From Canada:
Just-obtained Directive from the Federal Court:
“Written directions received from the Court: The Honourable Madam Justice Mactavish dated 19-JUL-2019 directing that “The parties are advised as follows: 1. barring any currently unknown contingencies, the Court’s decision will be issued Monday, July 22, 2019, at approximately 2:00 pm EST…”
From France via Bloomberg:
In a previous post I mentioned Monte Silver’s lawsuit against the US IRS and Treasury in United States DC District Court.
Mr. Silver’s lawsuit is a “technical-procedural challenge” against the U.S. Transition Tax (He discusses lawsuit on his FB site):
From Mr. Silver’s lawsuit:
—- I believe that the ongoing lawsuits (or just successfully completed — the Eshel litigation below) worldwide involving FATCA or aspects related to U.S. citizenship-based taxation are the following:
— Our Alliance for the Defence of Canadian Sovereignty (ADCS-ADSC) Federal Court Canadian lawsuit targeting the Canadian FATCA IGA legislation as violating privacy and equality Charter rights of Canadians. The lawsuit began in 2014. Canadian Federal Court trial with Gwen and Kazia as Plaintiffs already held last week of January, 2019. See key court submission link. Federal Court decision by July 31, 2019?
— Monte Silver’s (plaintiff) U.S. lawsuit focused on a procedural challenge against U.S. transition tax. Here is the lawsuit. Ongoing discussion on Mr. Silver’s American small businesses for tax fairness FB site.
— In ten year old litigation in the United States (Ory and Linda Eshel v. Commissioner of Internal Revenue in U.S. Tax Court) the “Internal Revenue Service said in court filings that it should have allowed U.S. taxpayers resident in France to deduct so-called Generalized Social Contribution taxes, a levy imposed on income in France…The case grew out of an audit of the 2008 and 2009 tax returns of the Eshels, U.S. citizens who reside in France”. See Bloomberg and CBANQUE and the Local.
See part of the reason why the Eshel lawsuit took so long in a January 23, 2018 DC Court ruling. From American Expat Financial News Journal: “Horwich, the attorney who represented the Eshels, said there was scope for other France-resident U.S. taxpayers who, like the Eshels, had also followed the erroneous IRS guidance and failed to claim a credit for CSG and CRDS on their U.S. tax returns. He noted that the statute of limitations to claim CSG and CRDS as foreign tax credits “is 10 years, so we anticipate large numbers of refund claims will be filed to recover taxes that the IRS should never have collected.””
— A lawsuit in France (Fabien Lehagre, AAA, Association des Américains Accidentels) against the banks on discrimination on the basis of nationality by the banks. Pleadings not yet available.
— There is a second lawsuit in France (Fabien Lehagre, AAA, Association des Américains Accidentels) against the FATCA IGA between France and U.S. in which a motion was brought before the Conseil d’Etat for the cancellation of the decree of 25 July 2017 amending the order of 5 October 2015 creating by the General Directorate of Public Finances an automatic processing of automatic exchange of information (EAI). The Association claims that the contested decree is unlawful in that: on the one hand, the above-mentioned agreement, of which it constitutes an implementing measure, is not reciprocally implemented by the United States; on the other hand, the massive nature of the storage and transmission of tax data to the American tax authorities, which it authorises, ignores the right to privacy and the protection of personal data. Pleadings not yet available.
—- What other lawsuits are out there? If you are aware of others, or know that the status has evolved on the lawsuits (e.g., interim court decision), please comment on Brock with an update. Thanks.
The report was obtained through an American Expatriates FB post of Fabien Lehagre, who is at the Association des Américains Accidentels.
Google translate seems to do a fairly decent job in translation of the report to English.
Your comments on the report?
A few excerpts:
“Certain guarantees must be provided by the French public authorities. The priority is to force the banks to stop discriminating and to respect more the privacy of their customers, so as not to be more diligent than FATCA demands.”
“If no progress is made, denunciation of the FATCA agreement should be considered as a perfectly feasible option… On all these issues, a common approach must be sought and promoted at the European Union level.”
