“…The government of Canada has a responsibility to stand up for its citizens when foreign governments are encroaching on their rights…We believe that the deal reached between Canada and the U.S. is insufficient to protect affected Canadians…” June 2015 Pre-Election statement of Mr. Justin Trudeau (now Prime Minister of the Government we are suing) to a constituent
May 13 2017 Canadian FATCA Litigation Update:
SUMMARY TRIAL MOTION has now been submitted on Constitutional/Charter issues. We are finally moving closer to trial and our Vancouver litigators have now served and filed in Canada’s Federal Court a “Notice of Motion for Summary Trial”.
As detailed in this brief motion (see link) this is a pleading to the Federal Court of Canada for a summary judgement we are seeking on the Constitutional-Charter issues.
We argue in the motion that the Canadian legislation enabling the FATCA Intergovernmental Agreement (IGA) violates Canada’s Constitution Act (by forfeiting Canada’s sovereignty and facilitating the extra-territorial enforcement of a foreign state’s taxation and tax compliance regime on Canadians) and Canada’s Charter of Rights and Freedoms (Sections 7, 8, and 15).
Some of you do not consent to be “U.S. Persons”. There is this statement in the Motion:
“The contours of United States citizenship and the definition of US Person are matters of United States law and/or policy and are subject to be changed by the United States at any time.”
There is also this:
“It is a principle of international law that every sovereign state has the right to conduct its affairs without intervention by other states (the “Principle of Non-Intervention”). The Principle of Non-Intervention is at the core of the international legal order and is a corollary of every state’s right to sovereignty, territorial integrity and political Independence. The Principle of Non-Intervention is an element of the unwritten constitution.”
Will the Federal Court of Canada accept this Constitutional argument?
This motion is NOT the main, detailed legal submission (i.e., where all of the case law is discussed, etc.) which will be filed much closer to the hearing date (yet to be decided).
AFFIDAVITS. You will notice on pages 22-23 a long list of affidavit titles. Because of a technical issue related to the litigation, it is not possible to publish the text of these affidavits at the present time.
Some of the affidavits include those we previously submitted and those Government submitted – which we feel will help our case.
There are also expert reports from three witnesses (Ryan Liss, Roy Berg, Kevyn Nightingale) who were selected by our litigators to provide an expert opinion based on our litigators’ assessment of their expertise and experience.
In addition, there are affidavits listed from lay witnesses.
Our litigators made a strategic decision on the selection of specific lay witnesses for the trial from the larger group of volunteers. I thank the lay witnesses and all witness volunteers for their courage and commitment to push for return of Canada to Canadians.
LIKELY NEXT STEPS. On May 19, 2017 there will be a teleconference with Government, Case Management Judge, and our side to deal with the Government Motion to compel further documents from the three plaintiffs (we oppose the motion).
After the ruling, Examinations for Discovery of the three expert witnesses and the plaintiffs will be scheduled and conducted. Our lawyers will likewise examine the Attorney General’s witnesses. It is also possible that the Attorney General might examine our lay witnesses. We currently do not know if they will elect to do so.
Upon completion of the all examinations of the parties, and after filing all required submissions, we will await a trial date to be set by the court. Trial dates are dependent on the availability of Justices and court (backlog) schedules.
I know that the slow pace of our litigation is frustrating. Thank you for your continued support and kind thoughts.
Stephen Kish
@JC, Trudeau could have used the information from Arthur Cockfield https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=117948 to bring this up re NAFTA from the beginning – as the Harper FATCAnatics could have. But the Sunny Glibs and minions choose to talk tough on wooden shakes and shingles http://www.theglobeandmail.com/report-on-business/canada-weighing-multiple-trade-actions-against-us-over-softwood-lumber/article34908135/ , and not on the Constitutional and Charter rights of ordinary individual Canadians and families.
Clearly wood was deemed far more important than people.
@Stephen Kish
How do I view this statement from the CRA?
“CRA answers: “In response to Q. #37, the CRA is unable to provide an estimate as requested at this time in part because it is not possible to speculate as to whether any such information will have any impact on any assessment or status at this time.”
I see it as an admission that the CRA will use the info it obtains from FATCA for its own tax enforcement purposes, just as it will for other countries that have signed similar IGA’s. Has the US legal team been made aware of this insidious aspect of the IGA and how it further disregards our 4th Amendment rights?
