WITNESS SEARCH UPDATE FOR CANADIAN FATCA IGA LAWSUIT:
WE STILL SEEK MORE CANADIAN WITNESSES:
Have you experienced marital stress or breakup, or medical or psychiatric illness because Canada turned you and your family over to a foreign country — or because you were afraid and entered into IRS compliance and suffered harm, or because you are in “hiding” and can’t afford to be IRS compliant or to renounce? Be a witness.
No single witness will be “perfect” from a litigation point of view. We will be seeking more witnesses (almost) right up to the time of submission of court documents. Your specific situation, that we cannot predict, might have unique characteristics that would be helpful in the lawsuit.
If you cannot be a witness, please tell a friend who you think might be interested.
— If you are interested in becoming a witness You will describe your harm in a written affidavit which will be made public and you can contact me at stephen.kish.chair@adcs-adsc.ca See our website at www.adcs-adsc-ca
FOR THOSE CANADIANS WHO ALREADY VOLUNTEERED: Unless you have already been informed by me or by our legal team that you will not be a witness, there is still the possibility — or (for some) likelihood — that you will be asked to be a witness. I’m sorry but I cannot estimate the time it will take for our legal team to get back to you with their decision. This is because they need to “mesh” the characteristics of all of the necessary witnesses and testimonies with the actual detailed submission that contains the entirety of their evidence, which are all still evolving. Please be patient in our getting back to you with a decision. Thank you for your help.
@John
If you have signing authority on the bank account containing the condo contingency funds, and you are a US “person” then if you are filing an FBAR the answer is yes. Ownership of each suite isn’t an issue; I cannot see where or why a bank would ask for that info as far as FATCA goes.
@John Canuck
http://www.timescolonist.com/condo-smarts-tale-of-two-tax-men-and-strata-corporations-1.178211
@ Embee
I have a feeling that’s going to be a shock for some strata corp members. Now it’s going to be a new form of discrimination called Get To Know Your Neighbours. And don’t let those damn American Canadians move in.
@ Canadian Ginny
I think your comment was meant for BB not me. The tentacles of the FATCA monster will slither into every nook and cranny searching for tidbits of USness … even condo boards.
Right; I got my Bs mixed.
I remember reading somewhere, if a credit card has a positive balance of $50,000 US it is reportable for FATCA.
Is there any news on Obama imposing the 30% withholding on countries that not have nor negotiating a IGA.
What is happening with China IGA negotiation. I think the Chinese would like to impose citizenship taxation and they may demand the USA supply information on their citizens. This may kill off FATCA, US banks do not want to report on foreign resident including dual citizen is just too much.
A conventional Republican would throw it out but Trump is not a conventional Republican
I do not think Clinton will throw out FATCA.
From the top of this post asking for witness volunteers:
I am assuming that most regular Canadian readers of Brock have already decided to volunteer or not as witnesses. For those who will not volunteer can you help me find (word of mouth I now think is the best) others who will? I expect that we will be making some filings to the Court “soon” (and will let you know when this happens) but the key submissions with witnesses will be a bit later.
New volunteer numbers have dwindled, but I still receive requests from good volunteers with their Kafka stories. Can you accept that our lawsuit is “as good” as our plaintiffs and our witnesses? There’s still time to find more witnesses.
— If you are interested in becoming a witness You will describe your harm in a written affidavit which will be made public and you can contact me at stephen.kish.chair@adcs-adsc.ca See our website at http://www.adcs-adsc-ca
“I got my Bs mixed.”
@All
I live in a area which is a community corporation which simply means that the owners of the units collectively own the common area. The board raises money for insurance or maintenance of the community property. The community corporation does not earn any income.
If the corporation opens a bank account does the bank have to ask if any of the owners for the units in the corporation are US persons?
Any help appreciated
Cute, ND.
I sometimes get a similar reaction.
-BB
@billy – As I understand it, FATCA/IGA only requires the bank to ask about the actual accountholders. If the account is a joint account with all owners named as joint accountholders, the bank is required to ask the US-Person question about each of them. If the account is opened in the name of, say, two or three members, only those two or three people have to be quizzed about US-ness.
