Response from Liberals

Because I posted the reply from the NDP via Murray Rankin in its own thread, I am doing the same with the Liberal Reply Trudeau of June 25.

Dear Ms. Swanson:

Thank you for taking the time to write to me with your concerns regarding the Foreign Account Tax Compliance Act (FATCA).

The safeguarding of personal privacy has become an increasingly important issue to all Canadians. The government’s move to ensure that information is reported to the U.S. through Canada Revenue Agency (CRA) and not directly from the banks was a positive step; however, the implications of having the CRA report to a foreign government about Canadian citizens are still troublesome. The Liberal Party of Canada believes that the Conservative government’s efforts to safeguard the personal privacy of Canadians have been inadequate.

While the United States has the right to target tax evaders using offshore accounts, targeting hard working Canadians who pay taxes is unfair. 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 deal reached between Canada and the U.S. is insufficient to protect affected Canadians.

Thank you once again for writing to me; I always appreciate it when Canadians take the time to share their concerns with me. It is through such exchanges of ideas and opinions that I can best represent not only my constituents, but all Canadians.

Sincerely

Justin J.P. Trudeau

Response from NDP

I have just received a response to ADCS on the letter we sent to the leaders five months ago. Here is the reply from Murray Rankin.

RE: US Foreign Account Tax Compliance Act (FATCA)

Thank you for writing to share your ongoing concerns regarding the U.S. Foreign Account Tax Compliance Act (FATCA) and the Intergovernmental Agreement (IGA) between Canada and the United States designed to implement FATCA in Canada.

New Democrats are deeply troubled by the implications of FATCA and the associated IGA, and we are closely monitoring the litigation your organization has commenced against the Government of Canada.

From the beginning, many organizations raised the alarm that the IGA for the implementation of FATCA in Canada may violate the privacy rights of Canadians and could be subject to constitutional challenge.

The NDP has repeatedly raised concerns about the FATCA agreement that was negotiated behind closed doors and rushed through Parliament without proper consultation or examination.

Previously, New Democrats called on the Conservative government to acknowledge the broad concerns expressed by Canadians and civil society organizations regarding the implementation of this IGA. We asked the Conservative government to agree to remove it from omnibus Budget Bill C-31, which granted the Minister of National Revenue sweeping powers to make any regulation necessary to carry out the agreement.

It is my belief that the decision to rush this legislation through Parliament was reckless and, as a result, it lacks the safeguards needed to protect many of the rights that Canadians so dearly value.

New Democrats have repeatedly questioned Conservatives in the House of Commons and at the Standing Committee on Finance. It became abundantly clear that the Conservative government has very little understanding of the consequences of FATCA and has been tone deaf regarding the very real concerns of hundreds of thousands of Canadians.

Moving forward, New Democrats remain committed to ensure that Canadians’ voices are heard and that our laws are consistent with the constitution, the Charter of Rights and Freedoms, and Canadian sovereignty more broadly.

A New Democrat government will order a full and urgent review of the FATCA IGA to identify and address all measures that threaten the constitutional and privacy rights of all Canadians.

We will seek to reopen the IGA for renegotiation with the United States in order to address the serious concerns of Canadians and ensure that their rights are protected. We will do so in an open and transparent manner – instead of the secretive manner pursued by the Conservatives.

More broadly, we will ensure that all proposed legislation is subject to a more robust screening to ensure compliance with the Constitution and the Charter of Rights and Freedoms. The Conservatives have failed to uphold this duty, with the result that, in many instances, litigation was initiated that could have been avoided.

As noted above, New Democrats continue to closely watch the progress of your litigation against the Government of Canada.

We also understand that many people across Canada are now directly facing the consequences of the agreement. New Democrat Members of Parliament will continue to assist individuals access the information and resources they need regarding how the FATCA IGA affects them.

Please feel free to contact me with any concerns you may have.

Sincerely,

Murray Rankin

NDP Candidate for Victoria

NDP Deputy Critic for National Revenue

An Interesting Analysis of an Analysis: John Richardson on Roy Berg on the Summary Trial

 


 
Stephen Kish has obtained permission from Tax Notes International to reproduce an article by Roy Berg to be posted (only there and only once) at the Alliance for the Defence of Canadian Sovereignty WordPress blog. The article is an interesting analysis of some main points regarding the Summary Trial which took place in Vancouver August 4-5, 2015.  John Richardson has taken that article, comments from the recent BNA article (linked below) and his own experience at the trial and examined how he sees the interaction. I am providing some main excerpts which will hopefully give a sense of what is involved and make you curious enough to go over and read the the article and the post.
 

On August 20, 2015,  BNA published an article on the Alliance For The Defence of Canadian Sovereignty that took place earlier this month. The article was posted by Stephen Kish at the Isaac Brock Society. As expected the article generated a large number of comments. The BNA article included the thoughts (and only the thoughts) of a number of Canadian tax practitioners.

Early Brock commentary on the Vancouver trial noted the presence the of lawyers from Moodys Gartner. The BNA article included commentary from  Moodys lawyer Roy Berg. In an article published on August 24 by Tax Notes, Mr. Berg expands on his views of the issues raised in the Vancouver trial.