Bubblebustin,
CRA could have answered: “The CRA will not use any data obtained from Canadian residents as part of the FATCA IGA legislation for domestic purposes”.
@Stephen Kish
I guess if they’re going to throw us under the bus once, a second time doesn’t matter.
Maybe this additional benefit is the US’ idea of reciprocity, because Canada ain’t getting any through an exchange of information on Canadian residents with US bank accounts – at least no more than what they were getting before the FATCA IGA.
You’d think Ms Bean would like full FATCA reciprocity for all the extra reporting it could provide on certain domestic taxpayers potentially.
@bubblebustin
“I see it as an admission that the CRA will use the info it obtains from FATCA for its own tax enforcement purposes, just as it will for other countries that have signed similar IGA’s. Has the US legal team been made aware of this insidious aspect of the IGA and how it further disregards our 4th Amendment rights?”
,and @Stephen
“CRA could have answered: “The CRA will not use any data obtained from Canadian residents as part of the FATCA IGA legislation for domestic purposes”.”
Thanks for pointing out that issue. Another way in which our own government is burdening some Canadian citizens/residents/taxpayers in Canada of a certain national/ethnic origin and/or parentage and/or birthplace vs. others. Which I would think would be a Charter issue. Maybe the US sold the IGAs to other countries as a way to use the information collected their own domestic taxpayers as a wholesale domestic fishing expedition. Perhaps that would be an interesting FOIA to see if that was ever mentioned.
@badger
“Maybe the US sold the IGAs to other countries as a way to use the information collected their own domestic taxpayers as a wholesale domestic fishing expedition”
The thought had crossed my mind. You’d think increased reporting fanatics like Ms Bean would love the thought of full reciprocity for that very same reason, after all she did say she’d like to trade 1099’s for fully reporting FATCA style for bank accounts in the US.
@Bubblebustin, I see your point about Bean. But I think maybe she knows that as we see, the US can use its might and extort the rest of the world, but not get sufficient bi-partisan support for burdening US FIs the same way with true reciprocity – and US domestic voters wouldn’t stand for it – and neither would politicians of both parties.
We’re convenient as scapegoats and symbols who can be held up for scorn and insult with impunity. This is about a crusade and a belief system and not about logic and reason or what is just and fair.
I recently met yet another Canadian dual who renounced – usual reasons – to protect Canadian family and pension and be able to participate in savings and work/business opportunities without the US confiscatory formcrime burden, pitfalls and complexity and compliance costs. Left the US before adulthood. Didn’t know about US extraterritorial CBT or FBAR, etc. No US ecomomic connection. Spent several tens of thousands on US lawyer and accountants. Zero or minimal US tax actually owed. Not a millionaire.
@badger
That’s the kind of story we hear all too often.
@badger @Stephen Kish
The Canadian government claims that the IGA was entered into to allow for treaty protections. I don’t know where it says in the treaty that the Canadian government is allowed to collect unprecedented levels of information on its own citizens, and without probable cause.
Why did the Canadian Government pass new legislation to enable the FATCA “agreement” with United States?
In the November 10, 2014 “Statement of Defence” the Government of Canada explains:
“… The Impugned Provisions are reasonably necessary to achieve the dual goals of relieving Canadian financial institutions and their clients of the potential for crippling tax and commercial consequences of non-compliance with FATCA and furthering Canada’s international commitments to share information for the better administration and enforcement of taxation laws.
Further, these objectives are of sufficient import to warrant limiting any right [which pre-FATCA IGA was provided to Canadians like Bubblebustin, Badger, and Stephen] which may be infringed and any infringement is proportional to the objectives and to the benefits conferred by the Impugned Provisions…”
@Stephen Kish
“Further, these objectives are of sufficient import to warrant limiting any right [which pre-FATCA IGA was provided to Canadians like Bubblebustin, Badger, and Stephen] which may be infringed and any infringement is proportional to the objectives and to the benefits conferred by the Impugned Provisions.”
If they’re referring to the CRA using my banking account information for their own purposes, then they are exercising a deliberate and unnecessary choice to do so. They have the option of not using it rather than infringe on my privacy rights. The IGA does not give them license to do that.
…the CRA is simply being opportunistic – on no suspicion of wrongdoing.