“…reduce the administrative costs of renouncing US citizenship by returning to their previous amount of $ 400 and exempt the most modest individuals from their payment…revise upwards the thresholds in the application of expatriation tax and for the departure tax system”
“The situation of “accidental Americans” is part of a larger problem: the extraterritoriality of certain standards adopted by the United States. Errors have been made: it is now up to Parliament to be more vigilant in considering international agreements, such as IGAs.”
“We may have gone too fast on the FATCA law, whose purpose is in itself laudable and positive, since it is the fight against tax evasion and tax evasion. It is therefore normal that France has seen an interest in a reciprocal exchange of data for its own nationals. The agreement, however, did not report more cases of fraud and tax exile to the French tax authorities, unlike the Americans, with collateral damage extremely damaging to “accidental Americans”.”
“In the eyes of the rapporteurs, the number [of “accidental Americans”] does not matter. In fact, all the elements gathered at the end of their mission – including 156 concrete and documented testimonies ( 9 )- characterize a reality: that of practices and obligations likely to infringe individual liberties, and this, on the basis of an agreement whose current execution calls into question the sovereignty and interests of France.”
Here is some very recent activity from some members of the Government of three countries, France, Netherlands, and Canada — all making an attempt to protect their citizens from U.S. FATCA/citizen based taxation control. Compare the words used by the French/Dutch officials to those of the Canadian Finance Minister. See links for details:
FRANCE:
From Bloomberg (May 15, 2019):
“France should renegotiate its FATCA tax treaty with the U.S. and consider unilaterally pulling out if it can’t win concessions to protect dual nationals, a French parliamentary report said…which was co-written by a deputy from President Emmanuel Macron’s party and one from the center-right opposition…”
NETHERLANDS:
From DutchNews.nl (May 16, 2019):
The Dutch Tax minister Menno Snel says: “This week I spoke to a number of Dutch people who experience problems because of the American FATCA regulations…They are confronted with high costs and red tape, while they did not even realise they are liable for tax in the US…I am going to do my best to try to find a solution for these people while I am in Washington…”
Some comments on the Netherlands report on the American Expatriates FB site:
“Who knew the French and Dutch were so awesome!” “I’d love to say this gives me hope for Germany, but nope, German politicians are well aware of who their financial master is and are quite eager to engage in kowtowing.” “There are more Americans in Canada [what the writer might have meant to say instead: “Canadian citizens deemed by the United States to be U.S. citizens — being “deemed” by a foreign country does not necessarily make it so”] than anywhere else, and little pushback in general to FATCA, probably because bank accounts aren’t being closed. What pushback there is through the courts which the government is fighting us over.”
CANADA:
From American Expatriates FB (May 21, 2019 letter from Finance Minister):
Canada is a proud supporter of FATCA, spending lots of money to defend itself in Plaintiff Gwen and Kazia’s kill FATCA IGA lawsuit now in Federal Court; however, in a May 21, 2019 letter to a Canadian citizen/resident, Finance Minister Bill Morneau explained his (modest) efforts in trying to reduce the impact of the horrific U.S. “transition tax” on affected Canadian citizens. Some excerpts:
“Dear Ms. XXX:
Thank you for your further correspondence … expressing your concerns regarding the transition tax on foreign earnings introduced by the U.S. and the impact of this tax. I want you to know I understand your frustrations. This is an issue we have heard about… The tax can put significant pressure on your financial situation.
“…Canadian officials have discussed this issue with U.S. officials on several occasions … Some actions have been taken… extending the deadline for people to elect to pay … in installments, allowing an additional year to pay….
…Our Government has taken steps … to make life in Canada more affordable — starting with a tax cut for the middle class… investments in families, seniors, [etc. etc.]
… Bill Morneau”
[Finance Minister of Canada]
Some comments on the Morneau letter on the AE FB site:
“On the upside, you got an actual response. On the downside, it’s a rather poor consolation to hear that one of the “actions taken” is an extended deadline for payment, installments, and an additional year. Big deal!” “Only politicians can spew so many words without actually saying anything”
[The link to the Moscovici letter can be found at American Expatriates FB site and on a tweet posted by Sophie in’t Veld. There is also a response to the Moscovici letter from Fabien Lehage.]
