Seeking a Few Additional Witnesses Willing to File Affidavit for Canadian FATCA IGA Lawsuit

The May 31 2017 Canada Federal Court Order gives us 60 days to comply by providing additional information to Government as part of our lawsuit.

This delay may give us time to provide to the Court additional evidence of harms caused by the Canadian FATCA IGA enabling legislation.

— If you are a Canadian citizen and resident who the U.S. deems a U.S. citizen, and you would like to renounce your U.S. citizenship and tax citizenship, but cannot because you would have to pay a U.S. “exit tax” because of the value of your assets (see link) — or you renounced and DID pay an exit tax; or

— If you are a Canadian citizen and resident and a U.S. citizen who had your bank account information turned over to CRA/IRS and the U.S. IRS has now contacted you about your account.

AND you are willing to provide a written, public (your name will be disclosed) affidavit to Canada Federal Court explaining your situation,

- please contact me at Stephen.Kish.Chair@adcs-adsc.ca

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May 31 2017 Canadian FATCA IGA lawsuit update: Plaintiffs ordered by Federal Court to turn over more detailed financial records to Government

As part of our FATCA IGA litigation in Canada’s Federal Court, Our three Plaintiffs previously provided financial information to the Government lawyers on their accounts. However, Government submitted a motion to compel Plaintiffs to provide additional very detailed financial information.

Our litigators felt that this request was unnecessary and unreasonable — and resisted the motion; however, the Case Management Judge sided with Government and ordered today, on May 31 2017, Plaintiffs to provide further documents.

Plaintiff Gwen responds to court order: “If the nosy-ass government hacks feel that they will find something that they didn’t know before, they will be sorely disappointed and this changes nothing other than to piss us off even more…”

Plaintiff Ginny comments: “I am disappointed with the decision that permits the government to invade our privacy in further minutia. This power play demonstrates to me that the government has no respect for privacy principles and will do everything possible to uphold their decision to support FATCA, and the importation of US law into our sovereign nation.

Their choice to ask for costs is another clear warning to discourage any citizens wishing to challenge unjust legislation. However, the three of us remain undeterred in seeking justice for all of us affected. Once again, I rely on my family motto: don’t let the bastards get you down.”

Plaintiff Kazia says: “Although I am disappointed with this outcome, I am hopeful that these next steps, however uncomfortable, will get us even closer to ultimately achieving a positive resolution in our favour. We will stand up for what is right.”

The documents that now must be turned over are:

Every document that reveals the nature and content of the following financial vehicles that the plaintiffs currently hold, or held after January 1, 2014 (domestically or otherwise):

o All bank accounts

o All mutual funds

o All brokerage and investment accounts, and

o All insurance accounts or plans that have cash value, such as life insurance contracts or annuities (including but not limited to whole and/or universal life coverage, etc.)

- With respect to the 2014 and 2015 taxation years:

o Filed T1 tax returns

o T2 tax returns in respect of any businesses that the plaintiffs own or control, and

o Any related documentation, slips or schedules

The Court also requested more “particulars” on the Claim.

These include:

Each type of physical harm the Plaintiffs allege as been suffered; or will for certain be suffered if the impugned provisions remain operational by any one of them or by anyone else, as a result of the impugned provisions;

All mental or psychological harm the Plaintiffs allege has been suffered; or will for certain be suffered if the impugned provisions remain operational; by any one of them or by anyone else, as a result of the impugned provisions;

All financial harm, loss, or damage that the Plaintiffs allege has been incurred; or will for certain be incurred; by any one of them or by anyone else, as a result of the impugned provisions.

In addition, Court ordered Plaintiffs to pay $2500 in costs for the motion.

Plaintiffs do not have to pay these costs if we ultimately win the court challenge; however this order emphasizes again the personal financial risks Plaintiffs have undertaken on behalf of Canada and Canadians.

The Court has given Plaintiffs 60 days to provide the information and ordered that Government complete examinations for discovery within 45 days of the latter.

