Here is an excellent new Interview with Professor Allison Christians on FATCA.
She makes several insightful and informed comments. She says everything there is to say about FATCA with one sentence:
The main feature of FATCA is fear.
Let’s not let that fear overtake us. We need to keep fighting for what is right.
The venue and time for the “Solving US Citizenship Problems” Information
Session have changed. This program will take place at:
The Westin Grand Hotel – Symphony Room (banquet hall)
433 Robson St. (between Richards and Homer – 2 Blocks NORTH of original location)
Vancouver, British Columbia V6B 6L9
Time: 1:30 – 4:30 pm
Donation $20 (to cover costs) payable at the door
I am not a lawyer, and the following is not legal advice. However, in reflecting on the wording of the Canada-US IGA and the wording of the Canada-US Convention (aka “treaty”) under which the IGA is signed, I pose the following question (which would need to be answered by a lawyer and maybe by a judge).
Given the wordings I have extracted below, can Canda Revenue Agency in fact and in law, and under these agreements, provide account information to IRS with respect to persons resident in Canada who are Canadian citizens (whether by birth or by naturalization)? This may hinge on the interpretation in law of the phrase “subject to the confidentiality AND OTHER PROTECTIONS” provided in the Convention (tax treaty), which Convention specifically EXEMPTS from collection by CRA any US tax liability claims made against any Canadian resident who is, and was at the time period for which the tax liability claims are made by IRS, OR WHO IS AND WAS PRIOR TO NOVEMBER 9, 1995, a Canadian citizen (no matter what time period for which a tax liability claim might be made). My non-legal mind certainly interprets that exemption as a “protection.”
Here is the proposed legislation to enable FATCA IGA in Canada, which is called Legislative Proposals Related to the Canada-United States Enhanced Tax Information Exchange Agreement Implementation Act.
I don’t pretend to understand all the legalese, but this jumped out at me:
Inconsistent laws — general rule
4. (1) Subject to subsection (2), in the event of any inconsistency between the provisions of this Act or the Agreement and the provisions of any other law (other than Part XVIII of the Income Tax Act), the provisions of this Act and the Agreement prevail to the extent of the inconsistency.
Inconsistent laws — exception
(2) In the event of any inconsistency between the provisions of the Agreement and the provisions of the Income Tax Conventions Interpretation Act, the provisions of that Act prevail to the extent of the inconsistency.
Four lawyers have confirmed this means where this new law is in conflict with existing Canadian laws, the law to enable the FATCA IGA will prevail over all other federal laws except the Charter.
That means that this law will supercede Canadian banking, privacy and human rights laws.
This means our only recourse may be a Charter challenge. Scary thought. That could be long, messy and expensive if we have grounds for a challenge. Some of us are exploring our options in that regard. Stay tuned.
In the meantime, be sure to get your submission into Finance Canada before the deadline of March 10 to let them know what you think. Also lobby your MPs hard to prevent this law from ever being passed.
I truly did not think we would ever see the day when this would happen.
I told people at the London Ontario session last week I would have a synopsis of the information session this week.
Other FATCA related projects have consumed my life and I’ve only begun working on it. When it is finished, I want John to review it so it may be the weekend or even next week before I post it. Please be patient.
Also, if anyone who was at that meeting is interested in getting together with others informally, could you either post something here or send me an e-mail at maplesandbox at yahoo dot ca. I wish I had asked people to sign their names if they were interested in that.