Category Archives: Issues regarding US persons abroad

President Obama gave a speech to the Canadian House of Commons on Thursday, June 29, 2016. I thought his message deserved a response from a US-born Canadian. Here are my replies to excerpts of his remarks.

In his opening statement Mr. Obama addressed the “people of Canada”.

He was certainly not addressing those of us who actually hail from his country originally. In 2010 he signed into law the Foreign Account Tax Compliance Act (FATCA) by which he began the extortionate enforcement of an antique law from over 100 years ago that nobody knew about, the law of “Citizenship-based Taxation” (CBT). There are many in the Canadian population reckoned to be American by virtue of birth in the USA even though we have subsequently become Canadian citizens, and are as Canadian as the Prime Minister! Yet because of the law of CBT we are also judged to be US taxpayers until the words “I renounce my United States citizenship” comes out of our mouths at the cost of $2,350 USD,  five years of back taxes, and potentially bankrupting penalties.

Belying the festival of brotherly love in the House of Commons on the 29^th of June, divorcing their connection with the United States is now the primary goal of many so-called “US Persons” in Canada. This is because FATCA demands that all Canada’s banks notify the Canada Revenue Agency (CRA) of any clients suspected of being US citizens. The CRA will, in turn, hand over that information (which includes the clients’ names, their account numbers, and the balances in their accounts) to the American Internal Revenue Service (IRS). The record of a client’s birthplace is enough to set this scheme rolling.

In the few seconds it took each of us to read that dreadful news when it first hit the newspapers in Canada in June 2011 our lives were changed forever.

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Thank you, Keith Redmond, for sharing the trail of your correspondence with US DOS (Michele Thoren Bond, Assistant Secretary for Consular Affairs, American Citizen Services, US Department of State and Michelle and Michelle Bernier-Toth, whose DOS position is not stated, but it is implied she is an assistant to Jonathan Finer). We appreciate your asking to keep the conversation going to get through the obfuscation from DOS.

From Michelle Bernier-Toth:

Finally, with regard to your colleague’s question about “dominant and effective nationality,” this is a legal concept sometimes used by states and international dispute resolution forums to determine whether certain individuals or states are able to bring legal claims based on violations of international law. Dominant and effective nationality is an extremely fact-specific inquiry, and we do not employ a general definition of the concept in the international claims context in which it arises.

Keith Redmond’s response:

Good Morning –

Though I do not agree with the way in which the US government (and in this case the US State Department) is handling (i.e. not handling) the situation which is adversely affecting the live of citizens of other countries (e.g. French citizens) who have the undesirable US citizenship because of their parent’s unintentional error in having their child on US soil, I sincerely appreciate your responses and would like to keep the dialogue open as I am working with those living the “nightmare reality” on the ground at the hands of the US government. It is important to note that these individuals cannot live normal lives DIRECTLY as a result of the ACTIONS of the US government and in my opinion, as an American, it is shameful what our country is doing to this population and quite frankly does not care.

It is important to note that the trend is for other countries (e.g. France, Israel, Canada, The Netherlands, Italy, etc.) to realise what is being done and to push back on the US government through the appropriate channels (e.g. diplomatic). This problem is not going away and is getting worse until the US government acknowledges the serious hardships it has created globally.

As an American who is focused on these injustices, the fight shall continue for the civil rights of these populations.

Respectfully yours,
Keith REDMOND

(Thanks to JC and badger suggesting better visibility in its own post here at IsaacBrockSociety.ca).

Pushback to #FATCA from Europe & Israel, Canada & U.S.https://t.co/kmORiImPtg #AccidentalAmericans

— Patricia Moon (@nobledreamer16) June 27, 2016

I am reproducing a post by Jude Ryan from the Facebook group Accidental Americans” in the event some may not be aware that there is movement in countries outside Canada and the U.S. against FATCA.

I know there has been a lot of work done by the Australians and wish to mention it even though it was not included in the post I am reproducing.

A recap on ongoing domestic actions

To the extent we have have other nationalities present on this page (I know we do) please feel free to use this information to put pressure on your domestic politicians.