There are efforts targeting FATCA at the European Union (EU) level. The link above shows a May 2, 2019 response from Pierre Moscovici (EU Commissioner of Economic and Financial Affairs, Taxation and Customs) to a letter complaining about FATCA from Sophie in’t Veld, an EU Member of Parliament.
In her April 5, 2019 letter Sophie says: “…Why has the Commission decided not to take an initiative and take this responsibility after ongoing problems that the extraterritorial application of FATCA pose to EU citizens?… the association des Americains Accidental brought a legal action before the Conseil d’Etat to contest the intergovernmental agreement between France and the US…it becomes clear that in the Netherlands and France, in the European banking sector and the European Parliament, the problems that Accidental Americans are facing because of FATCA are being taken seriously. It is high time that also the [EU] Commission, especially in its role as guardian of the Treaties, starts taking these problems of EU citizens seriously, and stops hiding behind excuses that it has given in the last year… With European elections in sight…”
Here are some excerpts from the letter of EU Commissioner Moscovici, responding to Sophie in’t Veld:
— “You raise a number of points on the topic of “Accidental Americans” … Nationality ties, even when acquired by “accident”, come together with the existence of reciprocal and duties, and this is at the centre of the issues you raise vis a vis the United States…”
[No, don’t agree — for example, the plaintiffs in our Canadian FATCA lawsuit dispute this as U.S. citizenship was attempted by a foreign country (US) to be imposed on these Canadians without their consent and in the absence of any meaningful relationship with the foreign country. As such, there is no legitimate or rational argument justifying this unwanted and unaccepted “citizenship” or any “duty” associated with this bogus “citizenship”. Although born in the U.S. they are not “accidental” or any kind of “American”.]
— “As regard access to banking facilities by dual EU/US citizens, I understand from the response given at the PETI meeting that only one national authority has signalled having received, albeit very few, relevant complaints, and that the analysis of the national implementation of the Payment Accounts Directive did not find any evidence of discrimination against “accidental Americans…”
— “…no figures [on the number of accidental Americans] have been provided, making it difficult to establish how many citizens are in this position…”
— “On the topic of a possible mandate to negotiate an EU FATCA agreement with the US, I remain open to any support for this from the Council. However, I do not think it useful to formally request one as to date there is no sign that Member States would support such an action…In any event, given the global approach to tax transparency, and future (re)negotiated agreement would be likely to maintain the requirement for individuals who are taxable in the U.S., including joint EU/US citizens, to provide their US TIN when they open a bank account in the EU…”
— “With regard to the recent developments in France and Netherlands, I look forward to learning how these actions develop…”
— “In the case of FATCA, like you, I very much regret that the amount of information that flows from the US to the EU Member States under their bilateral agreements is less that flows from the US to the EU. But, this does not mean that the information should not be provided to the US…”
— “To conclude, I believe that there are two main issues which are often overlooked when discussing this subject. The first concerns sovereignty. All states have the sovereign right to determine who they tax individuals and, in the case of the US, the international community has accepted double Conventions that the US reserves the right to tax its citizens, rather than only its residents. The second concerns the recent worldwide movement towards tax transparency in an effort to ensure that tax avoidance and evasion can be reduced and that every taxable person pays their fair share of taxation…”
[The Government of Canada lawyers in our FATCA lawsuit in Federal Court made in court the very same points as Moscovici in the above paragraph. Will Justice MacTavish agree with Moscovici or with plaintiffs Gwen and Kazia who insist that the Canada’s FATCA “agreement” with US violates their Charter rights (sections 8 and 15) and Canada’s sovereignty and that the FATCA IGA legislation goes too far?]