But in my country (UK), a bank can ask whatever questions it wants to ask, regardless of whether FATCA/IGA requires it. If the unit owners are legally the beneficial owners of the account, the USP question might well be asked – not for FATCA reasons but for AML reasons. But that’s in the UK. I don’t know if the same applies in Australia.
From the top of this post asking for witness volunteers:
I don’t understand exactly what the IIAC is getting at here http://iiac.ca/wp-content/uploads/IIAC-Letter-re-871m-June-2016-Final.pdf , but re some provision of FATCA they say “…we are concerned about
the serious potential for double taxation for non-U.S. persons.”…
And as they supported the FATCA IGA, and are no friend of Canadian sovereignty or ordinary Canadians affected by FATCA, I figure that if they are seriously concerned, it is worth someone looking at the issue.
In an email letter they say:
“6) Implications for Domestic Tax Reporting Requirements: Our members are currently considering
the complications that compliance with section 871(m) withholding and reporting requirements
will cause for Canadian tax reporting requirements, and whether there will be tax filing challenges
faced by our clients and counterparties due to inconsistent characterization of payments subject
to section 871(m) under the Canadian and U.S. tax rules. In particular, we are concerned about
the serious potential for double taxation for non-U.S. persons. We may follow up with additional
comments on this subject after consulting with the Canada Revenue Agency”….
See:
June 2, 2016
Marjorie Rollinson
Associate Chief Counsel (Int’l)
Internal Revenue Service
1111 Constitution Avenue, NW
Washington DC 20224
Marjorie.A.Rollinson@irscounsel.treas.gov
Karl Walli
Senior Counsel – Financial Products
Department of the Treasury
1500 Pennsylvania Avenue, NW
Washington DC 20220
Karl.Walli@treasury.gov
Delivered via Email
Re: Further Comments of the Investment Industry Association of Canada (IIAC) on Final and Temporary
Regulations and Proposed Rulemaking on Dividend Equivalents from Sources Within the United States
(REG-127895-14) (the “Regulations”
http://iiac.ca/wp-content/uploads/IIAC-Letter-re-871m-June-2016-Final.pdf
Perhaps there is some fodder for demonstrating harm to Canadians?
Stanstead QC mentioned in this story about border towns, but the comments (still open) don’t mention US taxes and border babies, or FATCA, FBAR and US extraterritorial CBT.
https://www.washingtonpost.com/world/the_americas/along-the-us-canadian-border-frayed-ties-and-daily-hassles/2016/05/31/133230cc-241b-11e6-b944-52f7b1793dae_story.html?utm_content=buffer233c5&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer
New by Prof. Allison Christians;
Christians, Allison, While Parliament Sleeps: Tax Treaty Practice in Canada (May 17, 2016). 10 J. Parl. & Political L. 15 (2016). Available at SSRN: http://ssrn.com/abstract=2780874 or http://dx.doi.org/10.2139/ssrn.2780874
Abstract;
” Abstract:
Canada’s Parliament plays little but a perfunctory role in the adoption of tax treaties, even though these agreements have significant impact on Parliamentary autonomy over core national budgetary matters as well as core legal and administrative functions. This article argues that Canada’s tax treaty process reflects a studied and intentional preference against public engagement in international fiscal policy, and that this stance has a negative impact on the rule of law. The article demonstrates the governance issue posed by lack of meaningful Parliamentary oversight using a recent departure from stated treaty policy, namely, the passage of a controversial agreement to implement the Foreign Account Tax Compliance Act (FATCA), an aggressive and extra-territorial regulatory regime imposed on Canadian financial institutions by the United States. The article examines the implications of Canada’s approach to this and other tax-related agreements and concludes that a much more engaged and informed Parliament is vitally necessary to achieve integrity in Canada’s treaty process.”
This is not relevant to this thread, but I don’t want to start a new one.The question has been raised before, not for a while I think.
Has anyone been detained or questioned upon entering the US with a non-US passport that indicates a US birthplace? Asked whether they have filed taxes or FBAR? Forced to complete an application for a US passport?
Thanks.
Yes, one of my neighbors trying to enter US from Canada.
