There have been very few comments from Jim Flaherty or the Canadian Government, in general, for many months regarding FATCA or the situation of so called USPs in Canada.
Mr Flaherty’s comments last Fall were quite strong. As you all likely know, he made it clear that FBAR penalties would not be collected in Canada and that Canada was not a tax haven. He seemed to be strongly backing USPs in Canada. His comments were very reassuring.
There have been some hints that an IGA ( Intergovernmental Agreement) over FATCA is being negotiated, but nothing concrete has been said, to my knowledge.
Often, the Canadian government gives in to the elephant next door. Just look at what has been done to satisfy the U. S.over border security issues. However, there have been other issues such as softwood lumber where Canada has stood its ground.
My question is- will the Harper government give in to the Americans or will it vigorously protect the rights of its citizens?
Countries on an irregular basis establish or amend tax treaties with other countries. The Canada US treaty is now in its fifth protocol.
Although I’ll mention a few items for the Canada US treaty, the discussion is open worldwide to treaties between the US and the country of your residence.
For the moment, I’ll assume the US refuses to budge on citizenship based taxation.
For the Canada US treaty, I’d like to see an exemption for Registered Disability Savings Plans ( RDSP), Registered Educational Savings Plans (RESP) and Tax Free Savings Plans (TFSA).
Of course, the IRS would likely develop long and complicated forms for reporting each of these items, but at least there would be a way to exempt them from the US taxman.
The paper by Andrew Bonham, cited elsewhere, gives much food for thought. Among the many things that caught my attention was his comment on page 344 regarding the $ 50,000 cap on FATCA penalties.
As he stated, ‘This amount, it is asserted, is just low enough to potentially deter individual challenges, owing to the legal costs that would be incurred in mounting a judicial review application’
He does later state that class actions may be possible.
This made me think of cases where people have gone to Court, putting themselves through a lot of trouble and possibly a great deal of expense over relatively minor amounts of money.
One case that comes to mind is Mullin v. the Queen 99 DTC 748 (T.C.C.) the results of which have had a great benefit for many rural Canadians. Reasonable transportation expenses for medical travel to obtain services not available locally have long been allowed as legitimate medical expenses. In the Mullin case http://decision.tcc-cci.gc.ca/en/1999/1999tcc972815/1999tcc972815.html the issue was what reasonable expenses were if one had to travel using their own vehicle. The actual tax at issue was likely less than $ 300.
The result of this decision effectively increased the amount that could be claimed to the mileage rate allowed to Federal government employees (like tax auditors for example). This mileage rate includes not only gas and oil, but the full cost of car ownership including repairs and maintenance, insurance, loan interest and depreciation.
The overall effect is that much larger medical claims could be made than in the past if one’s health problems forced them to travel larger distances to see specialists or obtain the recommended treatment.
So, I think it is possible that someone, somewhere, on principles alone, might challenge a FATCA penalty even if it costs them more than the penalty. However, I would hope that others with an interest in the case would assist whomever it is with the costs of the case.
This is a non technical description on how I have dealt with FATCA and some general suggestions for others. It is based primarily on FATCA as it stood in July, 2011. I realize that there have been significant developments (such as IGAs) and new draft regulations in the meantime, but the basics remain the same.
As this is a Sandbox and there may be children playing nearby, I won’t use many of the words, most not polite, to describe the abomination that is FATCA. I’ll leave that to others in other places.
By way of preface, I am a prime candidate for relinquishment, but have not yet chosen to go through the process. Instead, I have chosen to protect myself from FATCA and other intrusions of the U. S. government into my financial affairs.
After first learning about FATCA, I wasn’t sure if Credit Unions were somehow outside of FATCA’s scope. So, I first approached the experienced and well respected CEO of my local Credit Union with some questions about FATCA. Specifically, would Credit Unions be affected? His response was that he never even heard of FATCA (An aside-in June, 2011 a major international accounting firm released a worldwide survey of top level financial executives. The survey indicated that less than 1/3rd had heard of FATCA or had done much about it, if they had heard). The Credit Union CEO referred me to the head of the regional Credit Union Central. This person is one of the senior Credit Union executives in Canada. I was told that FATCA was something that had to be dealt with at the national level and he had no answers for me at present.
Subsequently, I learned that Credit Unions did come under FATCA and that strong representations were being made to the IRS.
I then moved on to the branch manager of a major Canadian Chartered Bank where I had some accounts. My questions were not about FATCA as such, but about their AML/KYC policies (anti-money laundering/ know your client). I was told what IDs I had provided the bank and what their procedures were for new accounts. The procedures were to obtain 2 pieces of ID, one of which was a photo ID. They would make copies of the IDs and then enter the kind of ID (driver’s license, etc) into their system as well as an identifying number on the ID, such as a driver’s license number. Most interesting was that after a few days, they would shed the ID photocopies. Just an electronic record would remain.
FATCA has several thresholds. Aggregate accounts under $ 50,000 are exempt from review. Accounts between $ 50,000 and $ 1,000,000 are subject to an electronic search. Accounts over $1,000,000 are subject to both an electronic search and a manual search. There are different rules for insurance policies, for example, but I won’t get into that.
It is important to note that the word Aggregate is important. So, if you have $35,000 in bank savings and chequing accounts and $40,000 in an account at their discount brokerage arm, you’ll be over the $50,000 threshold. I’m not sure how this would work with Credit Unions where a person has a Credit Union account and a brokerage account at Credential Securities. Credential is owned by provincial Credit Unions. Somehow, I don’t think the two would be aggregated, but I’m not sure.
Here are a few suggestions, most of which are quite obvious.
If you can’t remember what ID you used to open an account, you can probably still ask without arousing suspicions. FATCA information has likely not filtered down to most bank branch employees at this point.
Open accounts at other financial institutions to get yourself under the thresholds. Make sure any IDs presented have no indication of U.S. personhood, such as a passport with place of birth. Then transfer money to those new accounts.
I recently opened an account at an additional bank and there were absolutely no questions about place of birth. I believe a question about citizenship may have been asked.
If you have a brokerage account, sell any U.S. based investments. Having U.S. investments will likely lead to a request to complete either a W8-BEN or a W-9.
Consider buying physical precious metals and storing them in a safe place. It may not be the best investment partially because of the cost of both purchasing and selling the metals, but precious metals are a form of money completely outside of the banking system.
These are a few suggestions. I’m sure others can add more.
One special note. If you have an investment adviser, they may very well know where you were born. My experience is advisers usually try to learn something about their client’s background. It may just be idle chit-chat, but place of birth may come out. For persons inheriting money from US relatives, your origins might be self evident. FATCA refers to advisers as “relationship managers”. Under FATCA, It is the duty of the relationship manager to determine if they are dealing with a U. S. Person.
Any comments or corrections are welcome.