Grrrrrr……
@ Bubblebustin
It’s another case of discrimination isn’t it. Your next door neighbour (Canadian only or a dual with any nation other than the USA) does not have his bank account details sent along to the CRA. (Don’t think for a minute they won’t look at this info and use it for their own purposes, no matter what they say.) This should be viewed from a Canadian-centric position. Unfortunately our Canadian government chooses to view this from a US-centric position. That’s wrong, just totally wrong.
BTW, I just picked up the phone to hear a recording-like voice say: “This is Officer ? of the CRA notifying you that you are under federal investigation ….” I slammed the phone down at that point.
@EmBee
Shame you hung up: to have witness who is a victim of fraud brought by mishandling of the FATCA files by the CRA would seriously advance our case.
@ Anonymous by Necessity,
The scam that EmBee hung up on sounds like one that’s been in the news a lot this past year. It isn’t related to FATCA or a data leak (from the call I got and from what I’ve read about people who fell for the scam, the scammer doesn’t seem to know anything about the person). They just ring phone numbers and tell the person that they owe a big tax bill and will be jailed immediately (as I recall from a call I got, that a cop is on the way to arrest you). Apparently if the person believes them, they are told that they can avoid going to jail, if they pay the bill immediately with iTunes cards!
Here’s an article about how it works. This article came out when they arrested an operation in Mumbai in March, but apparently there’s still others doing it.
@EmBee
The CRA has already stated it would use the info for its own purposes.
The scam that EmBee hung up on sounds like one that’s been in the news a lot this past year. It isn’t related to FATCA or a data leak.
Yes, for months I was getting almost daily calls from the CRA scamphone. I told them to go after Gwennie instead of innocent me. Perhaps they did because I haven’t heard from them in ages. Plus I recognize most of their phone numbers and don’t answer. Their recorded message about the outstanding warrant for my arrest was only funny to hear the first time.
I was aware of the scam which is why I hung up. Also it’s sort of a reflex action I have with these robo-call things. Big giveaway on this one is that they do not even try to verify who they are speaking to so that day they were speaking to an annoyed person X who only gave them one word to work on — hello. I didn’t even say goodbye.
This is a scam operating out of India and targeting Canadians and US citizens. They look for internet database of US citizens and Canadians with US being the worst as they have simply no privacy laws. A lot of Indian Americans have been targeted by their fellow compatriots from India calling them about unpaid IRS tax bills and some of them paid those fake tax bills with iTunes cards. This was all over the news a few months ago. With IRS trying their failed approach several times in the past to hire private tax collectors is now again outsourcing tax collections to private companies to chase people for collecting taxes. Don’t know what would happen with the data being released again to private companies? How would you differentiate between genuine collectors and scammers?
SMH – iTunes cards?
You Thought Your Information Was Safe With The IRS:
https://www.taxconnections.com/taxblog/you-thought-your-information-was-safe-with-the-irs/#.WR2rJVQTGhA
Here is the story here. Yes iTunes and gift cards were used according to the story. There are lots of cases like that all over google.
http://www.latimes.com/world/la-fg-india-irs-scam-20161027-story.html
Your information is not safe with IRS as much as you think. Even their employees are in the news every now and then for identity thefts and false refunds on tax returns. This is all from information taken out of your tax returns.
@ Bubblebustin
That got me SMH-ing too. The first I read about this scam last year was in an article about a 65 year old woman who was tricked into buying iTunes cards [thinking it was] to pay CRA and it mentioned that the elderly were particularly susceptible. My first reaction when I read of the iTunes cards was also SMH, and also that I’d think this one scam where the “elderly” would be less susceptible – 40+ years of writing a cheque to the Receiver General for Canada, it becomes rather a habit!
My other reaction was the journalist’s choice of adjective for a 65 year old. Elderly, my foot! (I’m 63) 🙂
BTW: I still write out my return by hand and this was the first year I didn’t pay CRA by cheque – used electronic transfer, though, not iTunes 🙂
Take heart, Pacifica. We’re senior middle-agers.
@Stephen Kish
“I know that the slow pace of our litigation is frustrating. Thank you for your continued support and kind thoughts.”
Thanks for this update. Not surprised that litigation is slow. I’m just grateful that it’s ongoing and will continue to follow the process.