FRANCE

The lower House of Parliament, the Assemblee Nationale, has set up a fact finding mission to investigate the extraterritorial reach of US laws and in particular the invidious position French “Accidental Americans” find themselves in.
The mission statement of this commission is as follows: The commissions for foreign affairs and finances of the French Parliament (Assemblee Nationale) decided to form a joint fact finding mission regarding the extraterritoriality of certain US laws, which held its inaugural meeting on Wednesday 2 March 2016. The president of the mission is Mr Pierre Lelouche (Republican Party, Paris) and his rapporteur is Ms Karine Berger (Socialist Party, Hautes-Alpes). Several recent events have highlighted the propensity of the US courts and the US administration to purport to impose sanctions against foreign corporations and foreign individuals in respect of events occurring outside of US territory: these range from the record penalty one of France’s largest banks agreed to pay to the US administration (for a failure to comply with a US imposed embargo) to the acquisition of Alstom by General Electric against a backdrop of anti-corruption claims brought by the US authorities against senior managers of Alstom and including the US IRS pursuing French citizens living in France but born on US soil and therefore “Accidental Americans” for US income taxes. Based on the feedback of a wide array of experts, the fact finding mission will attempt to define the contours of US extraterritoriality, exhaustively identify all cases of extraterritorial application of US laws, assess their impact and in particular their impact on fair competition and the economic losses suffered by French companies as a result, and to study ways in which to counter such practices both at a national and European level. The mission hopes that its findings will lead to concrete implementation measures. The longstanding and deep ties that exist between France and the US in no way justify that the US should seek to assert legal imperium outside of its borders.

A hearing of French “Accidental Americans” was held on 8 June 2016 and at which issues raised by FATCA and the US practices of
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Our Plaintiffs believe that the sacrifice of Canada’s sovereignty to a foreign state is wrong. Canadians can support Plaintiffs Ginny, Gwen, and Kazia by being a Witness in our FATCA IGA lawsuit. — If interested contact me at Stephen.Kish.Chair@adcs-adsc.ca

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TORONTO CAN, Saturday, June 25, 2016

Are you or have you ever been, a U.S. Person? FATCA is looking 4 u. Toronto, Sat June 25, 1-3 pm 100 St. Joseph St. https://t.co/BcPYBqOCXj

— U.S. Expat Canada (@USExpatCanada) June 21, 2016

Have you received a FATCA letter or been warned of the consequences of being a U.S. person?
 

New this year in the U.S. assault on people and countries outside its borders, is the “second wave” of reporting – the “entity” reporting. This is nothing less than every financial entity – any corporation, non-profit corporation, your Canadian controlled-private corporation (CCPC), any fund with shareholders-is fair game for an associated financial lender, bank etc to ask:

“Who are your clients, shareholders? Are they, or have they ever been, U.S. citizens?”

If so, they need to fill out a US tax form. (W8-no withholding for non-US taxpayers or W9-for withholding on US taxpayers) to be kept on file with the bank.

My financial advisor indicated he now realized I had not exaggerated the extent of this U.S. interference in Canada. He now has to ask each and every new client, regardless of what they are buying,

“Are you, or have you ever been, a U.S. citizen?”

Utterly outrageous.

PLEASE register in advance by email to nobledreamer16 at gmail dot com

When: Saturday,June 25, 2016 1-3 pm
Where: 100 St. Joseph St., Toronto ON M5S 2C4 MAP
Admission: $20 payable in cash at the door
Who: John Richardson, B.A., LL.B., J.D. (Of the bars of Ontario, New York and Massachusetts), Toronto citizenship lawyer and Co-chair of the Alliance for the Defence of Canadian Sovereignty and the Alliance for the Defeat of Citizenship Taxation.   citizenshipsolutions.ca

Information presented is NOT intended or offered as legal or accounting advice specific to your situation.
*****

Last week, Congress published H.Rept. 624 on the Financial Services and General Government Appropriations Bill (H.R. 5485). One paragraph in the report shows a slight concern for our issues. CTRL+F for “Foreign Account Tax Compliance Act”, or see p. 26 of the PDF:

Foreign Account Tax Compliance Act.—No later than 180 days after enactment of this Act, the Department of the Treasury shall submit a report to the Committees of Appropriations of the House and Senate on its decision (TD 9610 (78 FR 5874)) and TD 9657 (79 FR 12811)) to require withholding on non-cash value insurance premiums, including payments by foreign insurance brokers. No later than 180 days after enactment of this Act, the Committee directs the Government Accountability Office to determine the impacts of FATCA on United States citizens living abroad and make recommendations on FATCA implementation.

The Appropriations Committee could have done much more than this, such as prohibiting any of the appropriated funds from being used to implement FATCA. (Indeed, they did prohibit the funds from being used for far higher-profile Homeland causes célèbres, such as determination of tax-exempt status of non-profit organisations.) On the other hand, at least it’s a bit of progress from House Republicans’ earlier inattention to the issues of U.S. persons in other countries, such as last year when they voted nearly-unanimously to blow a giant hole in their own budget and repeal the estate tax while leaving the estate-tax-backstop § 2801 in place — which would have given Homelanders who leave $15 million or $15 billion to their kids a lower tax rate than emigrants who leave $15,000 to their kids.

If the executive branch’s past attitude towards deadlines is any guide, it will take far longer than 180 days for this report to get written. In June 2014, for example, the Senate Appropriations Committee directed DHS to report within 90 days on their efforts to implement the Reed Amendment. DHS’ report, discussed here at Brock, was finally published 350 days after the passage of the relevant bill.