A “report” on Mr. Berg’s Report …

The article, which is really a “report” of the trial, attempts three things:
First – to identify the issues raised in the Vancouver Trial

Second – to distinguish the issues raised in the Vancouver trial from the issues that are likely to be raised in the “full Charter trial”

Third – to provide his own commentary on how the issues should be resolved.

 

Having sat throught the Summary Trial, I can guarantee that trying to be clear about the issues raised, is/was not easy. What was really difficult was realizing that the interplay of the Treaty, the IGA, Canadian law, US law etc., does not end up with a nice and neat, clear answer. Determining how to weigh it all out seems to me, impossible to do (objectively). I suppose primarily because, in spite of the Treaty, one would naturally expect that in Canada, Canadian law should have precedence. The issues concern for the most part, Canadian citizens and Canadian residents, regardless of their US status. Their relationship to the United States should be a secondary one. All other nations of the world seem to understand this principle. The aberration here is as we all know, citizenship-based taxation. Why any country would sign a treaty with the US with the inevitable savings clause is truly mystifying. What does the other country gain by agreeing to such a thing? NOTHING! That, along with that annoying “tax treaty override” tendency, (say it now, U-S-A, I-G-A! U-S-A, I-G-A!) certainly suggests expecting the US to honor what is signed in a reasonable way is just plain naive and or stupid. That’s why they need the 30% sanction. Kinda like they have to have the IGA because what they are doing is not in the Treaty….A never-ending loop……
 

I encourage you to read his article. There are two areas that I found to be of interest.

We all know that Justice Martineaus’s decision will be appealed. If the plaintiffs win, this means that the Court has ruled that the information cannot be transferred to either the CRA or the IRS.

 

In his article, Mr. Berg suggets should the plaintiffs win, the defendants will likely appeal with the appeal and trial on the Canadian constitutional issues being heard later this year or by early next year. Whether or not the win would prevent the IGA entering into force is unknown. If so, it would be likely that the U.S. Treasury or the competent authorities would be likely to intervene in order to prevent such a result.
 

Imagine, the Obama’s U.S. Treasury “intervening” in a Canadian court to attempt to enforce the right of the U.S. to extract information from Canadian citizen/residents! What a spectacle that would be

 
I cannot follow how the United States would be permitted to intervene in a Canadian court proceding. As if the extraterritoriality of the entire issue is not enough, we must then endure their interference in our own judicial system? At what point do we as a separate nation, have the right to chart our own direction based upon our own best interests? I can feel your blood rising already….
 

Second, Mr. Berg’s analysis of the distinction between “assessable penalties” and other kinds of penalties. This is interesting and is an argument that is helpful to the plaintiffs.

 
This is perhaps, the most fascinating aspect of the article. If I understand correctly, should the IRS apply information reporting penalties, the plaintiffs would not have access to IRS Appeals nor the US Tax Court. The net result would be that having given the IRS the information resulting in assessment of penalties, Canada would have provided assistance in collection. The late Finance Minister, Jim Flaherty repeated this over and over and over; that Canada would not provide assistance toward the collection of FBAR penalties. And why? Because it is not in the Treaty! Does this also include other non-tax, information reporting forms penalties? I am far too tired to attempt another try at the Treaty right now but it sounds like it might.
 

Conclusion …

The “Alliance For The Defence of Canadian Sovereignty” and the STOP FATCA movement have had difficulty (so far) in generating media coverage. Mr. Berg’s commentary is an important part of the process in raising awareness of these issues. In addition, the content of the  commentary in his article was (in my opinion) fair, balanced and a welcome addition to the “FATCA debate”.

 
 
I am sure all will have plenty to say. Look forward to hearing it!
 
 

John’s Report of Roy Berg’s Report

Roy Berg (of “jingoistic hyperbolic rhetoric” fame) has written an article for Tax Analysts on the Summary Trial.

Stephen received permission to post the article at ADCS website. We cannot post the article here for copyright reasons, but you can read John’s Report on Roy Berg’s report at ADCS. There is a link there to Mr. Berg’s article.

John says:

The question is simple:

Do the provisions of the Canada U.S. FATCA IGA provide the conditions that would allow for the transfer of information that the FATCA IGA contemplates?

The answer is difficult

The plaintiffs say NO and the Government says YES.

We are all hoping the judge agrees with the plaintiffs.

One Mile. A Disastrous Difference.

Ginny asks how the USA justifies targeting just one innocent little sister.

In sending this photo, the cowgirl in the center said:Cowgirl Ginny

Two got off scot free, although all three are Canadians: One owes her soul and financial information to The Man. Three little girls, with one born one mile apart across the Detroit River. A disastrous difference.

Two sisters were born and raised in Windsor. Ginny was born to two Canadian parents a mile away across the Detroit River. Like her sisters, Ginny grew up in Windsor and has been a Canadian citizen since birth.

This shows the insanity of all of this–including why is her Canadian government making Ginny less a Canadian citizen than her sisters?!?

As Ginny says:

Three little sisters sitting inocently on a wagon. Only one is a tax evader. Her parents obviously brought Ginny, their little five year old American/ born Canadian back to Canada so she could stash their millions in a sheltered off- shore account in Canada. When the Harperites candidates knock on your door asking you to vote for them, ask them why this little girl and her over one million similarly situated Canadian citizens are being sacrificed by the Canadian government.