Proposed Amendment Idea Sent to NDP, Liberals On Finance Committee and to Elizabeth May

Anne Frank over at Brock made a brilliant but simple suggestion on Friday for a proposed amendment to the enabling act for the IGA. Anne said:

Canada COULD unilaterally amend the IGA via the implementation treaty with a simple “notwithstanding” clause to the effect of “Notwithstanding any other provision of this Act or the IGA, no Canadian citizen resident in Canada or other permanent resident of Canada shall be considered to be a “US Person” for purposes of the Act or the IGA”. The IGA would be unamended – the implementation Act would simply gut it of its Charter-violating aspect…
The Act is amended by inserting after subsection 4(1) thereof the following:
“section 4 (1.1) Notwithstanding any other provision of this Act or the Agreement, for all purposes related to the implemenation of this Act and the Agreement, “US Person” and “Specified US Person” shall not include any person who is a Canadian citizen or is a landed immigrant ordinarily resident in Canada.”
That simple amendment, made to the implementing Act, would put the ball right back in Treasury’s court. They can deem all Canadian financial institutions non-compliant and bring their own financial house of cards down about their own heads (as withholding, while possibly lawful in the US, will not excuse the withholder in any other jurisdiction, including Canada). It would take a positive act on the part of Treasury to blacklist the entire country. They would not be able to point to 10 cents of revenue that they would be seeking to protect
in so doing. Further, as pointed out above, Canada would have more than enough fodder to retaliate in kind given the far larger magnitude of US investments in Canada (most of which, unlike bank accounts, can’t be moved overnight). All they would have to do is pretend that the IGA is compliant and drive on. It would be a brilliant move by the Government were they to allow themselves to be backed into it due to a serious Charter Challenge.

I ran that idea by a few people and have learned that amendment would be best in the enabling law and not in the IGA because the enabling act can be amended in Parliament, but an IGA amendment would require Finance Canada to submit the revisions to US Treasury for approval.
So, Friday night I sent this e-mail to NDP Finance Critic Nathan Cullen and Liberal Finance and Revenue Critic Scott Brison who are vice-chairs of the Finance Committee with copies to Finance Committee members Murray Rankin (NDP) and Guy Caron (Liberal). I  also sent a copy to Elizabeth May.

Thank you Mr. Cullen and Mr. Brison for your position and that of your NDP, Liberal and Green colleagues on FATCA in the House of Commons.
The Harper Cons and Finance Canada have been consistent in their unwillingness to listen to Canadians on this and many other issues.
I am writing to you as vice-chairs of the Finance Committee to suggest an amendment to the enabling legislation and/or IGA and to ask if you and/or your party would consider supporting Canadians on a possible constitutional challenge.
SUGGESTED AMENDMENT:
Here is a suggested amendment to the FATCA enabling legislation and/or the IGA.
“Notwithstanding any other provision of this Act or the Agreement, for all purposes related to the implementation of this Act and the Agreement, “US Person” and “Specified US Person” shall not include any person who is a Canadian citizen or legal permanent resident who is  ordinarily resident in Canada.”
With a Conservative majority on the Finance Committee and in the House, I realize this amendment would be likely to fail.  However, it may force Conservatives into voting against it, showing they clearly will not stand up for Canadian citizens and residents who were born in the United States.
POSSIBLE CONSTITUTIONAL CHALLENGE
You raised the Charter issue in the House. For your information, Dr. Stephen Kish and I have retained Joseph Arvay for a legal opinion on this.  We were able to do this because we raised the money for this legal opinion in just six days from Canadians and people around the world.
If the Charter challenge proceeds further, we expect we will be able to raise the funds for that.  Would you and/or your party consider supporting us in this?
Attached is a copy of a news release issued on March 10 regarding this.
Again, thank you for your efforts on this affront to Canadian citizens, residents, laws, rights and sovereignty.

