your nose and vote” seems to be the catch phrase for both the US and Canadian elections. The only problem with voting Democrat is knowing that absolutely nothing will change for us. After seven years of the current admin no changes have been made to ease the burden on ex-pats. Think of all the letters and recommendations sent by citizens, DemsAbroad, ACA, AARO, the list goes on and on. Multiple letters that I sent to both of my Democrat senators remain unanswered. I don’t have a problem with being a single issue voter. I just hope the Republicans can shoot someone out that is mildly palatable.
Bubblebustin,
I understand that point, but if some people go by without being hunted down, good for them. If I was on a sinking ship I wouldn’t want to take every down with me to make things fair. We should be glad some peoples lives are not being ruined instead of wanting to drag them into it so things are “fair”. I say this as a tax compliant accidental. I am caught up in the tax system and not happy about it but at no point do I want others to get screwed like I did.
Like I said, banks can’t ask questions about parents place of birth because having one or both American born parents does NOT AUTOMATICALLY grant the kid citizenship. It depends on how many years that American parent lived inside the USA before leaving. There would have to be a massive investigation into the parents past which at this point would be highly illegal and ineffective.
Norman, thanks for posing the question to your bank, and thanks also to another supporter I know who is doing the same. You said: “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.”
I find TD Bank’s response unacceptable. Obviously the bank knows, and can find this out easily, whether it passed on your private banking information to Canada CRA.
I also now appreciate better that the bank will only know whether it passed on info to Canada CRA. Only CRA (not the bank) knows whether it actually forwarded the info on to IRS. It might be helpful to have a letter from CRA refusing to disclose upon request from an innocent Canadian (e.g., citizen) whether it passed on private banking information to a foreign country.
Anyway, this is what I hand delivered to CIBC this morning (and is not meant to be a template):
“October 16, 2015
CIBC…
I am a customer at your bank (xxxx) and am also a United States Citizen.
My attorney has received information that on September 30, 2015 Canada CRA turned over private banking information on 155,000 accounts to the United States Internal Revenue Service.
Some of this bank account information was provided by CIBC to Canada CRA.
I ask first whether CIBC automatically, and explicitly, informs their account holders whether CIBC has passed on any information on CIBC accounts to the CRA for the purpose of complying with the Canadian FATCA IGA enabling legislation.
I also wish to know whether, as I am a United States citizen, you have passed on any information on my CIBC bank accounts to Canada CRA for the purpose of complying with the Canadian FATCA IGA enabling legislation.
My account numbers are: …. It should be a very simple task for you to establish whether you have passed on private information on my accounts to Canada CRA for purposes of FATCA.
I need this information in writing by the end of business day October 16, 2015. If you will not comply with this request, I also need for my records a refusal to comply, also in writing, by October 16.
You can provide this information to me at my home address (xxxx) and should you wish to speak to me you can call me on my cell (xxxx).
Thank you,
Stephen Kish”
Apologies if anyone has raised this before (including myself…getting forgetful!), but has anyone embarked on using the Privacy Act to get information about themselves from CRA? I say “embarked” because the process is lengthy, generally taking months.
For information, see: http://www.cra-arc.gc.ca/gncy/tp/menu-eng.html
Here is a description of your rights under the Privacy Act, from the CRA website:
The Privacy Act came into force on July 1, 1983. It protects the privacy of individuals by outlining strong requirements for collecting, keeping, using, disclosing, and disposing of personal information held by government institutions. It also gives individuals (or their authorized representatives) a right of access to their own personal information, with limited and specific exceptions, and with certain rights to correct or annotate it.
NorthernShrike,
Thanks for the good idea: “It also gives individuals (or their authorized representatives) a right of access to their own personal information [e.g., that was sent to a foreign government], with limited and specific exceptions, and with certain rights to correct or annotate it.”
I suspect (but could be wrong) that CRA will provide account handover information, via the Crown attorneys, on the Plaintiffs and Witnesses of our lawsuit, because they are involved in litigation, but might resist doing this for other Canadians. Perhaps the Privacy Officer can help. Also, who knows if the information was “correctly” provided to IRS?
Perhaps there should be a massive number of requests made to banks and the CRA demanding to know whether private account information was turned over to the U.S. IRS without the consent of the account holder….
