Category Archives: Issues regarding US persons abroad

An analysis of a recent FACTA enforcement development by John Richardson (posted with permission).

Welcome To 2023 – A Year Of Heightened FATCA Enforcement

On December 30, 2022 US Treasury released Notice 2023-11. The broad purpose of the Notice is to prescribe conditions that would allow non-US banks to temporarily avoid a designation of “significant non-compliance” under the FATCA IGAs. It is important to note that Notice 2023-11 is NOT simply a “stay of execution”. It is a “stay of execution” that is conditional on both non-US banks and their governments participating in a significant escalation of FATCA enforcement on US citizens who live outside the United States.

The purpose of this post is to comment on and analyze the provisions of Notice 2023-13 which strongly incentivize non-US banks to purge themselves of existing US citizen clients. In Part 2 I will explain why I believe that non-US banks may be forced to close the accounts of all their US citizen customers.

Prologue And Summary Of The Issue

Through a combination of FATCA (“Foreign Account Tax Compliance Act”) found Chapter 4 of the Internal Revenue Code and the FATCA IGAs (the mechanism for countries to comply with FATCA) the United States has created conditions where US citizen customers are a burden and risk to non-US banks. These provisions have created conditions that threaten punitive financial sanctions on non-US banks who cannot notify the IRS of a US citizen’s Social Security Number. Generally this is because the US citizen has lived abroad for many years and does NOT have a SSN. This situation has created worry for the banks and for their US citizen customers. The fact that the US citizen does NOT have a SSN is NOT relevant to the reporting obligation imposed on the bank. To be clear: The FATCA IGAs mean that non-US banks can easily be in “significant non-compliance” for the failure to comply with something that is impossible to comply with. (continued – see lower left)

Declaration of R. Bitter

Notice of Intent to Pursue Rulemaking to Reduce Fee Amount

Thanks to Mr. A for writing this letter and posting it as a comment, originally on the ADCS thread.

Dear Ms O’Brien,

You are quoted in a recent article in the The Lawyer’s Daily (“Federal Court of Appeal dismisses Charter challenge to CRA-IRS agreement to share banking info”, Oct. 4/22) as describing the appellants as “US citizens who happen to live in Canada”.

That may be one way to describe them, but it is distorted and misleading. What if the appellants are also Canadian citizens? What if they have lived in Canada for most or all of their adult lives? What if they have no meaningful connection to the US?

Should their US place of birth and (imposed) US citizenship take precedence over their Canadian citizenship?

People with these personal circumstances are a significant part of the group that the FATCA Charter challenge represents, and are more accurately described as “US born Canadians who live in Canada”.

Approximately 20% of Canadians were born outside of Canada. Should this minority of Canadians have their Charter rights violated just because they were not born in Canada? The Canadian government did not believe so when Eritrea tried to tax Canadians of Eritrean origin several years ago. The Harper gov. expelled an Eritrean diplomat from the country. And yet when the USA is the offender it is allowed.

https://www.cbc.ca/news/politics/eritrean-diplomat-ordered-out-of-canada-after-tax-on-ex-pats-1.1309691

Eritrean diplomat ordered out of Canada after ‘tax’ on ex-pats
Foreign Affairs Minister John Baird has ordered Eritrea’s consul general, Semere Ghebremariam O. Micael, to leave Canada by June 5, and said whoever replaces him must be prepared to play by the rules.
http://www.cbc.ca

FATCA violates sections 7, 8 and 15 of the Charter. And yet the perceived risk to our banking system (threat of 30% penalties on US source income to Canadian banks) is the reason that the Court has ruled against the appellants. The financial and economic power of the US takes precedence over the Charter rights of Canadian citizens living in Canada.

You acknowledge that the US is an “outlier in international taxation” with its system of taxation on the basis of residence and citizenship. Yet you are silent on the injustice of this citizenship taxation. Would you wish to have your personal private financial account information reported to a foreign tax service purely on the basis of your place of birth? Would you pay taxes (and accounting fees) on your Canadian earned and taxed income to a foreign country just because you were born there?

You call FATCA a “valid US law that has a legitimate purpose”. This is true when trying to prevent tax evasion by US citizens who reside in the USA. It is an unjust law when applied to citizens and residents of other countries. “Offshore” financial accounts for US residents are local accounts for residents of other countries.

