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
For those who aren’t familiar with the Hogans Heroes character, Sgt Schultz and his predictable response:
http://youtu.be/UmzsWxPLIOo
Being born inside the USA makes you a citizen. Having one or two American citizen parents and being born abroad DOES NOT AUTOMATICALLY make the child an American. The parent(s) have to meet a specific residency requirement. The parent(s) have to had lived inside the USA for a specific number of years to transfer citizenship. When I went through the process to “claim” my American citizenship that I was scared into by a border guard, it was a big ordeal with my parent having to track down documents decades old, affidavits from neighbours, transcripts, and many other documents to prove my parent met the strict residency requirement. There is no way a bank would be asked to do that. Using a computer system to comb through your files to look for USA phone numbers or addresses is totally different. So are banks going to ask people to provide their parents school transcripts and conduct an investigation to prove where one of its customers parent(s) were born? I don’t see that happening. At that point I think the banks take the Americans to court.
I totally agree that it is very unfair that some people are being harmed and others are not at this point. However, I don’t in any way agree with the notion that “since I am going down everyone should go down with me”.
“There is no way a bank would be asked to do that.”
I tend to agree. Even if a government threatened to force such a thing on banks, banks would give campaign donations to make the threat go away.
However, the result is that the bank has to assume it’s possible that the person might be a US citizen, and report the account regardless.
The IRS should get 7 billion reports from around the world and the IRS should figure out which ones it wants to keep.
Unjust Laws .. Lawfare … has consequences on ordinary people and stimulates the development of an underground economy …. recent articles …….
http://jamaica-gleaner.com/article/business/20151014/correspondent-banks-cut-ties-black-market-seen-emerging-risk
http://jamaica-gleaner.com/article/business/20151014/jn-money-service-hit-usd-shortage-cayman
Does FATCA as a law have all the components it takes to fail? You decide.
The Implementation Gap: What Causes Laws to Succeed or Fail? David Barnhizer
Abstract:
It is important to go behind the “paper systems” many countries and private sector actors have created to manufacture the appearance of commitments to responsible economic activity, environmental protection and social justice. This produces the need to penetrate the veils that mask governments’ “apparent compliance” with the terms of sustainable development, and to be honest about the inability of voluntary codes of practice to shape the behavior of business and government.
Implementation requires effective systems to carry out the law and policy mandates. Laws and policies are often poorly designed or deliberately sabotaged in their creation, but in many instances the ineffectiveness occurs at the level of the implementing agency or ministry. Inadequacy and sabotage at this level tends to be more invisible than at the point of enactment where politicians seek to take credit for their “positive” actions. Laws and policies are sabotaged both in a law’s creation and in their application. One common form of sabotage is that an intended gap is built into the formulation of legal standards that use law to create the appearance of law without creating “real” law.
A common strategy is that the language is made to appear powerful and eloquent on the surface in the form of a legislative “sound bite” while containing qualifications that dilute and impede the actual effects of implementation. This can be done by imposing exceedingly high (or expensive) standards of proof on parties seeking to enforce the law through private actions. Or it may require complex processes that take long periods of time, delay outcomes and impose significant financial costs. Another strategy incorporates assumptions of validity regarding agency decision-making, or requiring levels of empirical proof in situations most appropriate for political, preventative and legal standards of validity that operate on different levels than that of hard science.
Even if the tests of validity applied to a legal standard or policy are agreed on, it is common practice to sabotage the efficacy of a law at the executive and regulatory levels where laws are implemented and enforced. This is done by underfunding essential functions necessary to implementation. The law may impose significant duties on the entities being regulated but construct a system in which the staffing and other financial resources required for monitoring, processing and implementation are grossly inadequate. Failure to support the core costs of implementation results in inadequate staffing of the components required to make the system work. This occurs on the level of investigation, monitoring, training, inspection and enforcement.
…”strategies fail in their original conception or their implementation for reasons that include:
1. Inadequate understanding of the needs being addresses
2. Failing to include factors whose inclusion is integral to effectiveness
3. The law is too broad and ambiguous
4. The law tries to do too much
5. The law is too narrow to deal with the situation…”
Read more:
http://works.bepress.com/david_barnhizer/79/
@Phil, as the Canadian Govt Lawyer said…its the law.