 
 

17 thoughts on “Proposed Amendment Idea Sent to NDP, Liberals On Finance Committee and to Elizabeth May

  1. I sent a similar email to Nathan Cullen the same day that Blaze sent her email (in fact, we consulted briefly on this by private email), giving some further arguments for the political advantages of forcing the Conservatives to vote on the proposed amendment.
    The next day as it happens I received a recorded voice-mail robo-message at home from Tom Mulcair (Leader of the NDP and of the Opposition in the House of Commons), reminding me he was giving a speech Sunday morning April 6 in downtown Ottawa to kick off the NDP’s 2015 election campaign, inviting me and my wife to attend that speech. The venue is an easy walk from our home.
    I decided it was important to reinforce the emails with some personal contact, taking advantage of the meeting and hoping that Cullen might be in attendance (he wasn’t, as it happens). So I printed copies both of my email and Blaze’s and stapled the copies together.
    I attended the speech. Immediately prior to the speech, I had a brief opportunity (which I took) to introduce myself to Mulcair (who was waiting for an elevator next to me) and to hand him a copy of the emails. I said I’d hoped to give the emails to Cullen, but he wasn’t there, and giving them to the Leader of the Opposition was so much the better. Mulcair smiled, accepted the pages, and said his caucus had repeatedly raised FATCA and the IGA problems in the House earlier that week. I said I knew that, and thanked him profusely for the NDP’s support on this. He gave me two thumbs up and disappeared into the elevator, 20 minutes or so before giving his speech.
    After the speech, I saw my MP Paul Dewar (NDP Foreign Affairs Critic) at the back of the audience. I spoke briefly with him, confirmed with him that Cullen is the NDP’s “point person” on the omnibus budget bill and related matters including FATCA, and gave Dewar my backup copy of the emails. Dewar told me he would deliver the printouts to Cullen himself.
    So that’s two independent and very senior by-hand routings of the draft amendment to Cullen, in addition to his email inbasket which may or may not get a lot of attention in the next few days. I think we can reasonably assume those in the NDP who need to, will read the draft amendment and the rationale for it. What they do with this is, of course, up to them and their strategy and priorities under the tight time deadlines the Conservatives are imposing on Parliament for debating and voting on this complex and fundamentally anti-democratic omnibus “budget bill” (which isn’t a true budget bill, but an abomination and an abuse both of the budget and of parliamentary procedure).
    Thanks to “Anne Frank” for suggesting the draft amendment in a post a few days ago. Once again, we’ve all shown how we Canadians can support each other in this battle, on short notice.

  2. I second your applause Atticus! Thanks Blaze and Schubert for making clever use of Anne Frank’s great idea!

  3. Good on Cullen and Elizabeth May.
    I do, however, find it ironic that given the apparent political philosophies of each, I dare say that given the right to do so, they would have voted for the clown who, in his capacity as President, signed that FATCA monstrosity into law.
    It’s also somewhat ironic to me that Obama did extremely well with the absentee vote, even though it is his law (FATCA was his idea) that is making expats realize that the United States of Arrogance is not the Land of the Free at all.

  4. Great Work Anne Frank, Blaze and Schubert!
    To give more attention to the FATCA issue, I sent an email to Joe Oliver after his debut speech today as Finance Minister:
    Dear Mr. Oliver,
    I enjoyed watching your debut speech today at the Canadian Club outlining your priorities as new Finance Minister. I couldn’t agree with you more that Canada is the greatest country in the world. We should be proud to have the lowest debt of any developed country, as you said.
    There is a way, however, that we can make Canada even better. This is by not discriminating against Canadian Citizens with U.S. ties by violating the Canadian Charter of Rights and Freedoms to enforce FATCA (Foreign Account Tax Compliance Act). This subject needs your attention. I did not hear any mention of FATCA in your speech although this United States law will likely be very costly for all Canadians not just the estimated one million Canadian Citizen U.S. persons.
    Please stand up and take notice of this threat to Canada’s sovereignty and economy. Help us to avoid engaging in reckless new spending which will harm many Canadians.
    Thank you,
    Pat XXXXX
    Canadian Citizen
    I signed my full name. Maybe if an amendment is introduced he will have some idea of what FATCA is.

  5. The MPs have been in their home ridings on a a two week Easter break. I understand the NDP and Liberal members will consider the suggested amendment when they return next week.
    Before the enabling law can be passed, it must be considered at the Finance Committee which will meet regarding this for two days in May.  I hope they will consider the suggested amendment at that time. I also hope this amendment will be approved, but with a Con majority, I’m not optimistic.
    I am in ongoing contact with the Assistants to Nathan Cullen, Scott Brison and Murray Rankin regarding the suggested amendment and other issues.
    I also made a request under Access to Information for copies of all of the submissions.   I understand Finance Canada may ask for an extension of 30 days to provide those submissions.
    I asked if those submissions would be given to the Finance Committee members.
    This was the response:

    “The relevant people in Tax Policy Branch have said that it is not the general practice of the Department to share submissions on draft legislation with Parliamentary committees.”

