Canadian #FATCA IGA Litigation Update: Court has fixed Monday January 28, 2019 as trial date

 

Canadian FATCA IGA Litigation

cross-posted from Isaac Brock Society

   by Stephen Kish

Now appears more likely that we will get to trial in January 2019 in our Canadian FATCA IGA enabling legislation lawsuit in Federal Court.

The Case Management Judge has just advised:

“The hearing of this summary trial motion shall take place before this Court at the Federal Court, 701 West Georgia Street, Vancouver, British Columbia, on Monday, the 28th day of January, 2019, at 9:30 in the forenoon for a maximum duration of five (5) days. The number of hearing days may be reduced depending on the number of preliminary motions.”

Other:

“The following timetable shall apply to the motion for summary trial: (a) The Defendant [Mr. Trudeau’s attorneys] shall serve her evidence (with the exception of one expert report) by April 16, 2018. (b) The Defendant shall serve her remaining expert report by April 30, 2018. (c) Notice of any objections to expert reports shall be served by June 15, 2018. (d) A case management conference shall be held, by teleconference, on July 12, 2018 at 1:00 pm (Eastern) to address any motion to strike affidavits. (e) All cross-examinations shall be completed by July 31, 2018. (f) The Plaintiffs [Gwen and Kazia] shall serve and file their complete motion record by September 28, 2018. (g) The Defendant shall serve and file her complete responding motion record by November 16, 2018. (h) The Plaintiffs shall serve and file their reply submissions by December 7, 2018.

March 22, 2018 Canadian FATCA IGA Litigation in Federal Court Update: New Timetable

Canadian FATCA IGA litigation

UPDATE March 22, 2018

The attorneys for our side (our side are Plaintiffs Gwen and Kazia, the Alliance for the Defence of Canadian Sovereignty — the “client”, and our supporters) and the attorneys for Mr. Justin Trudeau’s Government have just agreed on the timing for the next steps of our Canadian FATCA IGA lawsuit in Canada’s Federal Court.

It is always possible that the Court might change some of the dates but here is the new timetable:

— Defence [the Government] evidence, except one expert report, filed April 16, 2018;

— Last defence expert report filed April 30, 2018;

— Notice of any objections to expert reports provided by June 15, 2018;

— CMC to discuss scheduling of any applications to strike all or portions of affidavits in

— Cross-examinations completed by July 31, 2018;

Plaintiffs argument served and filed by September 28, 2018;

— Defence argument served and filed by November 16, 2018;

— Plaintiffs’ reply served and filed by December 7, 2018;

Hearing the week of January 28, 2019, subject to the Court’s availability.

The key update is the hope/expectation that the Federal Court hearing will take place in January 2019.

Since the beginning of our lawsuit, many, many Canadian citizens (we have not been provided with the numbers) have been rounded up and turned over by Canada CRA to the United States IRS.

Yes, I know that our litigation has been moving at a glacial pace. Sorry…

Taxation of #AmericansAbroad in the 21st Century: “Country of birth” Taxation vs. “Country of Residence” Taxation- Part I

 

cross-posted from citizenshipsolutions by John Richardson

Update January 2018: This post has been updated with some new links and discussion.

Prologue – The “Story Of The Century

Since July 1, 2014, the United States via threats threats of the FATCA Sanction, has begun a “world wide hunt” for people born in the United States
(or are otherwise deemed to be “U.S. tax subjects”). A compilation of my posts describing the mechanics, effects and costs of FATCA and the FATCA IGAs is available in “The Little Red FATCA Book“. FATCA has spawned litigation against both the U.S. and Canadian Governments. A discussion of the “Alliance For The Defense Of Canadian Sovereignty” FATCA lawsuit against the Government of Canada is available here. Some thoughts on the “U.S. FATCA Legal Action” lawsuit against the U.S. Government are here. Both lawsuits have been vigorously defended by the respective Governments. The U.S. lawsuit may have reached the end of its viability (lack of standing and various procedural issues). The Canadian lawsuit continues.

With respect to those “Born In The USA”, the U.S. legal “claim of tax jurisdiction” is two-fold:

1. Those born in the United States (unless they have relinquished U.S. citizenship” for both tax and nationality purposes) are U.S. citizens.

2. Citizens of the United States are subject to the provisions of the Internal Revenue Code regardless of where they live in the world. The Internal Revenue Code (“IRC”) includes but is not limited to the obligation to pay taxes according to U.S. tax rules. The “IRC” also includes a wide range of “penalty laden reporting requirements“. The “IRC” also strongly discourages (through penalties and sanctions) participation in non-U.S. pension plans, non-U.S. investments (including non-U.S. mutual funds), the use of “non-U.S. business corporations” and (incredibly) non-U.S. spouses. (Even the divorce of a U.S. citizen and non-citizen is likely to be significantly more expensive.) As a result, the “extra-territorial application of the “IRC”) has the effect of exercising U.S. “control” over the lives of it’s citizens who do NOT live in the United States. Therefore, it is clear that the “extra-territorial” application of the “IRC” both (1) imposes the full force of the “IRC” on the resident/citizens of other countries and (2) has the effect of imposing the U.S. cultural values mandated in the “IRC” on those other countries. One can identify a list of the “10 Commandments” which are imposed on Americans abroad in an FBAR and FATCA world.