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May 15 2017 Response of some Witnesses [Including those of FATCA supporter Elise Bean] to U.S. House Subcommittee with recommendations to “improve legal framework” of FATCA

[I now include in this LINK the recommendations of Elise Bean, a long-time FATCA supporter and witness at the FATCA hearing.]

On April 26 2017 there was a Hearing at the U.S. House Subcommittee on Government Operations dealing with the harm caused by the U.S. FATCA law imposed on the world.

At the conclusion of the hearing, Chairman Meadows asked the Witnesses for “three recommendations on how to improve the legal framework set up by the Foreign Account Tax Compliance Act” (FATCA).

My personal-only interpretation of this request is that the Chair is saying something like: “If FATCA has to be replaced with something else, can you recommend three compromise laws/approaches that would achieve the “good” aims of FATCA but minimize the harm, and which would receive bipartisan support?”

— I enclose as a link the May 15, 2017 submitted personal recommendations of Jim Bopp, a witness and attorney for the U.S. FATCA/IGA/FBAR lawsuit currently pending in United States Court of Appeals for the Sixth Circuit (I am one of the plaintiffs).

From the Bopp text:

“This letter provides three recommendations on how to improve the legal framework set up by the Foreign Account Tax Compliance Act (“FATCA”).

First, we recommend that any taxation of overseas Americans comply with established United States constitutional principles and international legal norms.

Second, we recommend that the current laws be repealed in their entirety [Bopp goes on to include specifically FATCA, IGAs, FBAR, and citizenship-based taxation] and certain proposals rejected.

Third, we recommend that Congress enact a 1099 requirement on foreign banks, established by treaty, as long as this complies with established United States constitutional principles and international legal norms…”

—- Appended to the end of the Bopp recommendations are my personal thoughts as a separate submission: I support, as does Mr. Bopp, the repeal in entirety of FATCA, FBAR, IGAs, and citizenship-based taxation (the latter to be replaced with territorial/residence-based taxation), do not support any “watered-down” FATCA-replacement legislation whatsoever — which I believe will continue the harm, and offer suggestions on changing U.S. citizenship laws in the very limited context of FATCA harm. In hindsight, I now feel that I should have gone further in my recommendations for citizenship law changes.

—- When I receive the recommendations of strong FATCA supporter Elise Bean, a hearing witness, I will post.

Ongoing developments: Republicans Overseas has initiated an intensive lobbying campaign with Congress to kill citizenship-based taxation and replace with territorial taxation. There can be no promise of success, but these people are trying. I am not aware of similar efforts on the Democrat side.

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May 13, 2017 Canadian Federal Court FATCA IGA lawsuit update: Motion for Summary Trial now submitted

“…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…” June 2015 Pre-Election statement of Mr. Justin Trudeau (now Prime Minister of the Government we are suing) to a constituent

May 13 2017 Canadian FATCA Litigation Update:

SUMMARY TRIAL MOTION has now been submitted on Constitutional/Charter issues. We are finally moving closer to trial and our Vancouver litigators have now served and filed in Canada’s Federal Court a “Notice of Motion for Summary Trial”.

As detailed in this brief motion (see link) this is a pleading to the Federal Court of Canada for a summary judgement we are seeking on the Constitutional-Charter issues.

We argue in the motion that the Canadian legislation enabling the FATCA Intergovernmental Agreement (IGA) violates Canada’s Constitution Act (by forfeiting Canada’s sovereignty and facilitating the extra-territorial enforcement of a foreign state’s taxation and tax compliance regime on Canadians) and Canada’s Charter of Rights and Freedoms (Sections 7, 8, and 15).

There is this statement in the Motion:

“The contours of United States citizenship and the definition of US Person are matters of United States law and/or policy and are subject to be changed by the United States at any time.”

There is also this:

“It is a principle of international law that every sovereign state has the right to conduct its affairs without intervention by other states (the “Principle of Non-Intervention”). The Principle of Non-Intervention is at the core of the international legal order and is a corollary of every state’s right to sovereignty, territorial integrity and political Independence. The Principle of Non-Intervention is an element of the unwritten constitution.”