    My response back was:

    “What then is the purpose of making submissions on proposed legislation if elected officials don’t see the submissions?”

    I did not receive a reply. So, I have alerted Cullen, Brison and Rankin’s Assistants. They will attempt to get copies of the submissions. In the meantime, I sent copies of my submissions as well as the Christians-Cockfield ad Richards0n-Kish submissions to the Assistants.
    As a result of my communications with the MPs, Murray Rankin’s Assistant asked if she could suggest my name as a witness to testify before the Finance Committee.  Of course, I said “Yes,” but I don’t know if my name will be accepted or even what the process is for this.  She is working on arranging for me to testify via videoconferencing so I would not be required to travel to Ottawa.
    In addition, yesterday I submitted the suggested amendment to members of the Senate Finance Committee.  Thanks Anne Frank for the excellent idea!
     
     
     
     

  6. @Blaze, if you testify, please mention the touchy issue of Canadians immigrants to the US. Many of them are not FBAR compliant and their life savings are at risk if their info is transferred.
    As you may know, there are still no reasonable path to compliance for US residents and OVDI is the recommended method by the IRS.
    Thanks so much on our behalf.

  7. Thats realpoliteks for sure.
    The conservatives could split the loaf and vote for it by removing landed immigrants.
    But it will be absolute poison to not protect Canadian Citizens. The opposition with co-operating media could have a field day with that.
    The point is that Harper and crew are throwing CANADIAN CITIZENS under a bus Made in USofA.

  8. The Senate National Finance Committee has announced its first hearing on FATCA and the Budget for this Tuesday. Kevin Shoom will be testifying on behalf of the Department of Finance. I made a post about this at IBS.
    http://isaacbrocksociety.ca/2014/04/25/kevin-shoom-testifies-before-senate-national-finance-committee-on-tuesday-on-fatca-bankers-come-wednesday/
    It is my understanding that the Senate Committees in particular the National Finance Committee will have more time and resources to study FATCA and the IGA than the House of Commons committees will. Thus it is important to reach out to the Senate Committees too even though in the whole scheme of things the Senate isn’t thought to be as important as the House of Commons.

  9. On TUESDAY, I wrote the following to the members of the Senate Finance Committee:

    As part of Bill C31, you will soon be reviewing the Canada–United States Enhanced Tax Information Exchange Agreement Implementation Act
    I propose the following amendment to this law:
    “Notwithstanding any other provision of this Act or the Agreement, for all purposes related to the implementation of this Act and the Agreement, “US Person” and “Specified US Person” shall not include any person who is a Canadian citizen or legal permanent resident who is  ordinarily resident in Canada.”
    FATCA: FOREIGN DEMANDS vs CANADIAN RIGHTS:
    You may be aware the Conservatives have introduced an unprecedented law that will prevail over all other Canadian laws, including banking, privacy and human rights laws. They are doing this upon demands of a foreign government to provide private banking and financial information on Canadian citizens and residents.
    Under FATCA (Foreign Account Tax Compliance Act, the American government is demanding banks and other financial institutions around the world provide information on anyone it deems to be a “US person.” This includes Canadian citizens who were born in the United States.  Information required includes total assets, account balances, transactions, account numbers and other personal identifying information.
    Canada has signed an Intergovernmental Agreement (IGA) where banks will report this information to Canada Revenue Agency (CRA) to report to IRS.  This places Canadians in a double jeopardy situation.
    It is outrageous that the Canadian government is so willing to sacrifice Canadian citizens, laws, values, rights and sovereignty on the demands of a a foreign government.  I doubt Canada would agree to such demands about Canadians from China, Iran, Russia, Eritrea, Pakistan or any other country.
    Canada has capitulated to this demand because of the threats of 30% withholding on payments from the United States to Canadian financial institutions.
    I have been a Canadian citizen for forty-one years. When I became a Canadian in 1973, US Consulate told me clearly, firmly and directly I was “permanently and irrevocably“ relinquishing US citizenship.  Yet, the Americans are demanding information about my Canadian assets, which were entirely earned, saved, invested and taxed in Canada.  This means my place of birth in a foreign country will override my rights as a Canadian citizen for four decades.
    SUBMISSIONS:
    Attached are two submissions I made to Finance Canada.  Also attached is a submission made by law professors Allison Christians and Arthur Cockfield and one made by lawyer John Richardson and Dr. Stephen Kish.  Several other individuals and organizations have also made submissions, which you could request from Finance Canada.
    I sincerely hope you will review these.
    CHARTER OF RIGHTS