@Phil
I am merely attempting to expose the “indicia method” as having “practical and normative consequences”, to quote Prof Christians – not to put accidentals with non-US birthplaces in the bullseye. Perhaps you should take your argument up with her.
My posts were more aimed at George’s remarks.
Part of email from Phil Hodgen this morning re Exit Tax exemption for those who became dual citizens at birth (and if they file the required 8854). This, of course, would be for those who do not have a great risk tolerance, etc. — part of the info we all need to take into consideration to make our individual decisions on the best way to go forward until / if there ever is a change to US RBT law, whether the result of litigation or eventually someone’s common sense.
Quote
Became a citizen at birth
The dual citizen exception applies only to people who — because of the fact of birth — acquired citizenship.
E.g., if you were born in the United States you become a citizen automatically. That’s just the way our laws work. If the laws of your parents’ country make you a citizen of that country as well — even if you were born outside the territorial boundaries of that country — then the mere fact of being born to your parents makes your a citizen of that country.
Or the reverse can be true. You might be born outside the United States to parents who are citizens of the United States and acquire U.S. citizenship in that way. Simultaneously, being born in the country where your mother happened to be at an opportune time (Happy birthday to you!) made you a citizen of that country.
Not naturalization
Naturalization is the process of taking someone who does not have citizenship in a country, and making them into a citizen. It is a process that is voluntary on the part of the applicant, and is not something that can be automatically gained by right.
Since naturalization-based citizenship is not an automatically-assigned right occurring because of the fact of birth (via location or identity and citizenship of your ancestors), it will not qualify you for the dual citizenship exception to the exit tax rules.
The certification test still applies
Even if the dual citizen exception works for you, there is one more element that can make you a covered expatriate. That is the certification test. You must be fully up to date with your tax paperwork and tax payments for the five years prior to the year in which you expatriate. See IRC §877(a)(2)(C).
A covered expatriate is someone who fails (or satisfies, depending on your point of view) one or more of the:
tax liability test (IRC §877(a)(2)(A)),
net worth test (IRC §877(a)(2)(B)), or
certification test (IRC §877(a)(2)(A)).
The dual citizen exception eliminates only the tax liability test and the net worth test, not the certification test. IRC §877A(g)(1)(B). This means it leaves the certification test as still applying to an individual, where failure will mean covered expatriate status.
Disclaimer
We’re all grown-ups on this bus. This isn’t legal advice and you wouldn’t take it as such. You of course would hire your own expert to figure out exactly what the rules are for your particular situation. Taking advice from a random email newsletter would be daft, especially when doing things wrong could be hideously expensive in taxes, penalties, and interest.
Unquote
Similar disclaimer for taking advice solely from this or any blog.
This was posted in the comments section in the most recent WSJ article regarding toxic expats: (Is it true)?
David Lesperance says: “You are only dealing with a CRA seizure of the assets of an American in Canada. This would be the second (if necessary) step that the IRS would take to collect. The first would for the IRS to demand from your financial institution, as per the QI agreement, the entire contents of your account. This is part of the QI agreement that all the Canadian banks and financial institutions long ago signed in order to maintain access to the US markets for all their clients. It is a direct collection method for the IRS which does not require any involvement of the Canadian government, IGA or CRA. In addition, this is done whether the individual ever travels into the US again!”
@Charl
The banks can not just take your funds… US has to go to canadian court to get an order to do that… if the banks takes your money for that reason without going through the canadian court system… u get a lawyer and u sue the crap out of the bank… its been done before. Mr Lesperance is spreading fear… no one can take anything u have without a court order… I hate these frigging vultures trying to scare innocent people with their bs…
@ Charl
That really sounds like scare-mongering to me. I’m not sure I could take DL’s reappearance at Brock which was part of his long discussion with Tricia at the WSJ site. I might just drift away and concentrate on doing something constructive … like saving up for another contribution to the legal fund.
The latest news from TD is that they refused to tell me how to get a FATCA letter. Combined with yesterday’s news that they refuse to answer yes or no, did they or didn’t they turn my account information over to CRA under FATCA, until I get a FATCA letter from them, this makes it look like a permanent refusal to answer. I’m still trying though.