Ms. in’t Veld responds to the Moscovici letter in an article by Helen Burghof:
— “…I was not surprised by the commission’s refusal to take action – to my regret, I note that is consistent with their attitude so far – but I was surprised by the denigrating tone of the letter…The real problem is of course the blunt refusal by member state governments, with the exception of the Netherlands and France, to stand up for the rights of their citizens…File a complaint, with the data protection authorities, and/or the banking oversight bodies; join one of the associations that has been formed, inform your MP and/or MEP, use social media and traditional media, to make the message heard.”
EmBee said (on Tricia’s post):
“Seems as good a place as any to put this …
Right now I’m feeling the need for some relief from the Brock bickering because it is making me weary and sad.
I am oldstock Brock and will continue to watch for updates on the progress of the Canadian trial (my heart is committed to that challenge) but I’ll try to leave the commenting to the newstock Brockers.
I sometimes wonder if there is some Tavistock-like undermining or manipulation going on here because the atmosphere has changed.
If the site managers ever feel they’ve had enough and elect to shut down Brock I would completely understand. However I want them to know how much I appreciate all the work they have done behind the scenes since all the way back to 2011. My how time flies and ever more quickly as you get older (read an article recently attempting to explain why this is so).
Anyway
I wish everyone well and thank everyone who has worked or is still working to make things right for those who are threatened by the US tax regime. I’m particularly mindful of those who passed away during the struggle.
The cause is just. It always will be.”
I am posting below (with permission) details of the experience of a young person of legal age who attempted to renounce United States citizenship at a US Consulate in Canada.
Readers have weighed in whether the behaviour of the Consular official was appropriate or not.
The FIRST part of this post is the detailed December 19, 2019 personal account of the person, followed by an earlier April 10 2019 second hand summary of the experience.
DECEMBER 19, 2019 DETAILED FIRST-HAND ACCOUNT OF EXPERIENCE OF YOUNG PERSON ATTEMPTING TO RENOUNCE AT US CONSULATE IN CANADA:
“In July 2018, I sent an email request for a renunciation appointment to be scheduled for after my 18th birthday, since I was not yet 18 years old at the time. I needed to wait until my birthday because according to U.S. law, they can deny an application from minors, but they cannot deny an application from a legal adult unless they suspect that said adult is being coerced. In January 2019 I finally received a reply, scheduling an appointment at the Halifax consulate for March 2019.
On the day of the appointment, I arrived a few minutes early and had to wait for the consulate to open (I think I was the first item on their schedule for that day). The building where the consulate is located is very nice and modern, full of business suites for law firms and the like. The consulate occupies its own floor accessible only by elevator, and when I got there, I had to buzz in using what looked like a doorbell camera from an apartment building. Once inside the consulate proper, there was only a single guard, who was quite friendly until I informed him that I was carrying an Epi-Pen because of my severe food allergy. He seemed worried about this as if it was some sort of threat and confiscated it, saying that I could have it back when I left. I asked him what would happen if I needed it, and he obfuscated for a few seconds before telling me to continue into the waiting area, never answering my question. The consulate itself is very small – a single room with about 20 chairs in the middle, three bank teller-style windows in one wall, and the guard’s desk and metal detector by the entrance. At this point the guard and I were the only people in the room.
I waited for probably 15 minutes before a clerk appeared in one of the windows and called my name. She took my documentation and I sat back down and waited for probably another 10 minutes before my name was called again. I went up to the next window and paid the $2,350 USD in cash, which the clerk seemed irritated by. She gave me a receipt and told me to wait again. While I was waiting a family came into the consulate for what I think was U.S. travel visas, based on snippets of conversation I accidentally overheard. After maybe 20 more minutes of waiting I was called to the third window, which had a chair set out in front. I sat down, and the woman behind the window introduced herself as the vice-consul. We had to speak through microphones that didn’t work very well and kept cutting out, and there was a slot at the bottom of the window for passing documents through.
The vice-consul started by asking me to confirm my identity and my intent to renounce my citizenship. I raised my right hand and swore to tell the truth, as directed. The vice-consul then began going through my documents and asked me about the circumstances of my birth. From this point forward I remember clearly what was said but I cannot recall exactly the order of events because the questioning became very intense and intimidating, and I went into autopilot mode. The consulate probably knows exactly how the conversation played out, however, due to the surveillance camera conveniently located right above the interview window.
