Tag Archives: Peter W. Hogg

Tax Notes Article: FATCA and Canadian Charter

The following article appeared in Tax Notes.  I now have received copyright approval for a one-time post at Maple Sandbox.

The article was written by Kristin A Parillo and published by Tax Analysts.

It mentions “anti-FATCA crusaders,” Maple Sandbox, Isaac Brock Society and  Elizabeth May/Green Party.   In addition, the article includes a comment from “a person named Blaze” on Nigel Green’s blog.

The article quotes two Canadian lawyers who disagree with Peter Hogg’s opinion on the Charter implications of a FATCA IGA. However, Mr. Hogg is Canada’s leading constitutional scholar.  The other two lawyers are privacy and security lawyers. On constitutional matters, I think the opinion of a prominent constitutional lawyer who has advised and represented the government on constitutional matters is likely to be more valid.

I will post some personal comments and responses as a reply.

Here is the full content of the article. It is my understanding this cannot be published elsewhere without copyright approval from the publisher and author.

Could A FATCA Agreement Be Vulnerable To A Canadian Constitutional Challenge 

Tax Notes International, June 10, 2013.

Kristen A. Parillo examines a December 2012 letter sent by Canadian constitutional expert Peter W. Hogg to the Canadian Department of Finance, in which Hogg questioned the constitutionality of a possible intergovernmental agreement to implement the U.S. Foreign Account Tax Compliance Act.

 

It may seem unthinkable to some that Canada — the U.S.’s largest trading partner — wouldn’t enter into an intergovernmental agreement with the United States to implement the U.S. Foreign Account Tax Compliance Act. However, a letter from Canada’s leading constitutional scholar to the Canadian Department of Finance questioning the constitutionality of a possible IGA has given hope to some Canadian anti-FATCA crusaders that such a scenario could happen.

The U.S. government’s recent crackdown on offshore tax evasion has unsettled many Canadians, particularly the dual Canadian-U.S. citizens residing in Canada (estimated at about 1 million) who didn’t realize they still had to file U.S. tax returns and foreign bank account reports. Following the 2010 enactment of FATCA and subsequent dialogue between the U.S. Treasury Department, the IRS, and stakeholders on the best way to implement the new reporting and withholding rules, many Canadian individuals and financial institutions expressed concerns about FATCA’s extraterritorial reach and the enormous costs of enforcing the new rules.

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