Monthly Archives: August 2015

Questions to Ask Cross-Border Lawyers and Accountants

Over at Brock, Wondering has put forward several excellent questions to ask cross-border lawyers or accountants before doing anything.
If you are a Canadian citizen considering engaging ANY cross-border lawyer or accountant, ask these questions at the initial conversation:

1) If I do not choose to comply with US extra-jurisdictional tax claims, what is the specific mechanism by which they will collect a tax claim from me using Canadian courts and laws? Can the US or any other foreign state garnishee my Canadian wages? Can they seize my Canadian bank accounts?
2) I understand that under the Canada–US Tax Treaty, Canada will not assist in collecting US taxes from any Canadian citizen, unless the tax claim proceeded their becoming a Canadian. How does this protection apply to my situation? Am I protected by this Treaty?
3) Do you know of any specific case where a Canadian court enforced a US personal tax claim or penalty against a Canadian citizen in Canada? When, where and who?
4) Do you know of any specific case where a Canadian citizen was detained the the US border because they had not filed US tax forms? When, where and who?
5) Are you prevented by any US law, professional certification, official registration or similar covenant with any US government agency from giving me full and frank advice?

I personally will not go anywhere near the cross-border folks. I already know the answers to most of the questions. My lawyer and my accountant agree with me that I have no obligation to do anything with the IRS.
If the cross-border specialist is honest, the answers should be:

1. There is no mechanism by which the IRS can collect tax claims in Canadian courts, The US cannot garnishee your Canadian income. The US cannot seize funds in your Canadian bank account.
2. If you are a Canadian citizen, CRA will not assist in collecting U.S. taxes–even if you are also an American citizen.
3. There is no known case of a Canadian court enforcing a U.S. tax or penalty against a Canadian citizen.
4. There are no reports of Canadian citizens being detained at the U.S. border because they had not filed U.S. tax forms.
5. Full and frank advice is greatly lacking from those in the cross-border compliance industry who are trying to suck Canadians in.

Don’t let IRS or the cross-border condors terrorize you. Know your rights before you do anything.

What a Prime Minister SHOULD Do About FATCA

Will Our Leadership Fail could be said of Canada and most other countries around the world. But, the author, a banker, is in Barbados.
Wild Coot begins with a familiar memory:

I might be wrong but if I remember correctly, the first reaction of our leader was “they can’t do that”. I am speaking about FATCA.

He says there once was a Prime Minister of Barbados who stood up to extraterriorial bullies. Justin, that is what your father would have done on FATCA.

There once was a prime minister who defied the US when it wanted to play in our territorial waters without permission – when it downgraded our airport for spite. He carried his case to the highest authority. That is when we were somebody. We had guts.

And he asks some questions that apply to us:

Will our esteemed politicians pass legislation that is iniquitous to our people? Let’s see who will vote yes or who will stand for democracy in the face of the “most democratic nation” in the world. Should not our Central Bank be prepared to defend our banks? Or can it? The silence is deafening.

Our so-called leaders have failed us. We have a chance to exercise our democratic rights in Canada during this election campaign. We need to ensure our voices are heard–even though all the “leaders” are now silent on FATCA.

John's Summary of the Summary Trial

John Richardson has done summaries of both days of the Summary Trial.
John’s Thoughts on Day One.
John’s Thoughts on Day Two.
john’s Morning After Hangover
From Day One Observations:

First – the Judge
My subjective impressions …
I have always felt that both “listening to” and “deciding” this case would be a nightmare for a single judge. That said, I am very pleased with the Justice Martineau. I say this for the following reasons:
He is working hard (and I thing gets it) to understand that FATCA affects Canadians who happen to also be U.S. citizens. He understands (I think) that the primary impact of FATCA is Canadian citizens and residents.
He is working hard (and I think he gets it) that the effect of U.S. “Extra-Territorial Taxation” is to subject Canadians to U.S. taxation which could result in double taxation (a point that is flatly denied by the Government lawyers).
He is (I think) a Judge who is experienced in a number of areas of law and understands that this is NOT JUST an issue of taxation (the Government lawyers are trying to paint a picture of FATCA being just one more treaty in the sea of “information exchange”).
My impression of him (rightly or wrongly) is that he is an intelligent man who attempts to be fair.
He clearly has spend considerable time learning about the broad issue AND he is seeking to learn more!
Some objective facts …
The lesson from John L. LeCarre’s “Russia House” – You can learn a lot by the questions that are asked …
russiahouse
For me, the most interesting part of the day was actually at the beginning. Justice Martineau began by asking the lawyers to explain where, in the Constitution of Canada, the Government of Canada received the authority to enter into the IGA. In others words what precise section of S. 91 of Canada’s Constitution allowed the Government to do this at all.
This was interesting to me for two reasons:
A. It demonstrated that he recognizes that there are constitutional limits on what the Government of Canada can do; and
B. It recognized the issue of whether the FATCA IGA could bind provincial credit unions (at least this is what I think he was getting at).
In any case, it’s very encouraging that Justice Martineau addressed the question of:
What allows the Government of Canada to enter into the IGA at all?
Second, Team Arvay …
Joe Arvay and David Gruber did a superb job. The issue in this “Summary Trial” is whether the FATCA IGA can be authorized/justified under the existing Canada U.S. Tax Treaty. To this end, Team Arvy had to explain:
A. That the FATCA IGA was subject to and limited by the terms of the Canada U.S. Tax Treaty (the Government is arguing that the FATCA IGA should be used to interpret the tax treaty); and
B. That the terms of the Canada U.S. Tax Treaty do NOT extend to authorizing the kind of information exchange required by the FATCA IGA.
I believe that they made the argument about as well as it could be made (this does NOT mean that the Judge will agree). But, the argument was well made. What impressed me most about Mr. Arvay’s discussion of the FATCA IGA, was that his description “hit the sweet spot” of:
explaining just enough so that the issue could be understood; but
NOT explaining so much that the issue could NOT be understood.
Lessons from Warren Buffett – You may recall Warren Buffett’s saying that:
Warrenbuffett
He would ensure that his children had enough money so that they could do anything, but not have so much money that they couldn’t do anything.
Joe Arvay and Warren Buffett both understand the “just enough, but not too much principle”.
Third, The Government lawyers …
Although our cause is just, the case is legally complex and the legal arguments are difficult. We all know that we begin with a presumption that the FATCA IGA will be upheld. Sorry, but that’s just reality. Anybody with a U.S. place of birth who lives outside the United States is now subject to oppression and persecution. It is incumbent on those who are oppressed and persecuted to reclaim their dignity, reclaim their rights and reclaim their freedom. That’s just the way it is.
The Government could have selected a better legal team. My impression is that the Government lawyers do NOT understand the broader implications of FATCA, that FATCA is an issue that affects ALL Canadians, that FATCA burden’s Canada’s sovereignty and most importantly that:
FATCA is simply wrong!
Remember:
“It’s not a sprint. It’s a marathon.”
This will be appealed. It will continue for a long time. That said, this group of “government lawyers” has the capacity to “snatch defeat out the jaws of victory.”
We will see.
Fourth, the observers …
It’s significant that there are people there. There are people watching. It’s shows that people care. It makes it clear to Justice Martineau that his decision will affect the real lives, of real people in real ways.
This can never be a bad thing!
Conclusion, so far so good …

From Day Two:

I note that commenters at the Isaac Brock Society continued to offer their “play by play”. For the most part the comments are interesting, accurate and reflect the mood of what was taking place. There were two moments when the language/suggestions/statements of the Government of Canada lawyer – resulted in audible commentary (laughter/snickering) from the audience. They were:
The suggestion that that Canada nobody forced Canada to sign the IGA, that it was signed voluntarily. “Nobody had a gun to Canada’s head”. Incidentally as part of this submission the lawyer argued that Canada received significant benefits under the IGA. Q. What significant benefit? A. Well, clearly the agreement of the USA to not impose the 30% FATCA sanction. As I was listening to this, I remembered the scene from the Godfather, when Don Carleone informed somebody that “either his brains or his signature would be on the contract“. But, hey this is what passes for diplomacy in the FATCA world.
Explaining that Eritrean citizenship taxation was offensive only because Eritrea was using its tax revenues to finance its military and prosecute wars. As you know, the United States does NOT UNDER ANY CIRCUMSTANCES use taxes to finance it’s military. Obviously the United States military must be financed through “local bake sales of brownies, coffee and cookies”. But no matter.
Part 1 – General – the bottom Line …
In yesterday’s post I outlined my thoughts on Day 1. This included a discussion of the lawyers on both sides and most importantly Justice Martineau. Justice Martineau continued to be the “star of the hearing”.
Through his questions (which were an attempt to understand and explore the issues), he really forced the lawyers on both sides to explain the Canada U.S. Tax Treaty, the IGA, how the IGA related (or not) to the Treaty, and aspects of U.S. citizenship taxation. Interestingly, on two separate occasions his questioning resulted in the Government lawyer agreeing that “FATCA was necessary to enforce citizenship taxation (paraphrase)”. At one point Justice Martineau seemed to be asking himself the question of whether Article XXV of the Canada U.S. Tax Treaty (the non-discrimination section) contemplated “dual citizenship”. In what appeared to be a “learning process” (on his part), Justice Martineau asked about about the treatment of “joint bank accounts” where one of the account holders was NOT a U.S. citizen. In other words, he appeared to appreciate that the primary impact of FATCA in Canada was on Canadian citizens who were resident in Canada.
The Canada U.S. Tax Treaty is called “The Convention Between Canada and the United States of America – With Respect to Taxes on Income and Capital”. Note that the purpose of the treaty is related to “Taxes on Income and Capital”. Allow me to remind you that Team Arvay was arguing that the IGA was NOT authorized by and was outside the scope of the Tax Treaty. (More on this later.)
Part 2 – What do I think Justice Martineau’s decision might be?
What cannot be known
I don’t know. Our “summary trial” represented the first anti-FATCA court hearing. The result will be appealed. The issue will go on for a long time. No matter who wins or loses, an appeal is certain. Justice Martineau’s decision may or may not affect the disclosure of information to the IRS. That I cannot know.
What is clearly known
Regardless of his decision, Justice Martineau is likely to write a comprehensive decision that explores the facts and the issues. His decision will be reviewed on appeal and the contents of his decision will be a major part of the review.
I am confident that even if the Government wins round 1 (and I am not suggesting I believe this will happen), Justice Martineau’s decision is likely to include certain “findings”, “observations” and “arguments” that will be very helpful to ALL anti-FATCA and anti-CBT litigants going forward.
This means that the result of the August 4, 5 “Summary Trial Battle” will play a major role in winning the “FATCA and CBT Wars!”.
After the two day hearing it was amply clear that FATCA, CBT, the IGA are example of U.S. territorial overreach IN THE EXTREME and a clear interference with the fiscal sovereignty of Canada.
The end of the Summary Trail, clearly represented the “End of the beginning”.
Part 3 – A real surprise – the possibly most significant part of the day …
Remembering that:
The Canada U.S. Tax Treaty is called “The Convention Between Canada and the United States of America – With Respect to Taxes on Income and Capital”. Note that the purpose of the treaty is related to “Taxes on Income and Capital”. Allow me to remind you that Team Arvay was arguing that the IGA was NOT authorized by and was outside the scope of the Tax Treaty. (More on this later.)
Assuming that the IGA is authorized by the Canada U.S. Tax Treaty and that the scope of the Tax Treaty is “Taxes on Income and Capital”, then one would think that the disclosure of information should be restricted to (think Article XVII) to information that “may be relevant”, to the calculation of taxes.
Justice Martineau raised the reasonable question of “what else all the banking information could be used for?” At this moment, our good friend Mr. FBAR made a “Cameo Appearance” at the hearing. As you know:
Taxes are under Title 26 of the laws of the United States.
FBAR is under Title 31 of the laws of the United States.
It was as though the lawyers, the judge and the audience had their collective “OMG” moment. The thought appeared to be:
Could it be true, yes could it be true, that the forced disclosure of the banking information of those “accused of being U.S. citizens”, could be used to impose FBAR penalties? Could this really be true? Well, Jonathan Lachowitz notes that this very week, the United States reaffirmed its commitment to Mr. FBAR”. (And moving back to FATCA, see also Mr. Lachowitz’s recent article and comments on the proposed FATCA SCE (Same Country Exemption).
Or to put the question more generally:
Question: Could the information disclosed under the Canada U.S. Tax Treaty (which would now include the FATCA IGA) be used for purposes beyond “Taxes on Income and Capital”?
Answer: Yes, in fact former Senator Carl Levin, in a letter written to the IRS on January 11, 2012 urges the IRS and Treasury to use “FATCA” information for all purposes. Yes, it’s true. Here is the letter:
CarlLevin
This was reported at the Maple Sandbox Blog, which notes the following excerpt from Senator Levin’s letter:
Although FATCA is structured to address offshore tax abuse, offshore account information has significance far beyond the tax context, affecting cases involving money laundering, drug trafficking, terrorist financing, acts of corruption, financial fraud, and many other legal violations and crimes. Given the importance of offshore account disclosures, FATCA guidance and implementing rule should create account FATCA forms that are not designated as tax return information but, like FBARs, may be provided to law enforcement, regulatory, and national security communities upon request. FFIs are not, after all, U.S. taxpayers, and will not be supplying tax information on behalf of their U.S. clients; they will instead be providing information about accounts opened by U.S. persons. The U.S. Supreme Court has long held that bank account information is not inherently confidential but is subject to inspection by law enforcement and others in appropriate circumstances. Foreign account information is too important to a wide range of civil and criminal law enforcement and national security efforts to be designated as tax return information bound by Section 6103’s severe restrictions on access.
Justice Martineau (without knowing about Senator Levin) asked the reasonable question:
Would the use of FATCA disclosed information for purposes beyond “Taxes on Income and Capital” be a breach of the IGA agreement?!!!
This is a fascinating problem.
In other words – a possible U.S. Government breach of the FATCA IGA:
Assume that the FATCA induced information “may be relevant” to “Taxes on Income and Capital”; but that
The information is actually used to assess FBAR penalties (which are outside Title 26)
Is the use of the FATCA information to assess FBAR penalties outside the scope of the IGA and therefore a breach of the U.S. Canada IGA?
Justice Martineau asked the Government lawyer this very question, to which the Government lawyers responded with (you can’t make this up):
“Justice, I feel sorry for you having to resolve this issue.”
In conclusion …
The most important thing about the ADCS-ADSC.ca “Summary Trial” is that it happened. It is continuing. It is a true milestone. It is my hope that it will motivate people in other countries to organize their own lawsuits. It sends a strong message. It has reminded the Government of Canada (and I hope) governments around the world that:
if governments do NOT protect their citizens from outside forces, that those citizens must and will protect themselves from their governments

I am perplexed about why the lawyers and the audience had an OMG moment at the judge’s question. I have believed all along the information will be used for purposes other than taxes–as per Levin’s demands. I think anyone who has been following this would think the same.
UPDATED August 8, 2015
From John’s Morning After Hangover

The “Summary Trial” hangover – Friday morning August 7/15
Yup my head hurts. I have a splitting headache. I don’t feel well. I can’ eat. I am not going to be able to work today. But, my “hangover” is not from too much alcohol. It’s from listening to and thinking about too much law. Too many statutes. Too many stupid arguments. Too much “splitting hairs”. Too many poorly written statutes. Too much uncertainty over what statue applies to who and when. It’s just too much. But, that’s what law is and what legal arguments are about.
This week I sat with about 20 people in a courtroom in Vancouver listening to a bunch of high priced lawyers and a judge (largely through written statements) talk about and try to apply law. I’m not even sure what I was doing there or what events in my life brought me there. After all, I was 1 of about 20. (There may be a reason there were only 20 people there.)
It begins in August 1977
So, in August 1977 I was just about to start law school. (It’s true. My classmates were Archimedes and Plato. Both passed law school.) I wanted to become a lawyer. I had respect for law. I clearly assumed that somehow law reflected standards of basic morality. During that time (like most law students) I was interested in ONLY what the law was and how it could be used. I didn’t care: how it was made, the values it reflected. I certainly didn’t appreciate how law (although in some cases a force of good) could be used to institutionalize evil. I had never thought about politics and how laws were made. It never occurred to me that in many cases, laws were made because people could help themselves by hurting others (the Canadian banks come to mind). Of course, I didn’t know anything about “place of birth taxation” and couldn’t have anticipated FATCA.
What law schools don’t teach …
A. The nature of the law making process
Government is by definition “force”. Political systems are NOT defined by WHETHER government is force. Rather they are defined by “WHO” exercises the force of government. In a democracy the coercive force of government is exercised (at least in theory) by democratically elected representatives. Of course (and we are seeing this today in Canada) a majority will use its majority to forcibly impose its will on a minority. (It’s the forcible imposition of the majority will on the minority that is the reason that we have a Charter of Rights.)
B. What law is
Law (at least statute) is a forceful legislative expression of the the objectives of governments. Once the law is made, the reasons for the law are no longer considered. The debate (if there ever was one) is over. What matters is:
“It’s the law.”
C. The effect of “It’s the law” or “There otta be a law”
Once a government makes a law the “issue is settled”. For example, lawyers will say: there’s no reason to discuss “citizenship taxation”. It’s the law. Canadian laws to facilitate FATCA have been made. FATCA is the law.
To put it another way, a way to stop discussion of a topic is often to pass a law. Once the law has been passed, what else is there to discuss? Furthermore, the framework of a law necessarily defines how any discussion of the law is to take place. The principles underlying the law are almost never discussed.
For example
Consider the following law:
“All U.S. persons in Canada must obey all U.S. laws.”
Prior to this law being enacted, there may be some discussion about whether the U.S. should have the right to control Canadian residents. People may or may not express their views on this issue. They may ask, “is this good policy”? If it is “good policy”, is it sufficiently important that “there otta be a law”.
Once, the law has been enacted, there is NO longer discussion about whether the law is a good idea. The terms of the law clarify that the only thing that matters is whether someone is a “U.S. person”.
Therefore, the passing of a law could be (and often is) a “diversionary tactic” to obscure the real issues. Laws operate to prescribe the terms of the discussion. Nowhere was this more apparent than in the “Summary Trial” on August 4 and 5, 2015.
What I witnessed on August 4 and 5 2015 would be described to a non-lawyer as follows …
What I saw (I think) was:
The Government of Canada, was spending money belonging to Canadian taxpayers to defend it’s “God Given” right to, to trade one million Canadian citizens into “U.S. Tax Slavery” in return for the United States to NOT attack Canada’s banks. Oh, and the Government of Canada is also agreeing to let the U.S. come back every year with new criteria for deciding which Canadian citizens they want to make U.S. taxpayers.
I have no doubt that this characterization will offend a certain “calibre of mind”, but I challenge you to identify a single word of this characterization that is incorrect.
The growing disconnect between law and morality …
The above tweet references an excellent post at the Isaac Brock Society.
We have entered a world where:
All laws have legal force, but only some laws have moral force.
What strikes me as I endure my “law induced” hangover is:
1. how the legal arguments at the Vancouver “Summary Trial” obscured an accurate characterization of what was really going on (see above); and
2. Obscured the truly evil intent of FATCA, CBT, FBAR, etc.
(To be clear, Justice Martineau – in a “breath of fresh judicial air” – did try to understand these issues. The Government lawyer did NOT want to discuss “what was really going on”. The Government lawyer’s main argument was” “It’s the law.”)*
But, hang in I maintain that we will win:
Today the Government of Canada is hiding behind “It’s the law” – but we will win because …
It’s very simple. At the end of the day, FATCA, CBT, FBAR, etc. are moral issues. They are just plain wrong. They trample the human spirit and impede human progress.
Don’t think about law and drive!
John Richardson
*Trish Moon in a comment to an earlier post, notes that:
I don’t think anyone should have the impression that anyone could possibly understand the issues as well as expats-so the OMG moment was more about the lawyers and the judge. Justice Martineau was truly impressive. He asked such relevant questions-and my impression was that he was not terribly thrilled with the defendants’ lawyer. I did not come away from this with any idea that J. Martineau fell for the idea that the IGA was a great deal for Canada. This would be hard to convey but he was affected by our presence in the courtroom. He got that this was about people – Canadians. I don’t mean he had a bias but more like he seemed to sense the big picture in spite of the nitpicking about whether the IGA was a treaty, how to read the Treaty, etc…
‹ @ADCSovereignty reaches “milestone” – End of #FATCA summary trial means the “End of the beginning”

"Arvay is Legal Craftsman Extraordinaire" says Ginny

As many of us are on pins and needles awaiting legal proceedings to begin in Vancouver today, I thought it might help if you see what Ginny says about Joe Arvay’s Reply Argument. I am posting Ginny`s commnents with her permission.

Seriously, this is the best example of current pleadings
Joseph ArvayI have ever read in my legal life. Brilliant, succinct and nailed it.
Arvay just told the court in one great paragraph (#10) Gwen’s and my entire case.
Every law school in Canada will among other things, have every law student reading these pleadings. Magnificent.
Arvay is a legal craftsman extraordinare.
I can’t wait to discuss this with my law professor friends. I know, you must think I am crazy to get so much delight from this aspect, but this is law at its finest and purest.
This is the part that I truly love. I would be the worst fund raiser in the world, couldn’t ever ask a person for a penny.
But this part? This is so wonderful. I envy you who will be there to hear this in person. Joe has set the bar so high. Worth every penny of his team’s legal fees. Every penny.

Ginny is a retired lawyer so I really value her opinion on this.
You go Joe!
This helps me to get a good night’s sleep.

Today's The Day

It’s tough to stay calm. Today’s the day.
Today is finally Toay's The Dayour first day in court. Hopefully. If the judge does not grant the injunction that the feds will be seeking.
I have asked Stephen to update me. I will post the information I receive.
As most of us know, this is for the Summary Trial to deal with Income Tax Act and Income Tax Treaty issues. It is not to deal with constitutional or Charter issues. We do not have a date schedulded for that.
The fact Vancouver is three hours behind where I am and that they will not be in court until afternoon my time makes this even more nerve wracking!
I need to take my own advice. Stay calm.