The FATCA/AEOI Papers: Mishcon publishes research trove, unearthed as part of crowd-funded UK FATCA case https://t.co/NQRwGz1QDc
— U.S. Citizen Abroad (@USCitizenAbroad) July 13, 2020
Jenny’s UK based anti-FATCA lawsuit has been discussed on Brock here and here.
Americans abroad, Accidental Americans and American emigrants (collectively referred to as “US Persons”) are the targets of FATCA and US citizenship-based taxation. They did NOT create the laws. But, they are now the single biggest obstacle to achieving success in the courts, US Congress, US Treasury and engaging the interest of other governments. To put it simply: the very group that Jenny is trying to help is working (sometimes consciously and sometimes unconsciously) against her.
Here are the reasons why:
1. The basis of Jenny’s legal case is that the provisions of the FATCA IGA conflict with Europe’s GDPR. She has retained the services of a superb law firm and lawyer to advance this case. Her claim does NOT attempt to take down FATCA per se and her claim takes no position on US citizenship-based taxation generally. Her goals are narrow and based on the theory that the “fishing expedition” that is FATCA is not proportional when measured against the values enshrined by the GDPR. The legal fees are entirely reasonable and (given the tens of thousands individuals impacted) well within reasonable funding expectations.
Yet, at this moment there are only 504 contributions to her cause (and some of those may represent multiple contributions from the same individual). As many have pointed out, Jenny’s lawsuit can be easily funded. The damage is there and people are suffering. In Europe there have been problems with banking access and large numbers of people have been pressured to enter the US tax system. Yet, given a strong legal case, a great law firm and a cost that can easily be met, people will not contribute.
2. The reality is that the advocacy groups (Canada’s ADCS) have engaged in “crowd funding”. This has taken place largely at the Isaac Brock Society in Canada and on the American Expatriates Facebook group in Europe. Both the Canadian lawsuit and Jenny’s UK based lawsuit have had trouble meeting their funding objectives. But, the “public nature” of the funding failure is very damaging. Governments respond to public pressure. The governments of Canada and the UK are NOT governments that take the view that:
“The business of the public is not the public’s business”.
The failure to fund the lawsuits can easily be interpreted by governments to mean that:
– few dual citizens are actually affected by these problems; and/or
– few dual citizens are actually upset and harmed by FATCA and US citizenship-based taxation.
Clearly there is not huge public pressure on governments to take this issue seriously. By way of comparison, see the masterful job done by Radd Seiger in pressuring the UK government in the Anne Sacoolas extradition case.)
3. The failure by those impacted by FATCA and citizenship-based taxation to understand these are problems that are greater than their immediate interests. That said, most impacted simply (for whatever reason) are happy to let this problem pass on to their children. Why is this? How can this be? The following insightful comment from Facebook suggests an answer:
“I hate to be pessimistic but I do not think that Americans Overseas are united. They live in different countries, are dispersed, have different politics and will most always put their political party before other considerations. They are also in fear of and hiding from the IRS. Put that all together and you get a crowd of mainly disgruntled people who don’t have what it takes to get together. Really, really too bad.”
4. Because they can’t see FATCA and citizenship-based taxation as a problem that is greater than their personal circumstances, they imagine that the problems will go away through noncompliance. Noncompliance may be a personal solution for them. But, will NOT contribute to the efforts needed for this problem to go away.
5. As the Facebook comment above implies, “US Persons Abroad” are a diverse group. There is a small but not insignificant number of individuals who use social media to actively campaign against the wisdom of anti-FATCA advocacy. You will recognize them by claims which include:
No, it would be bad for a lawsuit against the FATCA IGAs to succeed. This would make it far more difficult for those Americans abroad who are flying under the radar …
Yup, those directly impacted, don’t have what it takes. Look where that leaves them. They won’t support the Jennys of the world and and frankly they are hanging her out to dry. Seriously …
The funding of Jenny’s lawsuit could have been and still can be so easily achieved.
