March 22, 2018 Canadian FATCA IGA litigation update:
The attorneys for our side (our side are Plaintiffs Gwen and Kazia, the Alliance for the Defence of Canadian Sovereignty — the “client”, and our supporters) and the attorneys for Mr. Justin Trudeau’s Government have just agreed on the timing for the next steps of our Canadian FATCA IGA lawsuit in Canada’s Federal Court.
Here is the new timetable for our litigation:
— Defence [the Government] evidence, except one expert report, filed April 16, 2018;
— Last defence expert report filed April 30, 2018;
— Notice of any objections to expert reports provided by June 15, 2018;
— CMC to discuss scheduling of any applications to strike all or portions of affidavits in
— Cross-examinations completed by July 31, 2018;
— Plaintiffs argument served and filed by September 28, 2018;
— Defence argument served and filed by November 16, 2018;
— Plaintiffs’ reply served and filed by December 7, 2018;
— Hearing the week of January 28, 2019, subject to the Court’s availability.
The key update is the hope/expectation that the Federal Court hearing will take place in January 2019.
Yes, I know that our litigation has been moving at a glacial pace. Sorry…
Glacial, but grateful it’s still moving. Thank you.
I am also grateful the lawsuit is moving. Any word on where the Federal Court hearing will be? We can still hope that the beginning of the push back will emanate from Canada.
The government lawyers are delaying at every opportunity because they know in the end they are going to LOSE.
The government needs time to get its lies in order so that it will win. They have to double-check to make sure that none of their lies are the “wrong kind” of lies that might lead to a loss.
Glad for this progress. The delay has been awful…. But at least we have some sort of time line to the court room.
Thank you to all who have worked so hard on this and in particular to ALL the plaintiffs.
Thank you to everyone who have worked so hard to see this become a positive outcome of which i am sure will happen. Everyone’s efforts are much appreciated.
Tweet:
Canadian #FATCA IGA litigation Scheduled.
If the FATCA IGA law gets invalidated by the Supreme Court of Canada because it violates the Canadian Charter of Rights (prohibits discrimination by national origin), will U.S. say Candian rights < U.S. Law?
Please RT/Like:
https://twitter.com/JCDoubleTaxed/status/977015040954920962
JC says – “If the FATCA IGA law gets invalidated by the Supreme Court of Canada because it violates the Canadian Charter of Rights (prohibits discrimination by national origin), will U.S. say Candian rights < U.S. Law?"
There is a legal distinction here with this case as far as I am concerned. Further, there are two classes of people with regards to this Supreme Court Of Canada Case, Canadian Citizens that are also US Persons (Citizens / green card holders / spouses / accidentals AKA registered to US Consulates foreign birth abroad) AND those others that are only US Citizens including the list above. The Court Case is about the Charter Of Rights for Canadians and the ruling will only affect us as Canadians regardless of other Citizenship. This is where the crux lies, The Canadian Government must protect the rights of Canadians first as is generally the rule in international law. As long as the ruling is aligned with The Charter, as it should be, then the Government will have some work to do revising agreements and amending IGA's to exclude Canadians from the dragnet of FATCA. The US Government can say what it wants, it's authority stops at the border, period. For only American Citizens, nothing changes and they must chose to deal with or not deal with the IRS at any point when a certain threshold is met and a report is sent. American Citizens only will not gain or lose any benefit from the Supreme Court Ruling.
In addition, the work around exemptions to privacy laws in the Omnibus Bills of that past that screwed Canadian Dual US Citizens living in Canada, will have to be expunged.
This is about Protecting Canadians, especially those living in Canada (as I will be soon moving back to Montreal) and providing Canadian Citizens the same rights, protections and privileges uniformly.
Just to be clear, this next stage is still at the Federal Court Level. This is NOT being heard by the Supreme Court at this time……….
Where this is leading.