I do remember that it began with her incredulity that I was trying to renounce at only 18 years old, because according to her, I didn’t have enough life experience to do so. She asked me why I chose to renounce at this time, and I said it was because I legally could and wanted to, and she seemed irritated by my lack of elaboration. Since I was still in high school, had not travelled extensively outside of North America, had not been to the U.S. much in the past few years, and had yet to vote in any election, she claimed that I clearly didn’t know enough about the world to make such a monumental decision. I told her that I planned to vote and travel later and just had not been able to do so yet because I was not old enough, but she wasn’t satisfied. She asked me to list everywhere I had ever lived, and what jobs my parents held in each location. When I told her that some of my parents’ jobs were with the U.S. government, she seemed very suspicious about it. She also made some strange comments about the fact that we moved quite often during my childhood, as if she suspected that we were involved in something shady.
Now, the law clearly states that I don’t have to give a reason, but she told me in no uncertain terms that a person as young as me must prove to her that I am of sound enough mind and have a good enough reason to renounce. This is blatantly untrue, and I knew that during the interview, but I felt very intimidated by the vice-consul and I had to appease her in order to get through the interview and not waste the massive amount of money I had just paid. She asked me about my career aspirations, and when I told her that I might go into medicine, she said that I should keep an open mind about medical school and residency in the States. When I told her I would rather stay in Canada for my education, she seemed bewildered and asked me if I had really thought about it, because if I had thought about it properly, I must be at least considering going to the U.S. I said I had considered it plenty, and I preferred Canada. She kept pressing me about it, asking me why I didn’t go to university in the States, or take a gap year and travel there. I said I didn’t want to. Every time I said I didn’t want to go to the U.S. her expression became more and more confused. She then said that I should keep my citizenship because if I ever decide to travel internationally, American diplomats and military can provide more protection if I get kidnapped abroad. She said that a maple leaf on my backpack can only get me so far, that nothing can protect me as well as a U.S. passport, and because of that I need to keep my citizenship for my own safety while travelling. I didn’t know quite how to respond to that, so I just said that I had made my decision and hoped she’d back off. She didn’t.
Sometime after that she began trying to construct a case that my parents were coercing me into renouncing. She started asking all sorts of leading questions – were my parents still citizens, did we discuss renunciation at home, did I go with them to their renunciation appointments, how long I had been thinking about renouncing, did they suggest that I do it, and did they drive me to my appointment that day. I answered that I did hear about it from them but that the decision to renounce was my own; and furthermore, since I can’t drive and am from out of town, I couldn’t have gotten there without being driven by my parents. She seemed very confused by my answers and muttered under her breath several times that she didn’t understand my reasoning.
The vice-consul also asked me about my Canadian citizenship. I naturalized when I was a kid, having moved to Canada at a young age. She asked me why I didn’t want to stay as a dual citizen, and I told her it was because I felt Canadian, not American, and I didn’t want to keep a nationality I didn’t identify with. She didn’t take that as an answer, so I said I thought it would be easier to just have one citizenship. She said that having American citizenship had no downsides, and used herself as an example – she explained that she had a very high security clearance and an important job in the U.S. foreign service and her dual Canadian/American citizenship didn’t cause any problems for her. I thought it was rather inappropriate for her to be talking about details of her job, especially her security clearance, in a renunciation interview, but I didn’t say anything about it. She clearly expected me to acquiesce and admit that she was right, but I just said that I wanted to get rid of my American citizenship and that I was determined to go through with it. She was visibly frustrated by my response, and said again that she didn’t understand my reasoning.