US Citizens, regardless how they are US Citizens are included in the dragnet.
If a law is discriminatory, it must fall period.
A person born in the US is equally a US Citizen to someone not born in the US but with an appropriate parent combination, period.
Was Ted Cruz less a US Citizen not having a US Place of birth? Of course not, he was a full USC entitled to run for the highest US Office.
I am happy for ANY dolphins to escape the tuna net which does include some born in the USA!!!
The FATCA law and the Tax Code says US Citizens…full stop.
It does not say US Citizens born in the USA but excluding US Citizens that need a closer look, it says US Citizens.
The FATCA IGAs are discriminating amongst sub-classes of US Citizens.
Discriminatory laws MUST be brought down or they must be amended to not be discriminatory.
I want this discriminatory law to FALL and in order for it to fall all so called USC outside the USA need to be in the same boat.
To NOT bring up this crystal clear aspect of discrimination in the IGAs would be foolish to the cause of bringing the whole thing down!!
@Phil “So are banks going to ask people to provide their parents school transcripts and conduct an investigation to prove where one of its customers parent(s) were born? I don’t see that happening. At that point I think the banks take the Americans to court.”
I want the USA and their Foreign Partners to have a non-discriminatory program.
The problem is that to be non-discriminatory you have to be even more intrusive and the paper work grows and grows.
A proper FATCA IGA will have both the USA and partners saying this is nuts, lets scrap it.
@George
I could not have said it better myself. I hope that others will read Prof Barnhizer’s paper in my above post. Although it’s geared toward the environmental movement the principles are the same. Some laws are destined to fail for various reasons. FATCA may just fail because the IRS will continue to lack the resources to implement it. Drawing attention to how it fails to do what it’s intended to do, that is to root out USPersons, can only benefit us:
“2. Failing to include factors whose inclusion is integral to effectiveness”
That said, the IRS may just decide to continue its unofficial policy of passive enforcement against its non-residents, and focus on only higher net worth individuals abroad who make it worth the effort.
@George @Phil
Obama didn’t seek to allow accidentals to leave the system just to be nice. Maybe he did it to try to elimate something that could take the whole thing down – CBT included.
In the profound words of Nathan Cullen, one of the few who has shown integrity in speaking on behalf of All Canadians,
Quote
Why the government wouldn’t vote to clarify that the Charter of Rights, the Bill of Rights, the Human Rights Act, the Privacy Act, the Official Languages Act, and the Access to Information Act will supersede anything we sign in this tax treaty is beyond me. If it’s redundant, then so be it. Let’s have a redundant aspect of a legislative bill. I’m stunned that something so obvious can’t be accepted into law.
Unquote
Alas, the Conservative government took the easy path and let Congress rather the Canadian Parliament speak. They were duly warned.
This is a prime example of what your comment talks about, bubblebustin
It’s like I tell my kids, Calgary411,
The path of least resistance is twice as long.
This is what the Crown does — delay until people lose energy…
And, I’d add funding from much needed donations as we see with the ADCS litigation.
@Calgary411:
Thanks for this video update on this case. It , once won, IF won, would have profound implications to Canada as a whole. As Rocco mentions at the end of the video, ‘they should care because the interest paid is over 1 trillion dollars’ – which begs the question WHY is the government working against the best interests of Canada when 0 interest loans used to build Canada in the past would go a long way toward RE building and renewing infrastructure and businesses in Canada!
(AND WHY was it changed without anyone knowing ? Certainly not to benefit Canada but to benefit banks and the BOC, which was created to benefit Canada and Canadians and NOT banks!)
Patience and money to make things right while our own tax dollars are wasted to fight what should never have happened in the first place! Good lessons to learn from this case, not the least is the need for patience and money for funding.
It is frustrating to know these laws are designed to fleece countries and end their sovereignty all for the benefit of the few and nefarious!
I look forward to the debate in the HOC on TPP!!
In addition to a favourable ruling in BOC v Comer case, our own case, the TPP just has to be stopped. It has nothing to do with trade and everything to do with ending sovereignty.