Q. Why is Jenny’s FATCA lawsuit not proceeding?
A. Because those US person who could easily fund aren’t willing to make the effort.
It’s far worse than not funding the lawsuit. It’s actually strengthening the position of the governments, the government agencies and the government lawyers. If you were a government would you take this case seriously when:
A. On the way one hand contributions have been solicited from the American Expatriates Facebook group that has approximately 7000 members; and
B. There are only 504 contributions.
Some “US persons abroad” file US taxes and some do not. Most “US persons abroad” worry about this as a general problem. If “US Persons abroad” wonder why they have a problem, they need only look in the mirror.
There are my words. Here are Jenny’s words …
Jenny’s general message to supporters …
Update on FATCA & HMRC: breaching my human rights to data protection and privacy
Dear generous supporters,
Thank you so much for the pledges made within the past week. The campaign now has 504 pledges totalling £84,773. As I said in my previous message, £81,853 of this has long since been spent, and we have accumulated only a few thousand pounds out of the £75,000 that is needed to launch a Judicial Review against the ICO’s decision of 29 May 2020.
We have only five days left in which to secure the remaining £71,227 to appeal the ICO’s decision.
The fact that throughout the 10-month life of this campaign and compilation of a huge corpus of research and correspondence by my incredible legal team, which has been published online, it has attracted only 504 pledges speaks volumes about the level of interest in this claim. Last week we had a very kind anonymous donor offer to pledge an extra £10 for each contribution made over a 48-hour period, and this resulted in only 27 pledges (£270 was pledged by the donor as agreed).
In light of this, it is very difficult to see how the campaign will be able to achieve the hundreds more pledges needed within the next five days, unless there is a miracle.
The strength of our arguments and evidence going into Court to appeal the ICO’s decision is not in question. But without funds, we cannot pay the barristers, and we cannot launch the appeal. Being unable to bring the ICO’s ineptitude before the English courts is a dreadful outcome. It means that despite all of this hard work, the government will continue to trample on our fundamental rights, and ordinary people and their families will continue to be harmed by FATCA’s disproportionality.
I am proud of what we have achieved and that this campaign has lasted for 10 months and counting. It would never have gotten this far without your commitment to justice.
Jenny writes on Facebook …
To the thousands of people here who have not bothered to pledge so much as one pound at any time during the 10 months that this campaign has been live, do you realise what it looks like when people outside our community, including officials from data protection authorities, see that this campaign has only a few hundred supporters? Why won’t you contribute to solving the problems that have plagued us and our families for the better part of a decade? Do you know or care that you are providing evidence that there is very little interest in fixing these problems? Why are you in this group if you do not care about the priorities that are spelled out very clearly at the top of this page? https://www.crowdjustice.com/case/fatcahmrcprivacybreach/
In conclusion – a special message for Canadians …
To support Jenny’s UK Judicial Review Application is to support Canada’s @ADCSovereignty lawsuit
Section 8 of Canada's Charter Of Rights says: "8. Everyone has the right to be secure against unreasonable search or seizure." We know #FATCA is a search. Is that search unreasonable? @ADCSovereignty says yes. What might Canada's Dept of Justice think? https://t.co/w51LHCDj8l
— U.S. Citizen Abroad (@USCitizenAbroad) July 13, 2020
Of course you should support both. But, (I will write a separate post on this) it seems to me that:
A UK ruling that the FATCA IGAs conflict with Europe’s GDPR rules, would be highly relevant in establishing that the FATCA IGA violates S. 8 of the Canadian Charter of Rights (a ground that I understand is part of the ADCS appeal).
Sadly, I see a vicious spiral occurring, even affecting myself. The lack of response to these fundraising efforts encourages others not to. In fact, in my experience it’s those who are most knowledgeable about the issues who are the least likely to contribute. When I have privately reached out to various US-tainted individuals to encourage their participation in the lawsuits and petition drives, it’s those “experts” who almost always reply with excuses that the lawsuits either “don’t go far enough” or “goes too far” or “doesn’t address CBT” or are somehow imperfect in some trivial wording, offering them a rationale for not contributing or signing.