She also had a very low opinion of young people such as myself, which came out on multiple occasions during the interview. She made several comments about young people being impatient, not understanding the world, making uninformed decisions, et cetera. She said at one point that I was being naive, that young people are always so blasé about serious matters, and that I would surely regret this decision once I was older and wiser. I felt insulted by the constant references to my youth, and during the entire interview I felt I was being treated like a child.The interview went on for about half an hour of hard grilling before the vice-consul suddenly gave up. I think she was trying to wear me down and intimidate me into cancelling my renunciation, and after I refused to do so, she decided to drop it. After she asked me her last question, she audibly sighed and pushed the papers I would need to sign through the slot in the window. She asked me to read several documents and summarize them for her. I did so, signed both copies, and gave them back in exchange for the the document containing the oath of renunciation. I had expected to raise my hand, swear, or do something officially binding while reciting the oath, but she just asked me to read the oath out loud, which I did. I signed both copies of the oath and gave them back. Meanwhile, it was very clear that the family in the waiting area had heard everything that was said between the vice-consul and myself, and it was unexpectedly very embarrassing to have to defend my decision to renounce my citizenship from a high-ranking diplomat in front of people who were actively trying to get into the U.S.
The vice-consul went on to explain that Washington would respond in a few months with either a CLN or a letter of denial, and that I would have to be patient. She added another rude comment under her breath about people my age being impatient. She also said that young people who decided to do this often come to regret their decision after a couple months, and if I regret mine before receiving my CLN, I could write the consulate and try to get it stopped. She also gave me a temporary CLN to use if I had to travel abroad before the legitimate one arrived. She returned my documents to me and very brusquely asked me to leave. I reclaimed my Epi-Pen from the guard and left the consulate without incident. The appointment took around an hour and 15 minutes in total, about half of which constituted the interview. After I left, I was externally calm but internally very shaken, since I felt that my rights had been violated. The vice-consul abused her position of authority over me during the interview in order to intimidate me into keeping my citizenship, and I was very afraid that my application would be rejected. It felt like I was trying to a leave a cult.
My CLN arrived in April 2019, just over a month after my renunciation appointment. I was surprised that it arrived so quickly, but I was also very relieved that I had been approved after all. I was glad to have it over and done with. Forever.”
APRIL 10, 2019 SECOND-HAND SUMMARY ACCOUNT OF EXPERIENCE OF YOUNG PERSON ATTEMPTING TO RENOUNCE AT US CONSULATE IN CANADA:
“Anyone preparing to renounce their US citizenship needs to be aware of a situation affecting a young adult renunciant of which I have recently become aware.
This person attempted to renounce at a US Consulate in Canada and received an unpleasant surprise. Instead of the standard brief interview process, which typically involves being made aware of the consequences of renunciation and determination of voluntariness, this person was subjected an almost 30-minute grilling by the Vice Consul about how foolish their intention to renounce was, especially at their young age, accompanied by proselytizing about the virtues of American citizenship.
It was explicitly stated by this official that they had to know, in detail, why this person was renouncing and that they had to be fully convinced of the validity of their motives before the renunciation could be forwarded to Washington for approval, as if they were a minor under 18 instead of an adult.
The Vice Consul badgered the young person, asking again and again for an explanation, even though they had clearly said that they did not wish to make a statement about why they were renouncing, both in the paperwork and in person at the interview.
In particular, the Vice Consul insinuated that the young person was most likely being coerced by their parents because no young adult would have the life experience or understanding to take such a monumental action.
Also, they spent a good portion of this “lecture” extolling the virtues of maintaining US citizenship and even derided the young person for not considering attending university in the US. The Vice Consul called them “naive” and “blasé” and said that they were acting “rashly”, even though the person in question is very mature, intelligent, well-spoken, and firmly resolute in this decision and in their motivations.
The Vice Consul went on to say that it was extremely rare that an 18 year-old person would take this action and that “it didn’t make any sense.”
The Vice Consul also said there was no reason to renounce because there were no negative consequences to holding both citizenships.
She then implied that Canadian citizenship wasn’t as valuable because Canada couldn’t/wouldn’t help out like America could/would while travelling abroad (e.g., consular assistance, military rescue, etc.), even saying that the Canadian flag on the backpack would only get you so far but that travelling under the US passport gave you the most safety of all.
