The elephant In the room

A recent information session was held for members of the Canadian investment industry to discuss the impact and implications of a Canadian IGA on the industry. Most of the session was technical in nature, being devoted to what may be described as “back office operations” and the relationships between Introducing and carrying brokers. However there was a general update on the status of the Canada IGA and what to expect. In the notes below, the Canadian investment industry is referred to as “industry” and individual firms are referred to as CFI.
Please note that this posting may be updated if and when new information is received.
Industry does not know when the IGA will be signed. Expectations are for signing by the end of 2013 and definitely no later than mid-March, 2014.
After signing, the IGA will be presented to cabinet for approval. 
CRA has suggested to industry that, in the meantime, the Model 1 IGA and UK guidance may be used as a template. However, there will be differences due to different Canadian laws, regulations, procedures and structures. 
Industry expects the guidance issued by CRA to be “slimmer’ than the UK guidance. Many details will have to be worked out after the first guidance is released. 
The 30% withholding on recalcitrant accounts is being eliminated. Instead, information on those accounts will be forwarded to CRA along with accounts with confirmed U.S. indicia. 
Self certification is left to each CFI and likely will not differ greatly from existing KYC/AML procedures. However self certification must address U.S. citizenship and tax residency. 
Most registered accounts will be excluded. It is not known for sure, just yet, which ones they will be. Expectations are strong that RRSPs, RESPs and TFSAs will be among the excluded accounts. 
No accounts will be closed. 
Issues with customers with U.S. indicia was described as “the elephant in the room” 
I have a few comments—
Industry expressed frustration over the lack of details they have been given so far. I would guess that actual implementation of the IGA may be delayed for some time as the kinks are worked out.
I found it interesting that there was no mention of Parliamentary approval, just cabinet approval.
This session took place just a few days after the Ottawa press conference and the 2 person protest. Mention was made of Flaherty’s remarks and the G&M article. I had the impression (my opinion only) that the comments to the G&M article were noticed, as well as comments posted elsewhere.
While our focus has been primarily on government, the entire Canadian financial industry should be made aware of our concerns. So, keep those cards and letters (comments and emails) coming.

54 thoughts on “The elephant In the room

  1. It is going to be very difficult for banks to know what the rules are supposed to be without learning U.S. tax code. For instance, I’m allowed Christmas gifts etc. from the U.S. They are usually checks as it’s less expensive to mail. So when I go to deposit them there will be “U.S. indica” since they come from my family in the U.S. However, I don’t think I have to report “gifts” below a certain dollar amount but, those will be reported to CRA anyway?
    It’s tiny details like that and I assume the banks don’t want to deal with it so anyone with ANY U.S. indica will have their account handed off to CRA letting the banks off the hook.
    Then there is still the sticky issue that even though no accounts would be closed, you still are being treated differently as a customer if you have U.S. indica as opposed to those who do not. It’s just going to be a pain and despite what Canadian Bankers Association said to me today I don’t think I’ll ever feel the same about my personal banker as I used to. When it came down to the wall, they wanted their posterior covered before mine.
    So Canada is getting some minor adjustments but, not much really. Any IGA at all is an affront. CBA has told me today they do not want this, the citizens don’t want it and Flaherty has said he didn’t want it so why are we doing it?

    1. @atticussinCanada
      ‘CBA has told me today they do not want this, the citizens don’t want it and Flaherty has said he didn’t want it, so why are they doing it?’
      Because money talks! The big Canadian banks are not about to give up their Right to do business with the U.S. yes, we might be the electorate, and we might be tax payers but believe me, our government is not going to see the big 5 banks get barred from the U.S. our government might be working to make all of this more palatable but they will cave in the end.
      It is the reason I filed for my back-dated CLN. I have lays believed whe push came to shove, U.S. persons in Canada would be shoved under the bus.

    2. @Atticus,
      It is my understanding that the US indicia searching will only apply to accounts of $50k plus. I don’t think the situation you describe is going to come up.

  2. Something else that is really bothering me is that for very low income people there is no way a raising of bank rates isn’t going to really hurt. There’s also no way our banks can comply with FATCA and not raise our rates. People on assistance with kids, retired folks with very little just barely making it..that’s who I am worried about. For my mother in law an extra twenty dollars was half a weeks groceries. I’m not even kidding she was that frugal. It scared her not to be. So how are these people in such a tight situation going to pay these higher rates?
    @Tim, yes. There’s really nothing to add to what you said. It’s no wonder we’d end up feeling this way.

    1. I decided to delete my comment however, you clearly saw it and got the message. I was so angry when I first read this post that I soaked through all my clothes in sweat and had to shower. Once I got out a few minutes ago I decided to take down my comment not to be seen as a completely crazy person by some newcomer visiting the site for the first time.

  3. @Tiger, I have appt. to renounce this month. Even if we completely stopped FATCA I did not want to be associated as a citizen of a country that would do this to us or to our families. I made that decision very carefully. If I hadn’t renounced because of my situation I might have been able to fly under the radar for a really long time. I have no income. As it is I’ll be filing reams of paperwork because I renounced.
    I really think they are going to put some other law in place to punish those who renounced on top of this too.

  4. I still will not go anywhere near a U.S. Consulate. I’m still feeling burned from my contact with them 40 years ago and my feeling is they are worse–not better–now.
    Fortunately, I don’t have any “US indicia” and I don’t think many of us do.
    The bigger elephant in the room for the banks is how are they going to determine who was born in U.S. They can’t ask that question. CRA doesn’t know that information and can’t ask that question.
    I think I’m quite liking the elephant!

    1. This is the problem. The US should have reached out to its expats and improved its relations with them. Yet, instead, it made things worse.

    2. The banks or CRA can’t even ask you whether you are a US citizen. However, they appear to be counting on Parliament changing Canadian law at the direction of CRA.

    3. @Blaze – I almost hate to ask. I had decided to fly under the radar and never have anything to do with the US again but recently e-mailed the Calgary consulate to ask for an appt. I planned to renounce and then still never have anything to do with the US again. Is there something I should know, when you reference staying away from US consulates? @AtticusinCanada – what is all the paperwork you will do once you renounce? Is this to be IRS compliant?
      I’m not planning on filing US taxes ever since I have lived in Canada for 49 years, never knowing I was meant to be filing in the US as well. As far as US indicia, the only thing I have is that I was born in the US. I’m uncertain how to proceed.

  5. @Tim
    Your comment seemed reasonable. I guess “elephant in the room” is charter rights of US-born Canadians – and their reaction to unlawful discrimination. Not that the simple existence of Charter rights prevented Quebec’s proposal to ban kippas, hajibs and other religious garb from public workplaces. Still, such discrimination certainly seems unlawful and will be ultimately taken to court.
    Continue to use these words in any statement regarding FATCA in Canada: unlawful, harmful discrimination, national origin, Canadian Charter, court.

    1. @wondering, the discrimination you talked about was only in the workplace, right, because of laicism?
      I seem to recall hearing a NPR broadcast about it not too long ago. I can’t find it on their website though.

  6. @atticusing,
    Good luck with your appointment to renounce. I hope you are wrong regarding any new laws to punish those of us who have chosen to be non-U.S. persons. But like you, I don’t want to be part of a nation who behaves the way they do. I am a Canadian who just happened to be born south of the 49th parallel. I gave up that citizenship in 1972 and I have no desire to reclaim it nor to be reclaimed by them and leave my kids alone too!

  7. When I opened a new account my investment adviser gave me a contract to sign which had as one question: “Is there any reason the United States would consider you a U.S. citizen?”
    Not asking for my citizenship but being round-about.

    1. @johnnb
      I am curious how you responded to that? I would consider that as asking for your citizenship. If one said, “not to my knowledge,” would that suffice? Or would we be treading into willful, non-willful and all that malarky?

    2. @nobledreamer: Yes, it is exactly the same as asking for your citizenship but I suspect that it is worded that way by some lawyer who thinks by asking for your opinion about how the US might see you it somehow dekes around the law about directly asking you that question.
      I fully expect some such wordplay will be the standard method for the banks to use to find expats.
      My financial planner knows I came from the US and since I have my CLN I tried to answer “no” but was told that the answer in my case should be “not applicable.” I don’t understand that answer or the reasoning behind it.

    3. That’s what our finanical planner did – highlighted in yellow the question about whether or not we might be US persons. We just ignored it, left it blank

  8. @SwissPinoy, yes, this all could have been SO different. They could have simply informed us about FBAR, told us they would help us with it and given a reliable number to call. All the threats to average working people did them no favours. As far as tax forms go. Our embassies here in Canada have not had any tax help for years now. I thought CRA was already sharing information and since I hadn’t met the requirement for all but, one year in which they owe me I pretty much thought they already knew about me and our situation and didn’t care. We were not “hiding”
    The way they have treated expat families as equal to criminals has resulted in renunciations and turning us in to former “friends” of their nation. And it’s only beginning as we’re a small number of people who even know about the issues of FATCA.

  9. I am somewhat confused by these general descriptions of what to expect in the IGA. If they are not going to withhold 30% on recalcitrant accounts, why would the FFI’s even think of complying with this?

    1. This doesn’t nullify the 30% on with holdings to the bank itself from US source payments. I.E. the extortion threat remains intact.

  10. Hi Noble,
    I haven’t read Roy’s 20 page questionaire. Maybe I should. I have been getting differing opinions on what I should do from differing accountants. I’m so confused it’s not even funny. I’m going ahead with my appt. to renounce and then try to figure it out to the best of my knowledge. If it wasn’t for that ONE year I wouldn’t have a thing to have to file. I’m not even sure I can go streamlined. I’ll head over to see what Roy has to say.

  11. @ Nobledreamer
    Believe me, I’m not making apologies for financial institutions, but they will have to comply with the law. If the law says recalcitrant accounts have to be reported to CRA, that’s what they will do.
    The 30% withholding was eliminated since the information on the account will end up in the hands of the IRS eventually
    I also have to wonder how many recalcitrant accounts there will be when the dust settles. Reporting of recalcitrants may be grounds for a lawsuit.
    As has been said many times, if FFI’s spent just a small portion of what they are spending on compliance to fight on behalf of their customers, we might be looking at a completely different outcome.

  12. @johnnb
    “Not applicable.” I love it! What a great answer. Let CRA or the IRS figure out what it means. Let them try to get back to you for clarification, if that’s what they want. Let them drown further in their own bureaucratic mire and workload trying to sort THAT one out if they want.
    I think everyone should answer “not applicable.” How the hell am I, a Canadian, supposed to know whether the US would have a reason to consider me a US citizen? Do I look like a lawyer? “Not applicable” makes just as much sense to me as what I’d like to say but don’t recommend, to wit, “how the hell am I supposed to know what those morons south of my border think? DO they think?”
    Sol Alinsky would be proud of your financial planner. Is he familiar with Rules for Radicals?
    Certainly that’s what I’ll say and my wife will say. We both have CLNs, but I have no trouble recommending to those who don’t (yet, or ever) to reply that way.
    The best way to deal with a Big Brother database attempt is to gum up the works any way you can think of. “Not applicable” is perfect IMO.

  13. Johnnb: I believe that question is only being asked for investment accounts and not for banking accounts. Is that correct?
    When Tiger, Somerfugl and I consulted Joe Arvay, we only asked about bank accounts.At the time, we were not year aware of the questions being asked for investment accounts.
    So, I have no idea if banks and others can ask that question for accounts with U.S. source income. I personally don’t and won’t have any U.S. source income in any of my assets.
    It would be great to have a legal opinion on that. In the meantime, could N/A be considered Not Answering?!?

    1. I was opening an investment account so definitely yes there. All my regular banking accounts have existed since before the rocks cooled so I don’t know if they ask anything for those accounts. Maybe I should go try to open a regular account just for the experience.

  14. I love Wondering’s statement:

    Continue to use these words in any statement regarding FATCA in Canada: unlawful, harmful discrimination, national origin, Canadian Charter, court.

  15. @Blaze. Don’t write in “n/a” write in “not applicable,” that’s unambiguous.
    … or if your handwriting is as sloppy as mine is, maybe do n/a in such a way as it could also say “no”? Just saying …
    The problem would be if the form entry has to be electronic and not hand-written and doesn’t give the choice or have a blank line. If they can require that … you can always ask for a hard-copy form and claim you don’t have a computer or it’s in the shop for repairs, or something.
    Take as much of the bank’s time as you like in making work for them. If they’re going to comply with this (and they’re the only people in Canada who are pushing for an IGA as far as I know), make ’em suffer the consequences to the maximum possible extent. (In union circles it’s called “work to rule”)

  16. @Hazy and Johnnb and others
    I had a quick drill-down on the Scotia itrade page. The question is “are you considered a US person” (which is even worse; considered by whom? the Governor General of Mars? me, myself and I?) and then there’s a drop down. In the case of John, his wife, my wife, and me, the relevant choices are “not applicable” and “born in the US.” Well, yes, we were born in the US, but we have CLNs, there’s no choice for CLN, so the only palatable choice is “not applicable.” I’m sure as hell NOT saying “born in the US” even though I was, it’s irrelevant that I was born there and has been irrelevant for nearly 38 years now according to my CLN.
    I have not “considered a US person” by myself for 44 years, since I moved here and even before I became a citizen.
    If I had a student in a survey-design course submit a question wording like this on an exam, I’d fail the pathetic bugger. NEVER use passive instead of active voice unless you’re trying to obfuscate (or give the respondent an out big enough to drive a fleet of trucks through), and never ask a question worded in such a way as being unanswerable (how can I possibly know whether someone else considers me anything unless they tell me and I believe them).
    The advantage of the “not applicable” is it gives the company an out, in that they aren’t actually forcing you to surrender your Section 15 rights by identifying birthplace or citizenship, there’s always “not applicable” as a choice. Which as it happens is exactly what any Canadian-born, Canadian-parented citizen is going to answer, as none of the other choices apply to them. Note also that “accidental citizens” born in Canada really have no choice other than “not applicable;” there aren’t any choices pertaining to the nationality of your parents, and boy wouldn’t that raise a firestorm of a Charter challenge if there were such a choice!
    I’d say a team of lawyers came up with “not applicable” and it’s up to the bloody IRS or CRA to figure out what that means. Unless they want to send follow-up questionnaires to every person who chooses “not applicable” and explicitly ask “are you a Canadian citizen born of Canadian parents in Canada” which is going to be true of about 95-97% of people who answer this question, as currently structured, with “not applicable” (if the population estimates of about one million of us are correct), which will hugely increase both the cost of administering this pile of horse dung and the likelihood of all sorts of political and legal blow-back on the government.
    I think the word is “finesse” from my old contract bridge days.
    Every time I contemplate FATCA, I impressed again by the truth of the quote attributed to Einstein: “the difference between intelligence and stupidity is that intelligence has limits.”

  17. If you look at it again, the question is in the same section as a drop down for citizenship.
    The choices are canadian, other, US, and dual
    Again, an ambiguous question. Canadian certainly. Other? -maybe but not to the exclusion of Canadian. US?- same problem. Dual?- Dual with whom?- doesn’t say

  18. How can they be asking citizenship or place of birth already? Is that wording ambiguous enough to get around the Charter? Really?

  19. @DM56, there is form 8854 to let them know you are out of the system and five years of forms for me. I am not sure about those forms though as I didn’t meet the requirement to even have to file so I’ll just send those with all zeros just to be on the safe side and six years of FBARS even though I have no income to report to them just the accounts I share with my Canadian spouse who makes all our income. That’s enough paperwork for zero tax owed and hadn’t even met the requirement to have to file, I’d say!

  20. Atticus, Are you sure you need to file FBARS? 5 years of ‘tax compliancy’ that you agree to at time of renunciation means actual tax filings, not FBARS, does it not? Perhaps talk to Peter; I think he knows more about this.

  21. @AtticusinCanada I guess I won’t be filing those forms since I am not IRS compliant anyway and I have no intention of letting the US know that. It doesn’t matter since I haven’t set foot in the US since I found out about FATCA.
    I’m assuming I can just fill out the forms for renunciation and say that I consider myself only Canadian and that will be all that is required of me.

  22. I don’t have time to go into details, because I am tied up on some other matters, but I will update the forum.
    I have renounced.
    The current sitting US President will be the object of my wrath and vitriol until my dying day for putting me to so much trouble. I will never forgive him or the lawmakers that drafted that FATCA monstrosity. Damn them all to hell!!!!
    The were quite a number of other people in the same waiting area as I was (about 6 or 7 of us), all there to relinquish or renounce. The mood amongst all of us was the same. The fury against that moron was palpable. How anybody with any active brain cells can consider that dolt to presidential material is beyond me. Anybody who thinks he is needs a brain transplant.
    Recently, I did get a a good deal of satisfaction watching Vladimir Putin bitch slap him in the international stage. Robert Spencer has suggested that perhaps Vladimir Putin is the real leader of the free world now. Maybe that is not as much of stretch as we might first think.

    1. Congratulations.
      My word to Obamacrats: you know your country is in deep trouble when a retired KGB colonel can make utter fools of your president and secretary of state and show them up as the bumbling amateurs they are. Hilary Clinton was right in 2008 when she suggested that Obama would be over his head in the White House.
      Boehner raved about how the fact that the NY Times published Putin’s op–ed piece proves American is “exceptional.” It seems more than passing strange to me, and rather less than exceptional, that the same NY Times (and the Washington Post, and the Wall Street Journal) wouldn’t publish Jim Flaherty’s letter criticizing FATCA two years ago. But our Financial Post did.
      I thought Putin’s riff on “exceptionalism” was brilliant. I may have to re-assess my views of KGB colonels.

  23. Congratulations ArcticGreyling. When you have time and if you’re willing, maybe you could post more information in the Relinquish-Renounce thread.

  24. Earlier today, Reuters had a short article about an important announcement from Flaherty. There was speculation that the announcement might be about an IGA
    The announcement turned out to be about something entirely different from FATCA. It was “The Ministers of Finance of British Columbia, Ontario and Canada agreed today to establish a cooperative capital markets regulatory system and invite all provinces and territories to participate in the proposed system”
    I guess we’re not the only ones watching Flaherty’s every move.

  25. I really don’t meet the requirement to have to file except one year which I already paid them too much on so they owe me! However, I will not claim what they owe me as that would put me into “high risk” How stupid is that? I paid too much, they owe me but, I’m “high risk” good god. Kermit, I just mean FBAR’s which I really wouldn’t need to worry about either except I’m relinquishing so just want to be out, and done totally. I’m not worried about penalties on those as it is my Canadian spouse I’d be reporting accounts on really and if they put a penalty on FBAR for us they can go pound sand as we won’t pay it. Canada will not collect it for them and it’s not taxes as I would never owe any. I’m NOT paying FBAR penalty on a foreign persons report. Nope. Not doing it. He wouldn’t go along with that anyway having never lived, worked or earned in the U.S. So I will file the FBAR when I relinquish and then my 8854 saying I’m not one of you people anymore to protect my family here in Canada and let that be that.

  26. It seems this threat of huge FBAR penalties is radicalizing Americans abroad, and this is with maybe 5% of AA knowing about FBAR. Also, are you renouncing or relinquishing? I have a hefty $480 charge (US$ is a bit higher than CAN$ now) on my Visa from my Sept 7 visit to US consulate. I think relinquishing is free.

  27. I am trying to relinquish. Arctic, Congratulations!!
    I think what has been going on with this has united the left, right and centre in Canada against Obama. I told someone not long ago that I wont’ EVER forgive this. In all the years I’ve been here and as old as I am no other POTUS made me feel forced to renounce to protect my family. Doing that to anyone never mind this many people is the utterly shameful. Never mind all the rest of the suffering, the fear mongering against innocent families, the LIES about what FATCA is while all this suffering goes on. You say 6 or 7 were there ALL relinquishing? Wow!
    I cannot wait to see how they will explain by this time next year that ALL these Canadians renouncing are all “tax cheats?” that dog won’t hunt as my grand father used to say.

  28. Okay, clicked on another story on that link, and I really don’t like this statement,
    “Mr. Jacobson was speaking as the two governments reported “significant progress” on their plan that aims to “thin” their border.”
    I want a THICK border between the United States of Arrogance and Canada, not a thinner one.

  29. @ schubert………..
    I have definitely reassessed KGB colonels, retired or otherwise. I have no doubt that it would not be a good idea for anybody living in Russia to have Mr. Putin pissed off at him/her. However, I do respect the man. He was absolutely right to stand off Obama against military action in Syria.
    I also think that FATCA had something to do with Harper refusing to commit our forces to it.
    What I find amusing is that any military action by the United States would pit them against China and Russia as adversaries. To fund any military action, Obama would probably have to clear it with his Chinese bankers first. Otherwise, he wouldn’t have the money to fund it. Sarah Palin said she could see Russia from her front porch. Obama’s sycophants in the press ridiculed her for that. Do think think the anointed one could see his Chinese bankers from the Oval Office?
    Actually, China and Russia (both huge net creditor nations now) could bring down the United States without military action. All they would have to do is dump their US Bond holdings, and the the Americans would be done in a day.
    Note how Obama has supported the Al-Queda Sunni Muslim brotherhood in Libya, Egypt, and now in Syria. Notice how he rattled his sabre against Shia Iran. Has it not occurred to people that it’s because he is a Sunni Muslim himself? I am convinced that he is. He is doing the bidding of the Saudi Royal Family. His own half brother is connected to the Muslim Brotherhood. He is supporting the people who did 9/11. He should be charged with treason.
    @ the forum………..
    What about the idea a class action lawsuit? It seems that there is a big one going on over NSA bugging. I don’t think that the idea is so far fetched for us.

  30. @Arctic, I’m not right wing at ALL but, in defence of Palin since I don’t like when female pols are taken to task for things they did not do. She never said she could see Russia from her front porch. That was Tina Fey! lol!! She said you could see Russia from a small island off Alaska. I’d never vote for the woman as I strongly disagree with many of her positions and since I’m not going to be a “U.S. person” However, a funny made by Fey got attributed to Palin.
    Also, I don’t agree with you that Obama is a “Muslim” and what if he were? I do agree with you that he has some very dubious dealings supporting certain rebels the U.S. formerly strongly opposed. That is before they trained and armed them. Who can keep up? We could go on all day about the U.S. giving weapons to dictators, supporting corrupt regimes then opposing them later. There’s a lot they have done but, it’s got zero to do with FATCA.
    At any rate who cares? I think focusing on fighting FATCA in Canada is the only way to deal with this. Railing about or trying to convince anyone about anything to do with the U.S. inside that country is going to get us no where.

    1. @AtticusinCanada
      I strongly agree with you last paragraph above. We’re Canadians. Most American political leaders and the much of the American population could care less about opinions expressed by residents of other countries, even if those residents are American citizens. This has been proven time and time again.
      Although it doesn’t hurt to at least try to sway policy makers in the U.S. all I can say is Good Luck!, I wish you well. Your message might make it into the brains of a few.

  31. We can only influence (maybe) our own government, so let’s concentrate on that, educate them, wear them down, force them to protect their citizens. If Canada stands up to the US overreach, then perhaps others will follow our example, instead of blindly assuming they must comply with US laws.

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