Category Archives: Issues regarding US persons abroad

Once upon a time…

Britain was a great country. Now, Britain has adopted the “Gentiloni Doctrine“. You may recall that the doctrine includes:

1. The United States has the sovereign right to declare who its citizens are; and

2. The United States has the right to impose worldwide taxation on those citizens.

Yes, Britain was a great country that should have stood up to the United States: Love Actually Scene – Hugh grant Speech https://t.co/m5ptkqIsoE via @YouTube

— U.S. Citizen Abroad (@USCitizenAbroad) June 19, 2020

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Introduction

From @HelenBurggraf: US charges Russian bank exec over false statements in connection to failure to pay expatriation tax AND seeks his extradition from the UK to US https://t.co/qhovFj5enr

— U.S. Citizen Abroad (@USCitizenAbroad) June 14, 2020

This is Part 8 of my series on US extraditions. In Part 7 I discussed the expansion of the range of crimes for which the United States is seeking extradition. I suggested that extradition for tax and form crimes was (at the very least) possible (although I think at the present time unlikely). But “unlikely” does not mean impossible. The purpose of this post is to describe a case where the United States is seeking extradition of a former US citizen for reasons related to the expatriation process.

The previous posts in the extradition series are:

https://isaacbrocksociety.ca/2020/02/11/uk-daviddavismp-describes-us-uk-extradition-treaty-in-a-manner-that-is-reminiscent-of-fatca-igas/

https://isaacbrocksociety.ca/2020/03/26/the-extradition-series-part-1/

https://isaacbrocksociety.ca/2020/03/27/the-extradition-series-part-2-the-extradition-process-in-a-nutshell/

https://isaacbrocksociety.ca/2020/05/21/the-extradition-process-part-3-the-concept-of-dual-criminality-how-does-it-apply/

https://isaacbrocksociety.ca/2020/05/24/the-extradition-process-part-4-do-meng-wanzhous-charter-rights-conflict-with-the-us-canada-extradition-treaty/

https://isaacbrocksociety.ca/2020/05/26/the-extradition-process-part-5-as-a-matter-of-administrative-law-the-supreme-court-of-canada-seems-unlikely-to-review-extradition-orders/

https://isaacbrocksociety.ca/2020/05/28/the-extradition-process-part-6-the-justice-holmes-verdict-in-the-meng-wanzhou-case-the-usa-exports-its-law-to-canada/

https://isaacbrocksociety.ca/2020/06/13/the-extradition-process-part-7-as-goes-the-move-from-listed-offenses-to-dual-criminality-so-goes-the-possibility-of-extradition-for-new-kinds-of-offences/

Part A – The facts as alleged

Who is Mr. Tinkov?

When it rains it pours. Mr. Tinkov has also been diagnosed with leukemia https://t.co/nDRugXhaOP https://t.co/Ag5NNxKMR3

— U.S. Citizen Abroad (@USCitizenAbroad) June 14, 2020

According various sources on the internet, Oleg Tinkov is a Russian entrepreneur who naturalized as a US citizen in 1996. There is (what appears to be) a comprehensive wikipedia entry describing him.

Notably Mr. Tinkov was apparently not living in the United States but was living in London, UK. The evidence suggests that he had not lived in the United States for many years.

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Interesting Council Of Foreign Relations article on extradition and various alternatives. Note the difference between "covered offenses" and "dual criminality". https://t.co/glOxu13Fm3 pic.twitter.com/bdiVMW7BJB

— U.S. Citizen Abroad (@USCitizenAbroad) May 29, 2020

Part 6 of this series of posts discussing extradition treaties ended with

“Big picture view: Leaving aside the legal technicalities and the nattering over matters of form/substance, etc … It seems clear that from a US perspective the purpose of an extradition treaty is to export US law to other lands. Since Canada is the United States’ biggest trading partner, doesn’t it seem reasonable that Canada should be the export destination of the largest number of US laws?”

This understates the problem. Extradition treaties are being used to transport individuals to the United States, who may have never set foot in the United States and who may have violated US laws of extraterritorial application. In some cases (the UK), the individual may not have violated the law of country except the law of the United States. Countries that are “partners” to US extradition treaties, have become unpaid bounty hunters in the service of the United States.

After 911 …As per President George W. Bush in 2001:

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https://twitter.com/debthompsonphd/status/1268969766212915200

The article referenced in the above tweet is written by a professor of political science who is Canadian born, has lived in the United States for the last ten years, currently has a Green card and is returning to Canada to teach at McGill. The article is a fascinating exposition of her perception of racism in North America. We are living in very troubled times and I believe her article has an important message for all. This sentiment was captured in the following comment to the article:

This is a disturbing, uncomfortable, thoughtful and very well written article. It made me think a great deal about what the author wrote, and starting to make changes about how I deal with others. Thank you.

Professor Thompson’s article is fascinating and thought provoking on many levels.

How is the article relevant to Brock, Accidental Americans and Americans abroad?

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Manifest Destiny – 21st Century Version

It's 21st Century "Manifest Destiny". US extradition treaties export US laws and punishment to countries by treaty. Look at this beautiful woman coming to Canada via the Extradition Treaty (flanked by US prosecutors) to export US sanctions against Iran. https://t.co/ZVGmaYWDkz pic.twitter.com/P86Uc4kKcQ

— U.S. Citizen Abroad (@USCitizenAbroad) May 28, 2020

The United States exports more laws than any other country on earth (with a little help from extradition treaties)

(This post will be best understood in conjunction with Part 4 and Part 5 of this series on extradition.)

https://t.co/ie44XJafy5 pic.twitter.com/RFfgJDoECv

— U.S. Citizen Abroad (@USCitizenAbroad) May 28, 2020

The full text of the Justice Holmes decision is here. The guts of the decision, ruling that the “double criminality” requirement has been satisfied, is found in paragraph 82 which reads as follows:

[82] Ms. Meng’s approach to the double criminality analysis would seriously limit Canada’s ability to fulfill its international obligations in the extradition context for fraud and other economic crimes. The offence of fraud has a vast potential scope. It may encompass a very wide range of conduct, a large expanse of time, and acts, people, and consequences in multiple places or jurisdictions. Experience shows that many fraudsters benefit in particular from international dealings through which they can obscure their identity and the location of their fraudulent gains. For the double criminality principle to be applied in the manner Ms. Meng suggests would give fraud an artificially narrow scope in the extradition context. It would entirely eliminate, in many cases, consideration of the reason for the alleged false statements, and of how the false statements caused the victim(s) loss or risk of loss. By that approach, Wilson, described above, would, it seems, require a different result.

As one Brock comment suggests:

Imho, the decision is really political whether or not Huawei/G5 is involved. One thing is evident ,no matter who is spinning the yarn, the US started it all and Canada will feel the economic pain whatever the outcome is , either from the US or China,in this case. Always forced to side off with the US in all foreign affairs and internal, it seems more evident by the year that Canada sometime in the future will become another star on the US flag.

A thoughtful series of comments about the Justice Holmes decision begins here.

Big picture view: Leaving aside the legal technicalities and the nattering over matters of form/substance, etc …

It seems clear that from a US perspective the purpose of an extradition treaty is to export US law to other lands. Since Canada is the United States’ biggest trading partner, doesn’t it seem reasonable that Canada should be the export destination of the largest number of US laws?

It’s the 21st Century version of the doctrine of “Manifest Destiny”. Don’t give up your US citizenship just yet. You may, in the future, have (as a US citizen) a “preferred citizenship status” in Canada.

https://t.co/yM4UOzEDGu pic.twitter.com/R3lEmZgiS4

— U.S. Citizen Abroad (@USCitizenAbroad) May 27, 2020

The above tweet references an article from Helen Burggraf at American Expat Finance. The article includes:

First FATCA challenge over GDPR

As reported, a U.S. born woman who has been identified only as “Jenny”, and who has been a British citizen since 2010, launched her complaint against HMRC last year, in what was said at the time to be the first legal challenge to FATCA since the GDPR came into force in 2018.

Jenny claims that by providing her personal financial information to the U.S. tax authorities in compliance with the U.S. tax evasion law known as FATCA, HMRC is violating her data protection rights, both as a British and EU citizen.

Jenny, who lives in the north of England and who has been described as married and working with deaf students at a university, where she is a research associate, is crowd-funding her FATCA challenge on the CrowdJustice.com website, where, since last September, she has managed to raise some £80,338, from 426 pledges thus far, although she is still some way short of her target of £120,000.

FATCA was signed into law in 2010 as a revenue-providing element of a domestic jobs bill known as the HIRE Act, while at the same time being intended to discourage the use by Americans of overseas bank accounts to hide their wealth.

Known officially as the Foreign Account Tax Compliance Act, it establishes a 30% withholding tax on U.S. source income for any non-U.S. financial institutions that are found to have failed to report to the U.S. authorities the bank account details, including assets, of any of their clients who happen to be U.S. citizens or Green Card holders.

When enforced alongside the U.S. system of citizenship-based taxation, the FATCA regulations mean that an estimated 9 million U.S. citizens living outside of the U.S. are unable to avoid paying taxes to both their country of residence and the U.S., although there are some mechanisms they can use to avoid being taxed twice for the same thing on the same income.

To read the complete and comprehensive article (which includes a description of the basis for the legal challenge) click here.

The US assumes jurisdiction over banks because they use the US dollar. The US assumes jurisdiction over the poor because they use Hotmail accounts. Google "Waterloo Suresh" who was a law student extradited from Canada to the US. https://t.co/YCUfL5xqav

— U.S. Citizen Abroad (@USCitizenAbroad) May 26, 2020

On December 14, 2012 the Supreme Court of Canada, in the unanimous decision in Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609 authored by (then) Chief Justice McLachlin, confirmed the extradition of Suresh Sriskandarajah to the United States. The decision was short, to the point and expressed the court’s view that extradition decisions were within the discretion of the Minister Of Justice. The crux of the decision appears to be paragraph 33 which includes:

As explained above, the Minister’s order of surrender is a political decision that attracts a high degree of judicial deference. The Extradition Act confers broad discretion on the Minister’s decision to extradite

In other words, the presumption is that, the Supreme Court of Canada will NOT review extradition orders.

It’s as though, the US Canada Extradition Treaty means that:

1. The extradition request from the United States is mechanical (even though none of the conduct occurred within the United States); and

2. The willingness to extradite an individual from Canada to the United States is mechanical.

It appears that individuals who are the subject of an extradition request from Canada to the United States, have fewer legal protections, than do individuals charged with a crime in Canada …

It’s almost as though, the extradition process is designed to circumvent (or at least “water down”), the protections (such as they are), that individuals are afforded if their trials take place in Canada.

Interestingly (and predictably), when extradited to the United States, Mr. Sriskandarajah pleaded guilty, preferring the certainty of a two year period of incarceration, to the maximum which would be sought should he have suggested that he was innocent. The Canada US extradition treaty appears to be a way that the United States can export its version of criminal law into Canada. One wonders whether Canada should even have an extradition treaty with the United States. Conrad Black considers this in a recent article …

Conrad Black: Why should Canada extradite anyone to a prosecutocracy? https://t.co/2QVl6p1U5N via @nationalpost

— U.S. Citizen Abroad (@USCitizenAbroad) May 26, 2020

On December 14, 2012 (the day the decision was released), Mr. Sriskandarajah was completing his first semester at a Canadian law school. He is now apparently back in Canada and (having completed law school) seeking a license to practise law in Ontario.

Justice McLachlin’s decision was short and joined by the rest of the judges. Of most significance (I think is) …
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Part A – The Similarity Between The FATCA IGAs and Extradition Treaties

CBC has produced an excellent ten part podcast called “Sanctioned”. It is very well done and explores the Meng Wanzhou arrest and extradition process to the United States. As you know, at the request of the United States, Canada arrested Meng Wanzhou for extradition to the United States. The result of arresting Meng Wanzhou was that China arrested two Canadian citizens and passed a death sentence on a third. In the spirit of retaliation China has imported fewer Canadian products – resulting in economic hardship to Canada and individual Canadians. Furthermore, Meng Wanzhou’s lawyers have argued that Canada violated Meng Wanzhou’s Charter rights. The suggestion is that Canada has made the appeasement of the United States a priority over protecting Canada’s values and the rights of Canada citizens.

Shades of the FATCA IGAs. By entering into a FATCA IGA, Canada has harmed Canadian citizens for the purpose of doing the bidding of the United States. The US Canada extradition treaty has placed Canada in a similar situation. Should Canada appease the United States at the cost of damaging its own citizens? The Meng Wanzhou case has an additional dimension. Should Canada – in a global world – damage its economic relationship with China in order to appease the United States?

The FATCA IGAs and the Extradition Treaty are very similar in three key ways.

First: In both cases the United States is using an “agreement” to require Canada to send something to the United States. In the case of the Extradition Treaty, the United States is demanding a person. In the case of FATCA, the United States is demanding private information about a person. Should the FATCA IGAs be viewed as (in substance) as being an Extradition treaty for information? (In the case of information, Jenny’s FATCA UK lawsuit has demonstrated that US FATCA demands override key provisions of the GDPR.)

Second: Notice that in both the FATCA IGAs and the Extradition treaty, the United States is imposing US law on Canadian soil. (In the case of FATCA there is no reciprocity. In the case of the Extradition treaty there may or may not be reciprocity.) Specifically, the FATCA IGAs export Chapter 4 of the Internal Revenue Code into Canadian Law (Part XVIII of the Income Tax Act of Canada). In the case of the Extradition Treaty the United States is asking Canada to accept the claim that the violation of a US sanction against Iran meets the standard of “dual criminality”.

The United States is using extradition treaties to export US criminal law to other countries:

When the U.S. France extradition treaty was sent to the U.S. Senate for approval, President Clinton noted that:

The United States recognizes the extraterritorial application of many of its criminal statutes and frequently makes requests for fugitives whose criminal activity occurred in foreign countries with the intent, actual or implied, of affecting the United States.

Third: In both cases the agreements with the United States override rights afforded to individual Canadians under Canadian law. On the most basic level, the FATCA overrides statutory non-discrimination provisions found in provincial human rights codes. Parts 7 and 8 of the CBC Podcast series describe how Meng Wanzhou’s lawyers make the case that her Charter rights were violated at the outset.
Clearly, one must ask the following questions:

Should countries violate the rights of its own citizens in order to appease the United States?

Should the United States be permitted, through the use of international “agreements” to lower the level of individual rights to the level afforded to American citizens generally?

Should Canada, (as do many other countries) reserve the right to NOT extradite its own citizens?

Should the FATCA IGAs be amended so that the accounts of Canadian citizens resident in Canada are not subject to the FATCA IGAs? (Notably the Canada/US tax treaty includes a provision that provides that Canada will not help the US collect US tax debts on Canadian citizens.)

The broader context of the US extradition demand of Meng Wanzhou

It’s shocking that the United States can (1) unilaterally pull out of the Nuclear agreement with Iran then (2) impose sanctions against Iran in accordance with US law and (3) use Extradition Treaties to require treaty partner countries to seize individuals who happen to be physically present in their territory. It’s obvious that Meng Wanzhou has violated no law of Canada.

Extradition Treaties: A View From The Homeland

A short but interesting presentation conducted by Amy Jeffress (the lawyer for Anne Sacoolas) is here.

Conclusion: The United States is using international “agreements” for the purpose of “planting Old Glory” in other countries.