While the Vice Consul was technically polite and did not raise her voice, it appeared to the young renunciant that the official’s intent was to manipulate. In their opinion, the Vice Consul’s actions constituted a clear attempt to intimidate and to spread pro-American propaganda and to create doubt in their mind about whether they should renounce or whether they even had the right to renounce at this age (even though they are an adult). Accordingly, they are now afraid that the State Department will reject the renunciation and keep the USD$2350 due to the Vice Consul’s willingness to bully them in this way.
I don’t know if this is a new policy being implemented by the State Department or if it is a random occurrence happening to this one person but anyone planning to renounce should be prepared for an intense grilling about motives and unprofessional conduct by consular officials, especially if they are young adults.
This young person feels strongly that their human right to expatriate without interference, as guaranteed by the Expatriation Act of 1868, the Immigration and Nationality Act, and the UN Universal Declaration of Human Rights, was clearly infringed. Be aware and be prepared.”
On February 28 2019 John Richardson published a post in TaxConnections entitled: “The USA Of The 21st Century Is Like Britain In The 19th Century”.
Yesterday (March 13), he published a NEW post entitled: “The United States Imposes A Separate And Much More Punitive Tax On U.S. Citizens Who Are Residents Of Other Countries”
You can read and contribute to the new post on this link.
THE INTENDED FOCUS OF THIS POST IS THE ALLIANCE FOR THE DEFENCE OF CANADIAN SOVEREIGNTY (ADCS) FATCA IGA LEGISLATION TRIAL IN CANADA HELD ON JANUARY 28, 2019.
The Government of Canada (who we are suing), together with some commenters on this site, strongly emphasize that Canadians should thank their lucky stars because they can easily get out of any FATCA-related “problems” (e.g., Canada won’t collect on behalf of the IRS at the present time, IRS at present time is not prosecuting all those turned over by FATCA, American interference is only hypothetical, “US citizens in Canada don’t seem to have much to fear from America or Canada, apart from the pointless automatic reporting. Canada may in fact be the last remaining country in the world where dual citizen status isn’t risky.” etc.). Why then did our Plaintiffs put themselves personally at financial risk with this lawsuit?
One reason for this trial is that Plaintiffs Gwen and Kazia want Canada’s FATCA IGA legislation, infringing on their privacy (Charter section 8) and equality (section 15) rights, declared unconstitutional by Canada’s Federal Court — and that a lawsuit is the way to achieve this specific objective.
Do privacy and equality rights matter? Should we care?
Plaintiffs also say in their court submission: “Canada effectively maintains that it enacted the Impugned Provisions under duress from a foreign state. The Court should be very slow to accept this as a justification for infringements of the Charter. Canada is expected to defend the constitutional rights and freedoms of its citizens and not bargain them away or capitulate to threats from a foreign bully state.”
Is it important that Canada be a sovereign nation and not bargain away Charter rights because of a threat from a foreign bully? Does standing up to a foreign bully matter?
The CBC tells us that information on 600,000 accounts/year has been turned over to the US IRS during the past years. Even those who do not support Plaintiffs’ lawsuit would likely admit that at least “some” of the accountholders did not give consent for the turnover — meaning that the loss of Charter rights is not hypothetical.
Gwen and Kazia believe, and shouldn’t this really be obvious to all Canadians?, that the loss of our Charter rights, the loss of Canada’s sovereignty, and the loss of dignity of a subgroup of Canadian citizens, are more than, as some commenters argue, just “a relatively abstract sort of harm”.
Canada argues no harm caused by the FATCA IGA, but does acknowledge that if Charter rights are infringed, it had plenty of justification to do so — Canada had no choice but to comply with United States FATCA demands and could not have said “no”.
The lawsuit began during the time of the Harper Conservative government. We had hoped that when the Liberals came to power, there would be no need to continue the lawsuit, because of statements made on June 25, 2015 by Justin Trudeau to ADCS (“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 [FATCA] deal reached between Canada and the U.S. is insufficient to protect Canadians.”) — but this was not to be, and the lawsuit continues even with the change in government.
When reading the diverse comments below on a variety of topics please try to consider what Plaintiffs’ Gwen and Kazia want to achieve, on behalf of all Canadians, with their lawsuit.
More discussion of the lawsuit below:
