We Did Not Win the First Round

Justice Luc Martineau has delivered his Decision in the Summary Trial.

i have not read it thoroughly yet, but this indicates information may be transmitted because Justice Martineau has ruled FATCA does not violate the Income Tax Treaty.

Significantly:

[9] I have concluded that the collection and automatic disclosure of account holder information about US reportable accounts (see paragraphs 28 to 34 below) contemplated by Articles 2 and 3 of the IGA is legally authorized in Canada by the provisions of the IGA Implementation Act and Part XVIII of the ITA. Moreover, contrary to the assertions made by the plaintiffs, I find that the collection and automatic disclosure of any such information is not inconsistent with the provisions of the Canada-US Tax Treaty, and does not otherwise violate section 241 of the ITA. Basically, I endorse the general reasoning and the legal arguments submitted by the defendants in their written submissions and reasserted at the hearing by counsel.

Fortunately, he did not award costs to the government so Ginny and Gwen are not responsible for those.

77] For all these reasons, the declaratory and injunctive relief requested by the plaintiffs in their motion for summary judgment shall be denied by the Court, without prejudice to the plaintiffs’ right to pursue their claim that the impugned provisions are ultra vires or inoperative because they are unconstitutional or otherwise unjustifiably infringe Charter rights. There shall be no costs. This is a case where, in view of the nature of the issues and the public interest involved in clarifying the scope of novel provisions affecting hundreds of thousands of Canadian citizens, no costs should be ordered against the losing parties.

Please note, this is a decision on the Summary Trial involving the Income Tax Act and Income Tax Treaty issues and not on the Charter and constitutional issues.

The fight continues……

UPDATE September 17, 2015: I have read the decision a bit more thoroughly. My non-lawyer sense of it is Justice Martineau agrees with Canadian Parliament that “Congress has spoken.”

ADCS Directors are considering options. I think Stephen will post further information as things progress.

4 thoughts on “We Did Not Win the First Round

  1. This ruling is not surprising in the least and I would anticipate a similar ruling, in favor of the defendants, in the U.S. court case seeking injunction as well. The U.S. has too much at stake in FATCA, as the costs to implement it worldwide have and will exceed $8 billion dollars! They will fight hard against any attempt to alter FATCA and expose themselves to ridicule and certain attempts of international banks to recover the vast sums already invested to comply, should FATCA be overturned. Yes, FATCA is unjust, discriminatory and immoral, but the U.S. today is an unjust, discriminatory and immoral nation, not only as relates to FATCA, but a place where the average citizen has little, if any, rights and protection under many of the laws that were once the bedrock of its “democracy”. The Fourth Amendment was enacted to protect the citizen against any unreasonable searches and seizures of his property and effects, without reasonable cause. This pillar of democracy is now ignored in the U.S. on a near daily basis, so why would anyone expect it to be respected as regards FATCA?
    Sadly, the best thing that should be done without delay, for those who have not done it yet, or who have held on to the naive hope that democracy and respect for past laws and privacy would prevail, is to renounce their toxic U.S. citizenship as quickly as possible. The situation will only get worse for US expats and it may soon become even more expensive and legally perilous to renounce and escape from the oppressive system that has taken hold over there.
    Yes, this is all very unfortunate and distressing, but to continue to hold on to the naive belief that “democracy will prevail” is now dangerous. The U.S. is no longer a democracy and that was even confirmed by Princeton University. News of this study was published all over the world, but curiously not in the U.S. Here are the links to this sad revelation, one in the BBC and the other in The Telegraph:
    http://www.bbc.com/news/blogs-echochambers-27074746
    http://www.telegraph.co.uk/news/worldnews/northamerica/usa/10769041/The-US-is-an-oligarchy-study-concludes.html

  2. We should ask all political party to change the guideline where FInancial institution use the Bank of Canada exchange rate to determine total in USA dollars, Currently FI could use only total C$. I think it would be helpful if we ask that you can prevent internet searches on your own name. This is done in Europe. These are small realistic goals that all major parties can agree to, I do not think for a moment that the NDP will destroy our economy so that some dual citizen do not want to renounce.

  3. I read some, but not all yet, of the 46 pages of Judgement and Reasons. Very disappointing. We have to keep moving forward, likely on to the Supreme Court. Sounds like a long and expensive road. Anyone who can possibly renounce and hasn’t yet needs to seriously consider moving forward with the process. Of course keeping in mind form 8854 and tax filing issues if you might ever need to cross the US border. In the meantime, move your funds into a credit union like Vancity, Local Client Based. US citizenship, the most toxic citizenship in the world. Ugh.

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