(Note that with the exception of U.S. citizens and “permanent residents”, as per Internal Revenue Code Sec. 7701(b), an actual physical connection to the United States is required to establish U.S. tax residency.)

As the article referenced in the above tweet makes clear, many people “claimed” by the United States as “tax residents”have never had any connection to the United States except that they were born there. The article includes:

Awad Al-Zahrani, whose son has US citizenship, said he would give it up.

“My son got the passport since he was born there while I was studying in the country back in 2000. At the time, the Saudi embassy had told me that it would not be a problem for him to hold two passports. Now that we have to pay taxes, though, we’ll be giving the US passport up.”

Abdulrahman Al-Habib, head of journalism studies at KAU, argues that Saudis who were born in the US should be exempt from paying taxes.

“We should establish a unified center to help Saudis clear their former tax registers,” he said.

US Consul-General Todd Holmstorm,however, confirmed that US citizens should pay income tax and called on their international counterparts to help them eliminate tax evasion.

“The tax law is designed to combat evasion through increasing transparency in the financials of US taxpayers,” he said.

Mr. Holmstorm’s bio indicates that his career has had a Canadian connection in Ottawa, Canada. His comments in the above article imply that he believes that those (1) born in the U.S. who (2) do not live in the U.S. and (3) do not pay taxes to the U.S. are guilty of “tax evasion”. Strong language indeed. Yet, these are his words which clearly reflect the attitude and policy of the U.S. Government.

 
 

October 29, 2017 Canadian FATCA IGA Legislation Litigation Update: Government delay in obtaining their expert witnesses

cross-posted from the Isaac Brock Society

by Stephen J. Kish

OCTOBER 29, 2017 CANADIAN FATCA IGA LITIGATION UPDATE:

Our trial on Canada’s FATCA IGA legislation in Federal Court will now be delayed further because Mr. Justin Trudeau’s lawyers are having problems obtaining their expert witnesses (our side’s experts have already filed affidavits).

The problem is that Government’s contracting/procurement process is not functioning as it should, and Government is having difficulty establishing the necessary retainer contracts for each of the experts they wish to use.

The hoped for time frame for the experts contracts is now end of November; however, Government experts want at least 12 weeks to prepare their affidavits.

I can’t give you a firm date yet on the trial, but speculate that trial might take place sometime early summer 2018.

Each year more and more Canadian citizens are rounded up and turned over to a foreign country

Anti #FATCA BRIC nations building political clout and alliance

 

We all spend tons of time wondering what individual effort might bring down FATCA. Will the Congress come to its senses and pass the Meadows/Rand bills to repeal FATCA? Will Nigel Green & Jim Jatras achieve a lobbying miracle? Could it be possible that the Appellate Court will come up with a different finding than Judge Rose in the “Bopp” case? Or will the Canadians be successful in striking down their IGA with other countries deciding they will do the same? Will the Treasury Secretary indicate that #AmericansAbroad are exempt from FATCA? Or somehow Treasury changes its mind and allows for Same Country Exception?

To the best of my recollection, when the post below was published NONE of the actions mentioned above had started. If somebody had predicted any of them (never mind all of them), I expect we would have thought they were nuts. It has seemed so overwhelming and so hopeless from the start. Yet we fought back from the very beginning, starting simply at first; researching information and making decisions on our own terms, being unwilling to just follow blindly what we were told by the IRS, the compliance community and so on. Little by little groups began planning how to approach their ideas of taking the battle to the next level. Everyone should be proud that so much has been done under such dire circumstances, the expat grassroots movement is alive & well!

Of course, there are always other currents flowing alongside all that is happening and usually the best results are the ones that are not planned per sé but come about as the interplay of all the factors as they work themselves out. Clearly, one of the most powerful would be the demise of the U.S. as the world’s biggest bully, police officer and holder of the most powerful reserve currency. Of course many Western business/financial leaders dismiss this idea as pure folly. Impossible they say. However, look at the bank collapses of 2008. Would financial officers not have reacted the same, “Impossible” ?

Did we not react the same when we first started out? Impossible ?

There is reason to believe the BRICS nations might well succeed at creating a system that can bypass what the U.S. currently “owns”; the USD as the world standard reserve currency.

This will be the first of a few posts regarding BRICS. We truly may be witnessing the fall of the American Empire and the rise of a new ruling entity.

