We’ve had some requests to post the letters people are writing. Some of the letters are from people pointing out facts and information, some are angry letters, and others are heartfelt pleas.
Reading what someone else has written can help us figure out what we want to say, so Blaze and I thought it would be a good idea to have a place where people can share their letters.
You can cut & paste into a comment, but if you want to submit a PDF or Word document, just email it to me and I’ll get it in and create a link to it.
Thanks to Petit Suisse for the inspiration for this. Petit Suisse has added the letter to the comments on the FATCA Information from Canada Revenue Agency thread.
I’ve uploaded it here, and it’s a great way to kick off this thread.
Reminder of address:
Email: IGA-AIG@fin.gc.ca
Snail Mail address:
Tax Policy Branch
Department of Finance
140 O’Connor Street
Ottawa, Ontario
K1A 0G5

As most of you know, the possibility of a challenge under the Canadian Charter of Rights and Freedoms has been discussed for some time.
With the signing of the IGA and proposed legislation to override existing Canadian laws, we need to determine our next steps.
Prominent Canadian constitutional lawyer Joseph Arvay has reviewed the IGA and the proposed legislation. He has recommended as the first step a formal legal opinion to advise if a challenge would have a reasonable possibility of success. In his letter to me (real name and address removed), Mr. Arvay said

“You have asked for our opinion as to whether or not a challenge to any proposed legislation would have a reasonable prospect of success. Our initial review of the proposed legislation indicates that there may be a serious question as to whether it would withstand constitutional scrutiny once enacted. We question whether the proposed legislation is compliant with the Charter of Rights and Freedoms or whether it violates protections under the Charter against discrimination based on national origin or citizenship, against unreasonable search and seizure and against deprivation of liberty except in accordance with the principles of fundamental justice. We also question whether the proposed legislation falls validly under the federal jurisdiction over taxation, or whether it is in substance regulation of financial institutions in which case federal jurisdiction is limited to regulating banks but not provincially regulated financial institutions such as credit unions.”

IRSCompliant and I have communicated with four other lawyers. They all agree a legal opinion should be our next step before proceeding further.
Mr. Arvay’s letter also says

In order to answer those questions, a proper opinion needs to be prepared. We are prepared to prepare this opinion for a fee of $15,000 plus applicable taxes.

So, the cost for this legal opinion would be $15,000 plus tax, which would bring the cost for the opinion to around $17,000. To many, that cost for an opinion probably seems steep.
However, the four lawyers agree that this is a very reasonable cost and is far below what they would expect we would pay for a formal legal opinion.
To put the costs in perspective, we would need one contributor at $17,000 or 17 contributors at $1,000 each or 34 contributors at $500 each or 100 contributors at $170 each or 170 contributors at $100 each or a combination of those or other amounts. (Due to the administration, we would request donations of a minimum of $100 each.)
We should aim to raise more than that amount for contingency and administrative purposes.
There is agreement among those that we have contacted–including with a senior legal expert–that Mr. Arvay would be an excellent choice for a Charter challenge.
The next step is to decide a) Do people want to proceed with this? b) Do people want to retain Joe Arvay for a legal opinion? c) Are people willing and able to contribute to the costs?
Many individuals have asked if Canadian Civil Liberties Association could assist with the case. Abby Deshman has advised each case must go through an individual approval process. When CCLA becomes involved:

The general mode of operation is as an intervener, requesting the court add CCLA to the ongoing case as a friend of the court. Normally, the case is already going forward with the parties independently represented.  As a non-profit, we unfortunately do not finance others’ legal cases, and in general are not in a position to represent individuals in launching legal actions.

Ms. Deshman, however, has advised it is possible CCLA might be able to provide some assistance with legal research.
Please advise if a) You agree we should seek this legal opinion b) if you would be able to contribute (we will request a minimum donation of $100).
Someone is researching ways we might raise and administer the funds if people do want to proceed and are able to contribute.
If the case proceeds beyond the legal opinion though the courts, the costs will, of course, increase greatly. We are not able to say exactly what the costs would be, but we expect they could be $100,000 to $250,000 or more.
You should note that after we receive a legal opinion, we will not be able to publicly share the details of the content or post it on line. This is for strategic reasons and to ensure confidentiality of the position the case may take before the courts.

Here is a reply I received from the office Liberal MP Ted Hsu (Kingston and the Islands) on the FATCA IGA and proposed legislation

Thank you for your email regarding FATCA.
The government’s recent announcement of how it plans to implement obligations under FATCA is disappointing, in particular because it does not demonstrate respect for the Charter of Rights and Freedoms, privacy law, and Canadian sovereignty. We anticipate legislation implementing the government’s FATCA agreement will find expression in the upcoming budget implementation act. We will review this legislation carefully, suggests amendments, and continue to work with both tax policy and constitutional experts. From obtained documents, it appears that the government has consulted with banks rather than Canadian citizens.
Mr. Hsu will continue to monitor this situation, and the members of the Liberal Party team who are working on the file will certainly continue to obtain and analyze all necessary information to develop a strong policy that will respect the Charter of Rights and Freedoms. In the meantime, I invite you to share your concerns with the Minister of Finance and the Minister of National Revenue, at flaherty.j@parl.gc.ca and Kerry-Lynne.Findlay@parl.gc.ca respectively.
Thank you for your email. If you have any further questions or comments, please do not hesitate to contact our office.
 

Here is an excellent new Interview with Professor Allison Christians on FATCA.
She makes several insightful and informed comments. She says everything there is to say about FATCA with one sentence:

The main feature of FATCA is fear.

Let’s not let that fear overtake us. We need to keep fighting for what is right.
 
 

The venue and time for the  “Solving US Citizenship Problems”  Information
Session have changed. This program will take place at:
The Westin Grand Hotel – Symphony Room (banquet hall)
433 Robson St. (between Richards and Homer – 2 Blocks NORTH of original location)
Vancouver, British Columbia V6B 6L9
Time: 1:30 – 4:30 pm
Donation $20 (to cover costs)  payable at the door

I am not a lawyer, and the following is not legal advice. However, in reflecting on the wording of the Canada-US IGA and the wording of the Canada-US Convention (aka “treaty”) under which the IGA is signed, I pose the following question (which would need to be answered by a lawyer and maybe by a judge).
Given the wordings I have extracted below, can Canda Revenue Agency in fact and in law, and under these agreements, provide account information to IRS with respect to persons resident in Canada who are Canadian citizens (whether by birth or by naturalization)? This may hinge on the interpretation in law of the phrase “subject to the confidentiality AND OTHER PROTECTIONS” provided in the Convention (tax treaty), which Convention specifically EXEMPTS from collection by CRA any US tax liability claims made against any Canadian resident who is, and was at the time period for which the tax liability claims are made by IRS, OR WHO IS AND WAS PRIOR TO NOVEMBER 9, 1995, a Canadian citizen (no matter what time period for which a tax liability claim might be made). My non-legal mind certainly interprets that exemption as a “protection.”
Continue reading Legal question: Can CRA report accounts held by Canadian citizens, even under the IGA? →

Here is the proposed legislation to enable FATCA IGA in Canada, which is called Legislative Proposals Related to the Canada-United States Enhanced Tax Information Exchange Agreement Implementation Act.
I don’t pretend to understand all the legalese, but this jumped out at me:

   4.  (1)  Subject to subsection (2), in the event of any inconsistency between the provisions of this Act or the Agreement and the provisions of any other law (other than Part XVIII of the Income Tax Act), the provisions of this Act and the Agreement prevail to the extent of the inconsistency.

Inconsistent laws — exception

I told people at the London Ontario session last week I would have a synopsis of the information session this week.
Other FATCA related projects have consumed my life and I’ve only begun working on it. When it is finished, I want John to review it so it may be the weekend or even next week before I post it. Please be patient.
Also, if anyone who was at that meeting is interested in getting together with others informally, could you either post something here or send me an e-mail at maplesandbox at yahoo dot ca.  I wish I had asked people to sign their names if they were interested in that.