@Charl I don’t know if David Lesperance is correct, A lot of things he wrote were pretty scary. He was very negative on WSJ. Tricia has had quite a conversation with him. He also says claiming a past relinquishments is very difficult and yet we have seen many here.
Another interesting discussion on WSJ: PETERL BLACK (US citizen in US) was insisting one should only have one citizenship. He was born in the US to Canadian parents and his parents registered his birth in Canada. He does not seem to have officially renounced his Canadian Citizenship but said he did not “claim” it and would have renounced at 18 if required to do so. Sounds similar to a US citizenship law that was changed in 1978. Canada changed its citizenship laws in 1977 to allow dual citizenship, then in 2009 to retroactively give citizenship back to those who “lost” it due to prior citizenship laws. He probably regained his Canadian citizenship without his knowledge, due to Canadian citizenship law changes in a country “foreign” to him. Lucky for him that Canada makes it easy to renounce and there are no tax consequences.
Norman, thanks for persistently trying to get a response from TD Bank. I don’t know if this will help in our litigation, but a refusal of a bank to even inform the account holder, out of courtesy, whether, upon making a request, his/her private banking information has been sent without consent to a foreign state is (I think) a “harm” that the Federal Court of Canada (and Privacy Officer) need to appreciate.
Perhaps once you and others have the definitive answer from your bank (e.g., bank refuses to advise the account holder), you could contact me personally via the ADCS website.
Unreal! The banks refuse to tell you if they reported your account to the CRA. Then, they refuse to tell you in writing that they have refused to tell you whether or not your account was reported. I wonder what Joe Arvay will do with that information.
@Phil, I am thrilled for ANYONE that escapes the net.
That said, I am pointing out how the IGAs are defective and therefor discriminatory.
To be honest, I believe that the path to mitigating the discrimination should have been NONE of this indica rubbish. A bank could have asked one question, Citizenship? Then you answer and if the answer is not-US you move on…
IF the objective of the IGA is to ferret out US Citizens hiding outside the USA then they need to ask ALL possible questions and then allow you to cure that indica. That is the only way to mitigate and reduce the discrimination aspect.
Those questions must include the CLN question if you are a Covered or Non-Covered Expat because just asking for a CLN is not enough to determine non-US resident. But they also need to ask if covered how many days spent in the USA. Having a CLN does NOT mean you are a non-US tax resident!!!
Pointing all these discriminatory aspects in a Court of law amplifies the discriminatory nature of the IGA.
Once you go down the intrusive question road and asking place of birth is very intrusive, you have to go all the way!
To be honest, if foreign governments would have pushed the IGA agreements all the way down the intrusive road, I think there would have been a political groundswell to shit can the lot of it!!
Discrimination is defined as treating one group differently than another group.
Canadian Citizens born in the USA are being treated differently than Canadian Citizens born in Canada to two US Citizen parents. Ergo, the IGA is discriminatory. The cure is to throw the whole thing out.
Regardless, I am fully confident that the Empire will tighten the screws on their IGA partners and demand they find more Americans when the reporting numbers are too low!!!
@Phil, I also believe because the alternative is discriminatory, that the private banking information of every single Canadian Citizen needs to be turned over to a foreign government IF you are going to turn over the private banking information of a single Canadian Citizen born in New York.
You treat everyone the same.
If Harper had agreed to hand over all private banking information to follow the law, do you think the upcoming election would even be close?
I’ve interpreted your POV to be the same as mine, which should not be construed as any desire to throw accidentals under a bus – but only to highlight what should be a fatal weakness of the FATCA IGA’s. It appears we can’t broach this very valid subject without drawing a lot of ire.
Same as mine as well, bubblebustin.
In the compilation video of the Standing Committee Finance testimony, Nathan Cullen asks at 3:00 *Is a dual citizen a Canadian?*. Leaving aside that many of us believe we are only Canadians, the US deems we are not and Canada, besides saying we are US citizens who happen to reside in Canada, would agree we are dual citizens.
The answer in the video to Nathan Cullen is from Ralf Hensel,IFIC, *I would argue they are – Yes*.
http://www.adcs-adsc.ca/Parliament.html
I agree that it is discrimination to, rather than send the financial information of ALL Canadians to the US IRS, send only the financial information of US Persons. That was indeed the coward’s way out, the coward being the Conservative government of Canada.