*******

Originally posted on the RenounceUSCitizenship blog March 24, 2013

 

Earlier this year I wrote that “Peaceful resistance to FATCA will result in a new financial order“. An article by Geoffrey York of the Globe and Mail suggests this may be starting to happen.

The article is well worth reading.  Note the following commentary and excerpts:

Continue reading Anti #FATCA BRIC nations building political clout and alliance

May 13, 2017 Canadian Federal Court FATCA IGA lawsuit update: Motion for Summary Trial now submitted

“…The government of Canada has a responsibility to stand up for its citizens when foreign governments are encroaching on their rights…We believe that the deal reached between Canada and the U.S. is insufficient to protect affected Canadians…” June 2015 Pre-Election statement of Mr. Justin Trudeau (now Prime Minister of the Government we are suing) to a constituent

May 13 2017 Canadian FATCA Litigation Update:

SUMMARY TRIAL MOTION has now been submitted on Constitutional/Charter issues. We are finally moving closer to trial and our Vancouver litigators have now served and filed in Canada’s Federal Court a “Notice of Motion for Summary Trial”.

As detailed in this brief motion (see link) this is a pleading to the Federal Court of Canada for a summary judgement we are seeking on the Constitutional-Charter issues.

We argue in the motion that the Canadian legislation enabling the FATCA Intergovernmental Agreement (IGA) violates Canada’s Constitution Act (by forfeiting Canada’s sovereignty and facilitating the extra-territorial enforcement of a foreign state’s taxation and tax compliance regime on Canadians) and Canada’s Charter of Rights and Freedoms (Sections 7, 8, and 15).

There is this statement in the Motion:

“The contours of United States citizenship and the definition of US Person are matters of United States law and/or policy and are subject to be changed by the United States at any time.”

There is also this:

“It is a principle of international law that every sovereign state has the right to conduct its affairs without intervention by other states (the “Principle of Non-Intervention”). The Principle of Non-Intervention is at the core of the international legal order and is a corollary of every state’s right to sovereignty, territorial integrity and political Independence. The Principle of Non-Intervention is an element of the unwritten constitution.”

Will the Federal Court of Canada accept this Constitutional argument?

This motion is NOT the main, detailed legal submission (i.e., where all of the case law is discussed, etc.) which will be filed much closer to the hearing date (yet to be decided).

AFFIDAVITS. You will notice on pages 22-23 a long list of affidavit titles. Because of a technical issue related to the litigation, it is not possible to publish the text of these affidavits at the present time.

Some of the affidavits include those we previously submitted and those Government submitted – which we feel will help our case.

There are also expert reports from three witnesses (Ryan Liss, Roy Berg, Kevyn Nightingale) who were selected by our litigators to provide an expert opinion based on our litigators’ assessment of their expertise and experience.

In addition, there are affidavits listed from lay witnesses.

Our litigators made a strategic decision on the selection of specific lay witnesses for the trial from the larger group of volunteers. I thank the lay witnesses and all witness volunteers for their courage and commitment to push for return of Canada to Canadians.

LIKELY NEXT STEPS. On May 19, 2017 there will be a teleconference with Government, Case Management Judge, and our side to deal with the Government Motion to compel further documents from the three plaintiffs (we oppose the motion).

After the ruling, Examinations for Discovery of the three expert witnesses and the plaintiffs will be scheduled and conducted. Our lawyers will likewise examine the Attorney General’s witnesses. It is also possible that the Attorney General might examine our lay witnesses. We currently do not know if they will elect to do so.

Upon completion of the all examinations of the parties, and after filing all required submissions, we will await a trial date to be set by the court. Trial dates are dependent on the availability of Justices and court (backlog) schedules.

I know that the slow pace of our litigation is frustrating. Thank you for your continued support and kind thoughts.

Stephen Kish

Continue reading May 13, 2017 Canadian Federal Court FATCA IGA lawsuit update: Motion for Summary Trial now submitted

UPDATE: Canadian Charter Trial Moves Forward…..Slowly

 

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cross posted from the Isaac Brock Society

This is an update on our Canadian FATCA IGA lawsuit — just to let you know that the lawsuit is alive and is moving forward, slowly.

Today our litigators and the Government attorneys met with a Case Management Judge to resolve differences.

The good news is that we now have permission from the Case Management Judge to file a motion for the Charter-Constitutional trial and provide our evidence in support of the motion. Government will also file a motion, for which we have 28 days to respond, on an issue in which there is disagreement between our side and Government.

Once that Government motion and our response is sorted out, there will be another Case Management Conference to resolve remaining issues prior to trial and to schedule the hearing.

— I am sorry, but we do not yet have a trial date in 2017, and I will keep you informed on developments.

Thank you for your patience. By now, we all know that litigation against Government does not move quickly.

Finally, I want to thank the brave Plaintiffs and Witnesses for their courage: They make our lawsuit possible.

Stephen