Detained and angrily questioned at border for showing US birthplace on Canadian passport but having no US passport to enter US. Specifically asked whether IRS compliant and told border officer that he only files in Canada as was not aware that he needed to file anything in US. Not forced to complete application for US passport but was told that next time he tries to enter US without US passport it will be “difficult” as he is now “marked”.
All others that I know with US birthplace and no US passport have never had any problem — and I suspect above person is an exception (but see below for more exceptions).
@Stephen Kish
“All others that I know with US birthplace and no US passport have never had any problem — and I suspect above person is an exception.”
I’m afraid not. I know several people who’ve had problems, including me.
I’ve personally been told several times by US passport control officers that it was illegal for me to enter the US without a US passport (I was born in the US). This was before FATCA became an issue, so none of them ever asked me whether I’d filed with the IRS (I didn’t find out that I had to until 2011, at which point I backfiled seven years as per the misguided advice of an accountant) so I waved through with a warning. After two or three warnings (it was never consistent, because half the time they didn’t even look at my passport) — I used to drive across the border regularly to visit friends and go shopping — I renewed my US passport, because one of the border guards bluntly told me I’d get into trouble if I didn’t have it the next time I tried crossing.
Anyway, the other piece of advice I got from both Canadian and American passport control officers was to show my US passport entering the US and my Canadian passport upon returning to Canada. In the past, I had always offered both until I heard from several of them that this was not a good idea. One American border guard even argued with me, saying that if I was Canadian then I couldn’t also be American. (Ha, I wish! Instead I had to pay to get my CLN earlier this year.)
I’d strongly recommend anyone with a US birthplace who’s not up-to-date with IRS filing avoid crossing the border. You might get lucky and not have problems, but it’s definitely a big risk.
Thank you, Stephen and WestCoaster. I haven’t entered the US since this issue arose. Maybe a year or two previously, a US immigration officer gave me the gears crossing at Ogdensburg for not having a US passport. She basically tossed the car. But of course unrelated to FATCA.
I have had no issues entering with an EU passport at overseas pre-clearance and a place of birth that is ambiguous in that it lists a place but no USA. I also have an ESTA and that may make it easier.
Note that I relinquished but do not have a CLN.
“Anyway, the other piece of advice I got from both Canadian and American passport control officers was to show my US passport entering the US and my Canadian passport upon returning to Canada.”
It’s been five years since my last trip to the States, so this advice is probably outdated now that they are more diligent about tracking border crossings. The above advice would make look like you entered the US and never left, which probably not a good idea so I’d go back to showing both passports if I were still a dual citizen.
Also, not that it should matter but I’m sure it does because I suspect they use profiling: I’m white, middle-class, Anglo name, no criminal history. If that weren’t the case, I’m sure they wouldn’t have let me in so many times without even glancing at my passport(s).
Stephen, you know me. Your neighbour is not an exception and neither am I. I was also told by the friendly US border guard that he’d be let across the border this time, but next time it must be with a US passport. I was duly intimidated and carried through, getting my first ever US passport. The rest of my story is at Brock. Nothing at the time asked about US tax filing.
@NorthernShrike
Sorry they tossed your car, that sounds like it would’ve been unpleasant.
@George
Starting in September 2016, they’re tightening the pre-screening process so you may have problems on a go-forward basis.
https://isaacbrocksociety.ca/2016/05/13/september-30-2016-another-blow-to-personal-privacy-and-freedom-of-movement/
Anyway, I have been told by the Consulate of the Dominican republic in Boston, Massachusetts that my application for a permanent resident visa has been approved, and all I have to do is go there and complete the process to get permanent residence and then citizenship if I want it. That’s if I don’t get elected to the United States senate, for which I filed yesterday in Concord, New Hampshire.
Campaign website linked from this post.
Hassled here, as well. Had never had a US passport. Was told I needed to get one. I actually argued with the border agent regarding citizenship, he was a very unpleasant individual. That was my awakening several years ago. I absolutely refused to apply for a US passport.
I did not cross after that, until I had a CLN. I’ve crossed once with that CLN, same crossing, least hassle I’ve ever had. Now I just skip the US altogether, despite seeing it from a block away.