My husband and I have contributed to the ADCS lawsuit three times, and again three times to Jenny’s case, despite the fact that neither case will have any direct consequence on us, as we live far from both Canada and the UK. What we hope to achieve is the wider impact of one or both of these cases knocking out one of the legs supporting this noxious law, leading to it eventual collapse. I also thought that our contributions, publicly announced on various forums, would encourage others by demonstrating that even people like us, not directly affected, are gung-ho in support.
Yet, the utter timidity and apathy and Henny Penny’s barnyard neighbours’ attitude of “let others bake the bread but I will gladly taste it” by all those US persons who loudly pontificate, moan and wail here at IBS, but mostly on the various Facebook groups, unwilling to even put their name on a petition, much less shell out the cost of an overpriced Starbucks coffee in support of legitimate lawsuits, is so disheartening, that I too am rapidly losing steam. I ask myself, “Why do I bother?” I have the ultimate excuse: as stated above, neither lawsuit has any bearing on my situation.
I confess: I have not contributed to this newest round of funding for the ADCS suit and I am questioning whether I will. I am coming very, very close to following in those other barnyard animals’ cloven footsteps and retreating into my own shell, waiting for the day approximately four years from now when I will be able to renounce, and then distancing myself forever from everything and anything which has “US” in the title.
It’s been five years since my OMG moment. I’ve written squillions of letters, submitted to every Congressional fact-finding exercise, taken part in and publicized every petition, personally harangued countless other expats, contributed to every fundraiser, helped in other ways behind the scenes that some people here know about. But I am micrometres away from saying “I f***ing give up. I f***ing give up. I f***ing give up.” Does anyone blame me? And if I feel this way, is there any hope of rallying to the causes those who think whining on Facebook is enough?
Yes, a miracle is needed.
While one would think that those in a US expat group would display greater interest, I have garnered absolutely zero interest in FATCA/FBAR/CBT among the USCs here in Japan. They simply do not believe these problems exist and want nothing to do with a ‘far right wing nut spouting conspiracy theories’ trying to inform them of them. I have 4 of the five copies I made of my FATCA letter from a regional bank left in my briefcase. I made the five copies three years ago to give out to interested people. Only one person, a Japanese national who lived most of their life in the US, has accepted the offer to take a copy. No one will even read it.
Those are the ones I have contact with. I have stated again and again here that no one knows of these issues. Were it not for a since removed statement on the passport renewal application causing me to dig into it, I would to this day know nothing of this myself. Nobody knows.
You are a great warrior. You will not give up. You have contributed in many different and important ways.
And I wager that you will continue to contribute in many important ways.
The problem is that the ones who do know are being very unhelpful.
It certainly is A problem. But even if all 7000 people in the facebook group participated, that is what percent of the estimated 9 million US expats? Statistically, nobody knows. The rare few who do, don’t care.
However, we are not responsible for their actions or inaction. We are only responsible for what we do and don’t do.
@USCitizenAbroad: How I wish these comments were editable. What I left out of my first comment is this:
After five years of being, as you put it, a warrior, here is what I have witnessed:
More money needed
Lots more more money needed, no one giving
Lots more money needed, no one giving
US Senate hearings:
US House Committee Hearings:
Republican promises in 2016 platform:
Holding bill, Rand Paul etc. lawsuit:
Do I detect a pattern? I don’t even see things budging in the right direction. The upcoming US election offers the most hopelessness in years, a choice between perfidious Republican Trump who gives not a sh*t, and Biden, who is most likely to continue Obama’s “great work” in demonizing and squeezing US persons abroad, while our rare advocates in Congress are all gone. But the most hopeless thing of all is the subject of this post: the seemingly incurable, stubborn apathy by most expatriates. It’s worth fighting against insurmountable odds if, along the way, you can build up support; in unity is strength. Look what’s happening right now in Hong Kong. But we have failed in that effort. Maybe new tactics are needed. The current ones at least appear to be heading nowhere.