George,
Of course FATCA is wrong and should be brought down. I also think there is nothing wrong with bringing to light the issue. I would just stop there though. I wouldn’t want to include others in the dragnet to make me feel better about the injustice I had to endure. I also think there is a big difference between a bank looking at someone’s birth and doing a thorough investigation on the childhood of a customers parents.
Interestingly here is an example of a situation where the US will share information with Canadian authorities but Canada will not reciprocate:
http://mynorthwest.com/1024/2825742/Why-Canadians-dont-have-to-pay-for-tolls-on-I405
I think this might be specific to BC and Washington. I do think for example Ontario and NY State enforce toll violations on each other but it is probably because ON and NY share ownership of several toll highway bridges. I know in Maine and NH for example New Brunswick drivers can evade tolls with impunity basically.
@Tim
At least with regard to the situation in WA the article isn’t referring to toll violations but simply to the standard mechanism for paying the bill. You drive on the road, a camera takes a photo of the license plate, and you get a bill in the mail a few weeks later. You can purchase a transponder which gives a discounted toll rate but for a visitor to the area only expecting to drive on the toll roads once or twice it wouldn’t be worth the cost and hassle.
The article is claiming that they can send these bills to all 50 states but NOT to BC–it isn’t 100% clear what happens for other Canadian jurisdictions.
But the article does claim that it is a Canadian federal law that is blocking the handover of the driver’s data. The situation would be a little different if–say–you cross the Lewiston – Queenston Bridge via an E-ZPass lane and under Isaac’s watchful eye it is noticed that you don’t actually have an E-ZPass. In such a case the driver has violated the law.
In WA there is no violation of the law involved if a Canadian driver uses a toll road. The violation would only come into play if someone ignored the bill they received in the mail–but there is no way to send bills out to Canadians apparently. The toll collection on the WA roads is more like the 407 near Toronto and not so much like E-ZPass.
Sir Isaac I meant.
“the IRS may just decide to continue its unofficial policy of passive enforcement against its non-residents, and focus on only higher net worth individuals abroad who make it worth the effort.”
Or the IRS may just decide to continue its unofficial policy of focusing on penalties against its non-residents because minnows can’t afford to fight back, while ignoring higher net worth individuals who know how to fight.
Do you know of any minnows who’ve been penalized since Streamlined was enacted? Even I, who entered OVDI to opt into Streamlined wasn’t assessed FBAR penalties and was reimbursed failure to file penalties. Might be a different story for those who choose not to capitulate, though.
I don’t think the IRS is reluctant to pursue high net worth individuals. It didn’t take Boris Johnson long to change his tune.
@Bubblebustin
If Mr Johnson was just a well to do private person… bet u he would have hired the best lawyers available to fight them. He is a public figure in the gov’t who I think was hawking a book… he wants to further his gov’t future… its cheaper & easier for him to just give up… he’s got more to lose then the average joe… he is relying on voters… who may see him as a tax evader because he is wealthy rather then the real truth… people want to see what they want to see, no matter if its true or not…
I hired the best lawyer in BC – perhaps one of the best in Canada. There was no way to mitigate the tax owed on the sale of our home if a significant amount of time passes after you sold it. You see, like Boris, had I known about my tax filing obligations BEFORE selling my home, that would have made all the difference in the world. You bet I would have either not sold, renounced and sold, or taken other perfectly legal route to not having to pay that tax. It’s the unknowing who’ve had easily discoverable significant tax events in recent years who are going to get flagged, and there is nothing any high priced lawyer can and will do about it once your account info’s been handed over to the IRS. The IRS would have gotten Boris on his FBAR’s – then you’d better believe they’d have hammered him with penalties if he’d tried to slip that by them.
We did have the option of doing nothing or QD – but even then QD was being warned against, which practitioners are now saying will earn you your “own place in hell” if you are caught.
Doing nothing was out of the question, although had Streamlined existed at the time I would have certainly entered that instead. Like Boris, that still wouldn’t have gotten me out of the woods because although the sale happened outside the time parameters of Streamilned, the six years of FBAR’s didn’t.
@Bubblebustin
If u had known any of this prior to any big event… it would have been different… I sure as heck would have done things way more different then I did… but there is nothing one can do now… u are doing what u can to warn others of what happen to u… best thing u can do is share your experience just like u and many others on this mb have been doing…