Yet the most that you can do is suggest that FATCA may amount to “extraterritorial overreach”.

Look at the public uproar that forced StatCan to back down on its plan to collect data from some bank accounts anonymously.

https://financialpost.com/news/fp-street/statistics-canada-overreached-with-banking-info-collection-plans-privacy-czar

And yet the Court and people like yourself feel that FATCA account reporting of a minority of Canadian citizens/residents is not unconstitutional. You must be more forthright and honest, and admit that FATCA is unconstitutional for Canadian citizens living in Canada (who also may happen to be US citizens), but when it comes to American economic power and extortion, Charter rights are overridden.

Yours Sincerely,

As the holiday season approaches, we’re getting together for dinner and drinks on Tuesday, December 6^th, 6 pm, at The Lieutenant’s Pump pub, 361 Elgin Street (two blocks North of Gladstone).  Good food and drink and, important for us, it’s a good place for conversation, quiet early in the week and comfortable.  Hope you can join us!   Please RSVP by leaving a comment or e-mail pacifica.isaacbrocksociety@gmail.com

The site went down Friday night due to an accident during routine maintenance with repair complicated by a software incompatibility. Thanks to our webmaster for a great job getting us back on line. Thanks also to everyone who e-mailed to make sure we knew the site was down and/or expressing concern, and welcome back to all!

Stop American Extraterritorial Taxation is collating letters which people wrote to US Congressmen/women or Senators, in order to document and provide evidence of the difficulty of motivating Congressional representatives to acknowledge, understand and respond to the issues facing US citizens who live permanently outside the United States.  This Book of Letters will aid SEAT in their continued efforts for legislative, regulatory and/or judicial changes to Citizenship Based Taxation.

To participate:

1. Find your letters to your representatives. Please prepare them in a word file (deleting your name and address if you wish).

2. Find the response from your representative. Please delete any information that identifies you.

3. Please email both attachments to: letters at seatnow dot org

As Summer draws to a close in Canada and we await the Federal Court of Appeal’s decision in the ADCS lawsuit (Deegan v. Canada – file no. A-370-19), Anti-CBT and Anti-FATCA lawsuits in several countries, particularly Bittner v. US at the US Supreme Court, are featured in two recent articles.

Both Helen Burggraf in “American expat campaigners laying groundwork for citizenship-based tax challenges” and Andreas Kluth, in “Next, the Supreme Court Decides How to Punish US Expats,” report on FATCA lawsuits currently underway in Canada, France, Netherlands and the UK, with focus on the US challenge, along with illustration and analysis of the difficulties CBT/FATCA  are causing people worldwide.

Several of us are getting together to socialise:

Date:  Saturday, 20 August 2022 (rain date 27 August)
Time: 1:00 pm
Place:  McNabb Park, corner Gladstone and Bronson.  We’ll be in the grove between the skateboard area and the playground.  BYO beverages/munchies.

Hope you can join us!  Please rsvp by leaving a comment or e-mail me at pacifica.isaacbrocksociety@gmail.com

McNabb is on OC Transpo routes 10 (Bronson) and 14 (Gladstone). Street parking on adjacent side streets is free and there’s usually plenty available Saturday afternoons.

March 30, 2022 – The Next Step In A Long Journey

Long-awaited ADCS-ADSC, 'Gwen and Kazia' FATCA appeal hearing in Canada takes place today – March 30, 2022 https://t.co/QbWGgp4mdu

— U.S. Citizen Abroad (@USCitizenAbroad) March 30, 2022

The ADCS Lawsuit Discussed In The Legal World

On the eve of the @ADCSovereignty #FATCA Canada lawsuit appeal, here is an article that discusses the history of the case and how it relates to the Can/US Tax Treaty. https://t.co/WyBfb55deL

— U.S. Citizen Abroad (@USCitizenAbroad) March 29, 2022

I came across an interesting article today. The article is of interest for at least four reasons which include:

29173_collecting_another_countrys_taxes__recent_experience_in_the_canada-u_s__context

Continue reading →

MARCH 30, 2022 FATCA IGA LEGISLATION TRIAL HAS BEEN HELD AT CANADA’S FEDERAL COURT OF APPEAL: We wait for the decision in 4-6 (?) months — Crown argued that FATCA turnover is minimally intrusive, just like a T5 slip — Our side still disagrees.