They surely knew, and rightly so, the backlash sending financial information on ALL Canadians would bring!
…and I would argue that the analysis of information on Canadians with US parents wouldn’t be any more burdensome for the banks than having to cure indicia of those with US birthplace, for instance those who’d relinquished long ago but are unable to produce a CLN for the bank. Those customers will have to either provide a “reasonable explanation” – which may involve providing copies of various statutes, notarized letters, and more, or spend the $US2350 it now costs for them to produce a CLN. This, with the inherent dangers of putting oneself within the sights of the USG when they no longer are American is as wrong as asking someone to prove that they weren’t conferred US citizenship at birth, AFAIK!
Maybe TD monitors IBS. The latest news is that TD did answer me, they said that they did not turn over my account information under FATCA.
But they proceeded to muddy subsequent questions of what should happen and what might happen in the future. Since TD says they will not accept scans or faxes of documents, and I don’t dare to send originals (I’ve had three registered letters from Japan to Canada disappear in the mail), it will be some time before TD sees my CLN. I guess they didn’t notice that the Canadian passport I used in opening the account showed a US birthplace, but they’re aware of it now, and they’re aware of the reason why it will be some time before they see the CLN.
TD has a self certification form for non-US persons at
http://www.td.com/document/PDF/SCI-W8%20Self%20Certification%20of%20Non-US%20Status%20-%20Individuals%20English.pdf
I plan to print it and mail it to TD. The form is cute. There’s room to write my country of residence, Japan. There’s room to write my province of residence, 東京, as long as I don’t try to transliterate it to Tokyo. But there isn’t enough room for my postal code, 1980024. I don’t really see how they can rely on the form without seeing my CLN, but I plan to get around to doing it one of these days.
“I also believe because the alternative is discriminatory, that the private banking information of every single Canadian Citizen needs to be turned over to a foreign government IF you are going to turn over the private banking information of a single Canadian Citizen born in New York.
You treat everyone the same.”
I agree. In fact I think that should be added to the charter challenge: Why didn’t CRA turn over information on every Canadian?
@Stephen Kish
Well I just got back from my local branch of RBT. When I talked to the first teller and asked her if she knew if my banking information has been sent to the CRA, then having to explain what FATCA was, she looked at me as though I was wearing a tinfoil hat. Thankfully the teller next to her knew about FATCA and was able to verify what I said was true. The first teller (new) said FATCA’s “ridiculous”.
Anyway, after the two tellers had a conference with the bank manager, the first teller called the RBC Help Centre where she was told to tell me that “the Royal Bank takes their customer’s private information seriously and would not turn it over to just anybody, even the CRA”. I said that’s funny, because under the law, RBC’s supposed to do just that as my indicia warrants that it does. She informed me that the Help Centre also suggested that I contact the CRA to find out more. Seeing I was not impressed, I took up her offer to speak with the bank manger she’d just spoken to. The bank manager said that they wouldn’t have that kind of information I was asking for at the branch level, and handed me a brochure where I could find the contacts for the bank’s ombudsman.
I have to say it was hard to read what the second teller and manager thought about FATCA. Unlike the first teller, they sure didn’t let their thoughts be known. I do have a feeling though that when someone comes in and wants to talk about FATCA again, they’ll go straight to giving them the brochure instead.
Norman, I am surprised that TD bank actually answered your question. Yes, maybe TD does monitor Brock…
Bubblebustin, it makes no sense that you should have to go to the Ombudsman to get this simple question answered — the branch manager should do this on your behalf and pass the question on to the FATCA task force whatever at head office — but please pursue this with the ombudsman. Whether CRA passed on your bank info to the IRS is a separate issue that the bank cannot address.
I have yet to receive a response from CIBC on my request.
I know another person who has made a similar request — the bank’s response is a very strange non-response. Any others willing to make the request?
— I think that there is “harm” if the banks give you the runaround in confirming whether they have violated your privacy rights.
@Stephen
I think the teller meant that I should contact the CRA to determine whether they received my banking info from RBC, which of course is unacceptable.
I agree that our bank branches should do more than pull a Sgt Schultz “I know NUH-THING!”, considering how important they are in the whole rounding up of USP’s.