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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Seeking Canadian Witness for Canadian FATCA IGA Lawsuit Who Has Renounced and Paid U.S. “Exit Tax”

Are you a Canadian citizen and resident and have you renounced U.S. citizenship and have paid or are subject to the U.S. Exit Tax (IRS 877A)? [No, I do not mean the $2350 fee.]

If so, we ask you to consider being a Witness in our Canadian FATCA IGA lawsuit.

You might have renounced U.S, citizenship but own a now valuable house in Toronto/Vancouver/London etc. and have (because interest rates are now very low) a very valuable pension — and had to pay a U.S. exit tax.

Information on the exit tax and examples of the exit tax can be found at the citizenshipsolutions.ca site.

We are specifically seeking as a possible Witness in our Canadian FATCA IGA lawsuit a person who:

Has renounced and has paid an exit tax (the ideal witness);

– Has renounced and will be subject to exit tax;

– Is intending to renounce and know that they will have to pay exit tax; and

– Cannot afford to renounce because they have no way of paying the exit tax

Again, the person likely affected will be one who happens to own a now valuable home in Vancouver etc. that has appreciated markedly over the years and a company pension for which the cashed out value of the entire pension (NOT the monthly distribution) is sizable. Typically, only the pension company can accurately calculate the value of your pension.

The U.S. demands in the exit tax a percentage of your Canadian-made assets as punishment for renouncing.

If interested, email me at: Stephen.Kish.Chair@adcs-adsc.ca

Your name and situation will be made public in a submission to the Federal Court of Canada.

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December 22 2016 Update on Canadian FATCA IGA lawsuit — Moving closer to the Charter-Constitutional trial

This is a new update with some timelines from the Canadian Federal Court showing what has to be done before we know the Charter-Constitutional trial date (taking place next year). In part, there will be motions and responses related to differences of opinions as to what documents and information have to be provided prior to trial:

Order dated 22-DEC-2016 rendered by Roger Lafrenière, Esq., Prothonotary Matter considered with personal appearance

The Court’s decision is with regard to Case Management Conference [recently held by the parties to move the litigation forward]


Court Orders:

1. D [The Defendants --- Attorney General and Revenue Minister] are granted leave to s/f [serve/file] their motion in writing for production of documents and particulars.

2. P [The Plaintiffs --- Kazia, Ginny, and Gwen] shall s/f their responding motion record within 28 days from the date of service of the D motion referred to in paragraph 1 above

3. P are granted leave to bring their motion for summary trial [the Charter-Constitutional trial]. P are dispensed from s/f a motion record at this stage and shall instead s/f a notice of motion and contemporaneously serve their affidavit evidence [e.g. testimonies from our Witnesses and Expert Witnesses].

4. The timeline for the D to file a response to the P motion for summary trial is suspended until further order

5. Any further affs, docs, or particulars, and anything else req’d by any order resulting from the D’s motion referred to in para 1 above shall be produced by the Ps to the Ds within 30 days of such order

6. The parties shall make best efforts to schedule the Ds examinations for discovery of the Ps within 45 days of satisfaction of the requirements, if any, described in para 5 above

7. The parties shall requisition a CMC [Case Management Conference] as soon as possible following completion of the steps set out in para 5 and 6 above in order to, among other things: A) fix a timetable for completion of the steps leading to the hearing of the P motion for summary trial; and B) schedule the hearing of the P motion for summary trial.

Filed on 22-DEC-2016 copies sent to parties”

Sorry again for the slow pace.

Stephen Kish

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We are ESPECIALLY seeking as witnesses Canadians, who the U.S. deems U.S. citizens, who have a “REPORTABLE” (e.g., non-RRSP) account > US $50,000 and who:

— are IRS non-compliant, have no meaningful ties to or history with the United States other than by birth or parentage, never relinquished U.S. citizenship, and have a FATCA reportable account;

— are IRS non-compliant, have a reportable account, and have assets >$US2,000,000 — and might have to pay an exit tax to renounce U.S. citizenship;

— have experienced severe emotional stress/marriage breakup/post-traumatic stress etc. because of the Canadian FATCA compliance law, preferably has a reportable account; and

— have experienced any other significant “FATCA” harm not mentioned above.

If you are interested in volunteering as a witness, please contact me at stephen.kish.chair@adcs-adsc.ca

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Many of you feel that all it takes to win our Canadian FATCA lawsuit will be for our litigators to argue the merits of the case — that the Liberal Government’s justification (U.S. economic sanction) for taking away your Charter rights and the sovereignty of your country is so obviously wrong — that the Federal Court Justice has no choice but to declare the Canada FATCA compliance law a violation of our Charter.

Our litigators, who have experience up to the Canadian Supreme Court level, feel that to give us the best chance of success, we need Canadian witnesses who will provide real-life examples of different FATCA harms.

None of us, including especially our International Supporters who have a stake in the Canadian litigation outcome, want our lawsuit to fail because we could not find the necessary witnesses in Canada.

You can help by being a Canadian Witness who has experienced emotional, social, employment, financial, or other harm caused by FATCA and who will describe your harm in an affidavit in Federal Court. Your affidavit and your name will be made public.

For example (just one of many examples): We are seeking a witness who has a reportable (non-RRSP) account >US$50,000 who has received a “FATCA letter” from the bank. The person might never have had any meaningful relationship with the United States other than being born in the U.S. Perhaps you are even a “border baby” living in Stanstead Quebec. You may have sought advice from a tax professional who advised you that the cost of IRS compliance (accountant costs, etc.) will be a significant portion of your assets — what you had planned to live on for your retirement. Like any human confronted with a vicious assault, you experienced emotional stress. Perhaps you now decided that you will not pay one Canadian penny to the tax consultant, U.S. IRS, or U.S. Department of State (to “renounce” what was imposed on you without your consent) because to do so would be unreasonable. Your emotions have now moved from “terror and tears” when you first discovered that Canada — your own country — actually passed a law that would turn you, a Canadian citizen, over to a foreign government, to the fullest appreciation that “I am a Canadian. Period.” — and you can now get through the day. You are ready to be a witness.

— If interested in being a Witness please contact me at stephen.kish.chair@adcs-adsc.ca I know that only a handful of people reading this post will volunteer to be a witness. Could those who will never volunteer please seek out others who might be willing to go public with their harm?

Could some of you who are experts in using social media ask for witnesses for our lawsuit? I can’t do this alone and Brock and Sandbox will reach only some readers. I am even considering asking for some donations from supporters willing to pay for an (expensive) ad requesting witnesses in a major Canadian newspaper. Please help make your litigation a success.

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