Part B – On To The CBC Podcast Series “Sanctioned”

An excellent ten part podcast series about the extradition odyessy of #MengWanzhou "Sanctioned: The Arrest of a Telecom Giant" https://t.co/TG8ckz6HkZ

— U.S. Citizen Abroad (@USCitizenAbroad) May 25, 2020

At the very least I suggest that you listen to Episode 8 which may be found here.

https://www.cbc.ca/listen/cbc-podcasts/365-radio-sanctioned/episode/15738680-episode-8-the-rule-of-law

Prologue:

https://twitter.com/proctor_jason/status/1263555886922022918

__________________________________________________________________________

Introduction:

In March of 2020 I began a series of posts on extradition. In the first I noted that “As The World Becomes Smaller, Extradition Becomes Bigger“. That post discussed the growing prevalence of extradition and noted the recent cases of Julian Assange (UK), Meng Wanzhou (Canada), Ruhollah Nejad (France) and Michael Lynch (UK). In each of these cases the United States is seeking the extradition of individuals to the United States. The case of Anne Sacoolas is an example of Britain seeking the extradition of a U.S. citizen from the United States to Britain. That post also included the assertion that:

The United States is using extradition treaties with other countries, to require those other countries to arrest and extradite individuals for crimes which did NOT occur in those countries or in the United States. To put it another way, the United States apparently sees extradition treaties as way to facilitate it’s role as the world’s “Lone Ranger” – scouring the world for people it doesn’t like – with every treaty parter playing the role of “Tonto”. (Apparently, “Jay Silverheels, who played The Lone Ranger’s sidekick Tonto in the TV series and movies, was born to a Mohawk chief on the Six Nations Reservation in Brantford, Ontario …”. This would make Canada a natural “Tonto” in the use of extradition treaties to police the world.)

When the U.S. France extradition treaty was sent to the U.S. Senate for approval, President Clinton noted that:

The United States recognizes the extraterritorial application of many of its criminal statutes and frequently makes requests for fugitives whose criminal activity occurred in foreign countries with the intent, actual or implied, of affecting the United States.

In Part 2 of my extradition series, I described the Canadian extradition tools and process.

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The idea that a Canadian MP could be subject to #FBAR and other IRS penalties is ridiculous: "Andrew Scheer will not follow through with plans to renounce U.S. citizenship" /via @globeandmail https://t.co/BZ3tO3kIFC

— U.S. Citizen Abroad (@USCitizenAbroad) May 18, 2020

The Globe and Mail was the first to break the story about Andrew Scheer’s dual Canada US citizenship. Mr. Scheer’s US citizenship generated a number of comments on Brock.

The above tweet references the follow-up article in today’s Globe and Mail. I believe it’s unlikely that Mr. Scheer ever started the process to relinquish US citizenship. But, who really knows?

A couple of thoughts:

1. The comments on the Globe article are accelerating. Interestingly not a single comment so far has addressed the issue of US citizens being subject to IRS jurisdiction. Is it tolerable for a Canadian MP (including a Party Leader) to be a “US citizen”? The problem is that dual citizenship in general is not the same as dual citizenship when one of the citizenships is US. The difference is that US citizens are (as we all know) members of the World’s Premier “Tax, Form and Penalty Club”. Should Canadians tolerate a situation where their Prime Minister (or any MP) is subject to IRS jurisdiction?

2. Is it possible that Mr. Scheer implied/recognized that US citizenship is different from other citizenships. An August 13, 2005 blog post from Mr.Scheer included:

Quick Questions

I have a few quick questions for anyone who thinks that Michaelle Jean is a good choice to be our next GG.

1) What are her qualifications? What experience does she have that would assist her to carry out her duties as our head of state, including the potential to be a referee in a minority government situation?

2) Does it bother you that she is a dual citizen (France and Canada)? Would it bother you if instead of French citizenship, she held U.S. citizenship?

3) It is being reported that her husband is quite chummy with some FLQers belonging to the same group that killed Pierre Laporte. If her husband was quite friendly with Al-Queda terrorists, would that be alright?

Is Mr. Scheer recognizing that not all citizenships are the same? For the purposes of being a Party Leader (and potential Prime Minister), is Mr. Scheer implying that there might be a difference between American citizenship and French citizenship?

He may or not be implying that there is a difference.

The reality is that no country, except the United States, should tolerate a head of state who holds US citizenship.

France does not threaten its citizens abroad with penalties.