Will the Federal Court of Canada accept this Constitutional argument?

This motion is NOT the main, detailed legal submission (i.e., where all of the case law is discussed, etc.) which will be filed much closer to the hearing date (yet to be decided).

AFFIDAVITS. You will notice on pages 22-23 a long list of affidavit titles. Because of a technical issue related to the litigation, it is not possible to publish the text of these affidavits at the present time.

Some of the affidavits include those we previously submitted and those Government submitted – which we feel will help our case.

There are also expert reports from three witnesses (Ryan Liss, Roy Berg, Kevyn Nightingale) who were selected by our litigators to provide an expert opinion based on our litigators’ assessment of their expertise and experience.

In addition, there are affidavits listed from lay witnesses.

Our litigators made a strategic decision on the selection of specific lay witnesses for the trial from the larger group of volunteers. I thank the lay witnesses and all witness volunteers for their courage and commitment to push for return of Canada to Canadians.

LIKELY NEXT STEPS. On May 19, 2017 there will be a teleconference with Government, Case Management Judge, and our side to deal with the Government Motion to compel further documents from the three plaintiffs (we oppose the motion).

After the ruling, Examinations for Discovery of the three expert witnesses and the plaintiffs will be scheduled and conducted. Our lawyers will likewise examine the Attorney General’s witnesses. It is also possible that the Attorney General might examine our lay witnesses. We currently do not know if they will elect to do so.

Upon completion of the all examinations of the parties, and after filing all required submissions, we will await a trial date to be set by the court. Trial dates are dependent on the availability of Justices and court (backlog) schedules.

I know that the slow pace of our litigation is frustrating. Thank you for your continued support and kind thoughts.

Stephen Kish

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FEBRUARY 13 2017 UPDATE ON CANADIAN FATCA IGA LEGISLATION LAWSUIT IN CANADA FEDERAL COURT: Government response to request for details on FATCA accounts turned over to IRS and CRA

Still expecting that the Constitutional-Charter trial will take place in 2017. Date however, still uncertain and will depend on how Motions are decided by the Court.

— The Government lawyers have now asked the Court, by way of a formal motion, to compel the Plaintiffs to provide certain additional documents and our lawyers will be resisting the motion. Will keep you updated on how this is resolved.

— See the (amended) Claims of the Plaintiffs and the now published as affidavit last response of Government to the Claims.

Note the changes (underlined) from original response on page 137 (14) in which Government denies Constitutional violations and now argues that “To determine whether any Charter rights or constitutional principles, written or unwritten, have been infringed unjustifiably by such alleged enforcement requires a factual matrix where the US has actually attempted to recover, in Canada, taxes or charges against a particular individual residing in Canada.”

Note also that Government has now DELETED on page 139 (16) its previous statement: “Furthermore, the defendants deny that there exists a principle of fundamental justice that foreign tax debts are not enforceable in Canada.”

— See the many questions asked by Plaintiffs to Government detailing the type etc. of FATCA information provided by Canada to United States and by U.S. to Canada, response of Government, and Objections raised by Government to Plaintiffs’ question.

I was particularly interested in knowing details on the bank account information that flowed from Canadian accounts in U.S. to Canada as part of the so-called “reciprocal” FATCA agreement — a key justification, in addition to promise of economic sanction for non-compliance, for Canada to “agree” to the FATCA IGA.

Government response to the request for information on the reciprocal bank data are: “On the advice of counsel. I am unable to answer” with the attached objection: “The Defendants object to Q. #4 and refuse to answer it because doing so may require disclosing sensitive information or potentially injurious information as those terms are defined in s. 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5.”

[Also, I wanted to know: "...how many of the persons associated with those accounts had already been reported by the United States to Canada for tax purposes...? See the answer in link to this question...]

Still seeking Exit tax witness. Supporter suggests (and I agree) that anyone who took measures to reduce asset worth to avoid exit tax would be considered…

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