I’m sorry to spew negativity, but I’m tired of being a warrior. I didn’t write these posts to bring attention to myself or to discourage anyone, but to describe my own trepidations as an example of what this effort is up against.
Take the fight to the US embassies and consulates. Revolt or continue being a slave!
This sort of exhausted despair is *exactly* what The Bad Guys count on.
The solution is in all of your hands. Contribute today. To both. And then do it again, and again and again.
The money you spend will make you feel better, not worse. And make our world a better place. Just do it.
Thank you @USCitizenAbroad. Sadly this post is 100% accurate.
There is a strong, devoted but very small core group of overseas American and accidental American activists who dedicate their time and resources to fixing the injustices that have harmed us all. By contributing to the UK legal challenge, they have supported the compilation of an incredible volume of research and correspondence detailing FATCA’s multifarious violations of our fundamental rights and evidence pointing to a cover-up at the highest levels of government: https://www.mishcon.com/news/correspondence
The rest appear to be happy to watch and wait at the window. They either do not know or do not care that their behaviour materially damages our efforts and the public perception of our fight for justice. For those who do not know, I hope your post is a wake-up call. For those who do not care, I wish that they would do us all a valued service and leave the groups.
Another factor is the massive loss of jobs or reductions in incomes due to the shutdowns. My income is just over half of what it was a year ago. Many have loss even more.
Here are the four combinations – it’s not either or:
1. Do Know and Do Care – Some support these causes
2. Do Know and Don’t Care – But, boy those groups can be great sources of advice, love the benefits won’t help
3. Don’t Know and Care – problem is to education and then see where it goes
4. Don’t Know and Don’t care – hard to imagine Emigrants and Accidentals could be here
They won’t … As Barbara said:
@Jenny, here is what shocked me at the AE Facebook group this week …
You have a post (July 9) trying to engage the group in discussion about he necessity of funding your lawsuit (14 comments). At approximately the same time (July 10) a second post goes up by somebody complaining that they can’t get a passport (75 comments). The point is that are there to benefit from the resources of the group and not contribute. It’s pretty clear where people will put their energy.
Not to mention that friendly traffic and discussion on this very website has been actively discouraged. I come less often, I give less too.
That said I’m off to donate to Jenny’s effort!
“ The point is that are there to benefit from the resources of the group and not contribute”
A fact of life that naval engineers sum with “80% of shipboard work is accomplished by 20% of the crew.”. I have found this to be true within any group.
@King of the Road @Fred(B) – Thank you!!
@JapanT – true, but this campaign started in September, well before Covid; and people are free to pledge any amount they’d like. Every pledge counts. The whole point of crowdfunding is that many hands make light work.
@USCitizenAbroad – sadly you are right once again. There is a large number of selfish, short-sighted people who don’t give a monkey’s about anybody else or about the bigger picture. It’s amazing to me that after all they have experienced, they can’t be bothered to donate even the price of a coffee toward solving the problem, to help make sure that others in the future do not have to suffer through this.
Filippo and I did a podcast today with the magnificent John Richardson! Thank you John!
Filippo gives an in-depth explanation of the legal challenge and the principles at stake.
I admit to holding back on contributions. I was set to send something in March and then I watched in dismay as my small town was shut down and I got all empathetic and made a large contribution to our local food bank while also supporting our small businesses trying to struggle on under severe restrictions. However, on Friday I got an unexpected cheque for who knows what from the Canadian government (no explanation) so I’ll divvy it up between Jenny’s fundraiser and ADCS. Also, I’ll keep watching the ADCS amount needed and when it reaches a number I have in mind (no I’m not telling what it is but it isn’t unreasonable) I’ll pitch in again. Maybe I’ll get another one of those mystery cheques … hope so.
Thank you @EmBee!!
MB All seniors in Canada received a one time Covid payment. Many didn’t need it so a charitable donation is in order. The best part is the payment is tax free and a donation gets a tax credit. To top it off, my son in Canada got $1700 from Donald Trump. He wanted to send it back but I told him to give it to a deserving US charity.