    Some of us have consulted one of Canada`s most prominent constitutional lawyers. We are prepared to fight this legislation and to stand up for our rights under Canada`s Charter of Rights and Freedoms. It is despicable our government is forcing us into this position to defend long-standing Canadian rights.
    It is possible this legal battle could be avoided if the amendment I am suggesting would be adopted.
    Please stand up for Canadians. Please recommend or adopt this amendment.

    TODAY, I sent the following:

    Below is an e-mail I sent to you with a proposed amendment to the FATCA IGA Implementation Act.  Attached to that e-mail are four of the numerous submissions Finance Canada has received from Canadians.
    I have now learned that representatives of Finance Canada will testify before you on Tuesday, April 29. On Wednesday, April 30, you will hear from representatives of Canadian banks.
    Where are the voices of ordinary Canadians?. Why aren’t you insisting on hearing from those most affected by FATCA? There are approximately 1 million of us. The majority of us are Canadian citizens. Many of us have bee Canadian citizens for decades or even entire lives. In some cases, those Canadians are now in their 70s, 80s or 90s.
    We have been law-abiding Canadian citizens, residents and taxpayers whom Finance Canada betrayed with the IGA.
    Please hear our voices. Please invite us to testify before you. Please invite Professors Christians and Cockfield to testify. Please invite Mr. Richardson and Dr. Kish to testify.
    Please demand that Finance Canada share with you the over 400 pages of submissions they received from Canadians on FATCA and the IGA.  They are now delaying my request to see those submissions until after the law is likely passed.  Please read what Canadians are saying and how we and our Canadian-born families are affected.
    Thank you.

    LATER TODAY,  I sent this to the Clerk of  the Finance Committee:

    Below are two e-mails i sent to Senate Finance Committee members regarding the Canada–United States Enhanced Tax Information Exchange Agreement Implementation Act (for Foreign Account Tax Compliance Act Intergovernmental Agreement) which is part of BIA C31.
    As you will see in my first e-mail, I am suggesting an amendment to the Act as follows:

    “Notwithstanding any other provision of this Act or the Agreement, for all purposes related to the implementation of this Act and the Agreement, “US Person” and “Specified US Person” shall not include any person who is a Canadian citizen or legal permanent resident who is  ordinarily resident in Canada.”

    Please present this suggested amendment to the members of the Senate Finance Committee.
    It is imperative Senators and MPs uphold the rights of all Canadian citizens and residents–regardless of where we were born.
    Please hear our voices.  Please read the attached submissions. Please request the other 400 pages of submissions that were made to Finance Canada from Canadians across Canada.   (I have requested copies of those, but I have been advised this will not likely be provided until after the Act is passed)

    Please invite Canadians to testify before your committee–not just Finance Canada and banking officials.  I know many who would be willing to do so–myself included.

     
     

  10. Sorry everyone.  I tried to block quotes and bold some sections to make some of these posts easier to read.  For some reason, those functions don`t seem to be working and everything reverts to plain text.
    I hope you are able to figure it all out. Maybe Outraged can correct it.

  11. For being a strong voice for so many, Blaze, thank you so very much!
    quote
    Where are the voices of ordinary Canadians?. Why aren’t you insisting on hearing from those most affected by FATCA? There are approximately 1 million of us. The majority of us are Canadian citizens. Many of us have bee Canadian citizens for decades or even entire lives. In some cases, those Canadians are now in their 70s, 80s or 90s.
    We have been law-abiding Canadian citizens, residents and taxpayers whom Finance Canada betrayed with the IGA.
    Please hear our voices. Please invite us to testify before you. Please invite Professors Christians and Cockfield to testify. Please invite Mr. Richardson and Dr. Kish to testify.
    Please demand that Finance Canada share with you the over 400 pages of submissions they received from Canadians on FATCA and the IGA. They are now delaying my request to see those submissions until after the law is likely passed. Please read what Canadians are saying and how we and our Canadian-born families are affected.
    unquote
    Absolutely — thank you!!!

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