To a change in the question by banks:
FROM: are you a U.S. Citizen or U.S. resident
TO: are you a U.S. Citizen or U.S. resident, but not a Canadian Citizen resident in Canada
That is a mouth full.
Hopefully, lots of highlight of the injustices (as in the pre trial) along the way, and embarrassment of the U.S. government for their overreach as they are forced to respect Canadian rights.
” embarrassment of the U.S. government”
The US government isn’t embarrassed by breaking US law so why would it be embarrassed by breaking anyone else’s law?
anybody consider adding some 14% transition tax victims to the case?
Thank you for your efforts, and thank you for the update.
JC:
Alternatively, the AEOI due diligence questions could ask if the accountholder is a Canadian citizen, followed by questions to establish whether the citizen does or does not meet Canadian criteria for Canadian-only residence/domicile.
If the Canadian accountholder is resident/domiciled only in Canada, the account would not be reportable under any AEOI regime since the account would be a domestic account.
Canadian accountholders with US citizenship, if they wished to maintain IRS-compliant status, could presumably be required by the bank, as a condition of keeping the account, to waive their rights to privacy to allow the account to be reported by the bank direct to the IRS.
In that way, bank access problems would stop being a problem of birthplace and become a consequence of compliance.
@plaxy you describe opt in. I think the TTFI draft has started with the idea of opt out, which would mean some filing/form for Accidentals. Opt in is a fairer way for Accidentals, IMO.
JC – I was referring to (possible) changes to Canadian law implementing AEOI – not to US law.
The IGA questions at present hunt down persons (including Canadian citizens) born in the US. If the case is successful, that would have to stop (if I understand correctly). But (I suggest) Canadians with USC wishing to maintain US compliance could opt to waive privacy rights, so that banks could meet their US tax obligations since if compliant the dual person is already reporting the accounts to the US.
There would be no need for a bank to ask any questions except about Canadian citizenship, and Canadian-only residence/domicile (genuine residence/domicile, not deemy-dreamy tax-residence in Washington DC.)
Hallelujah! It’s great to have a tentative date we can put on our calendars at long last. Thanks for this information, Stephen.
Thank you, as always, to you Stephen and our brave plaintiffs, and all the others that started this and keep it going on all of our behalf, for lo these several years now.
You have hung in there, for which we are eternally grateful. We are still here too.
Let the Sunny Glib government of Canada be aware, though you take on the CON mantle, the emperor is still naked and we bear witness that he is.
@plaxy
This was actually what would have happened if they had been able to implement FATCA which of course was impossible. Allison Christians described this during the FATCA Forum in Dec 2012. “Waive your rights” she exclaims (in disbelief and horror).
http://isaacbrocksociety.ca/2012/12/31/fatca-fact-finding-forum-part-5-of-9-allison-christians-fatca-and-international-tax-law
And the govt, predictably passed a law to break the law and voila!
@arvay
Interesting, and thanks. If I understand it, a successful outcome for Canadian citizens (those who are also residents) would codify what is already de facto the case: compliance for duals w/out US financial ties is essentially pointless/voluntary because the US has no ability to enforce penalties (which is to say FATCA reporting does no “real” harm, at least not to those who aren’t scared into filing returns).
To some extent this looks like US expats being thrown under the bus to save duals/accidentals, but I’m basically okay with that because it’s not exactly difficult to obtain Canadian citizenship.
In Canada this is all to some extent moot because banks don’t really enforce FATCA rules with any great diligence. Nevertheless it would be worthwhile changing the IGA to protect dual citizens against future tightening of the rules (as exists today in Europe) and to prevent luring innocent duals into US tax compliance.
Patricia Moon –
“This was actually what would have happened if they had been able to implement FATCA”
It’s effectively what happens now to all US-born with no CLN, isn’t it? Not optional. (Or not in my country.)
Nononymous – “FATCA reporting does no “real” harm, at least not to those who aren’t scared into filing returns).”
FATCA reporting absolutely does harm, as it takes away the autonomy of individuals not even resident in the country.