And of course, when the report finally does come out, it will consist entirely of boilerplate lies about how FATCA doesn’t have any negative impacts on United States citizens living abroad (and even if it does it’s your own fault not the government’s fault, and even if it is the government’s fault it’s justified because of “tax evasion”, and even if the alleged individual international tax gap is utterly miniscule compared to the domestic tax gap the United States must do something and FATCA is something therefore it’s a Good Thing).

Conclusion

This is not a development that should cause any Brock readers to change their good plans. If you were planning to go get a CLN, keep that appointment at the consulate — it’s absurdly hard to get another one. If you were planning to continue your ordinary law-abiding life outside of the United States without obtaining a CLN, keep on keeping on. But if you think you’re U.S. tax compliant and have nothing to worry about, well, you’re lying to yourself — and even after this useless report comes out, you’ll still be lying to yourself.

WITNESS SEARCH UPDATE FOR CANADIAN FATCA IGA LAWSUIT:

WE STILL SEEK MORE CANADIAN WITNESSES:

Have you experienced marital stress or breakup, or medical or psychiatric illness because Canada turned you and your family over to a foreign country — or because you were afraid and entered into IRS compliance and suffered harm, or because you are in “hiding” and can’t afford to be IRS compliant or to renounce? Be a witness.

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UPDATE – June 14, 2016

The following items were kindly provided by Allison Christians; sources for this paper:

ATIP docs

ATIP Detailed TIMELINE

Questions Submitted
NB: notice 3 different dates for when the house was aware of the IGA exemption to tabling policy
 
Reposted with permission of the author

WHILE PARLIAMENT SLEEPS: TAX TREATY PRACTICE IN CANADA
Allison Christians*

10 J. PARL. & POLITICAL L. 15 (2016).
 
 
ABSTRACT
Canada’s Parliament plays little but a perfunctory role in the adoption of tax treaties, even though these agreements have significant impact on Parliamentary autonomy over core national budgetary matters as well as core legal and administrative functions. This article argues that Canada’s tax treaty process reflects a studied and intentional preference against public engagement in international fiscal policy, and that this stance has a negative impact on the rule of law. The article demonstrates the governance issue posed by lack of meaningful Parliamentary oversight using a recent departure from stated treaty policy, namely, the passage of a controversial agreement to implement the Foreign Account Tax Compliance Act (FATCA), an aggressive and extra-territorial regulatory regime imposed on Canadian financial institutions by the United States. The article examines the implications of Canada’s approach to this and other tax-related agreements and concludes that a much more engaged and informed Parliament is vitally necessary to achieve integrity in Canada’s treaty process.

INTRODUCTION
Tax treaties are the means by which nations share the revenues generated by cross-border business and investment activities. By ceding jurisdiction to tax certain kinds of income according to international norms, tax treaties constrain legislators’ autonomy in setting national tax policy. Because Canada’s ratification process involves adopting tax treaties as domestic law, these agreements also create access to administrative and judicial procedures in Canada, and thereby introduce international legal processes and principles in the interpretation of domestic tax law provisions. We might therefore expect that Parliamentarians would pay close attention to the tax treaties that come before them. Yet, Parliament plays little but a perfunctory role, mechanically passing tax treaties with virtually no scrutiny even as these instruments have gradually expanded in scope and arguably shifted in purpose.

What explains Parliament’s minimal input on tax treaties despite the significant role they play in national tax policy? A plausible answer seems to be a settled history of foreign affairs being the sole prerogative of the Crown, coupled with a treaty policy that prioritizes procedural expediency in Parliament over the messy politics involved in greater deliberation. Applied to a technically complex area like taxation, the desire for expediency— and likely an unspoken but rational desire for those in power to conduct foreign affairs without impediment—may encourage successive governments to navigate tax treaties quickly through Parliament despite occasional pledges to align treaty-making processes with principles of democratic participation in lawmaking, and established processes that would facilitate such participation.

Taking the position that tax treaties have significant impact on Parliamentary autonomy over core national budgetary matters as well as core legal and administrative functions, this article argues that Canada’s tax treaty process reflects an unstated preference against public engagement in international fiscal policy, with a negative impact on the rule of law. It first documents recent tax treaty processes in the context of the broad precepts associated with the treaty power, drawing attention to deviations from established precedents and stated policies. It then demonstrates the governance issue posed by lack of Parliamentary participation using a recent and significant departure from stated treaty policy. Finally, it argues that following established treaty procedures could be a marginally more appropriate approach to tax treaty policy, at least to the extent it would reintroduce democratically legitimate legislative constraints on the executive even while preserving the Crown’s treaty-making prerogative. However, as the article concludes, a much more engaged and informed Parliament is vitally necessary to achieve integrity in Canada’s treaty process.
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Cross-posting from Maple Sandbox and its original post at http://www.citizenshiptaxation.ca:

“You Pay For What You Don’t Get” Submission to Global Forum