"FATCA compliance costs for the world's financial institutions are astronomical, and Canada's banks are hoping that the federal government will negotiate an intergovernmental agreement (IGA) with the Americans that would allow them to report data on U.S. citizens [Note: actually U.S. Persons] to Canada Revenue Agency, which in turn would send it to the IRS. The U.S., to facilitate this approach, has written a Model Agreement to be used as a template for these so called "bilateral tax' agreements.
"But a major obstacle to all this is Canada's Charter of Rights and Freedoms, which prohibits (Section 15.1) discrimination based on several criteria, including "national or ethnic origin.'
"In my opinion, the procedures mandated by the Model IGA are discriminatory in a way that would not withstand Charter scrutiny. These procedures effectively treat individuals differently, and adversely, based on an immutable personal characteristic, specifically citizenship. If Parliament were to enact legislation authorizing and permitting this type of differential and adverse treatment, the legislation would contravene the equality protections in section 15 of the Charter."
Professor Hogg's letter goes on to point out that Section 1 of the Charter allows governments to impose reasonable limits to Charter provisions, but then argues:
"" any argument attempting to use Sec. 1 to justify limitations on the equality rights would be extremely weak. The objective of ensuring compliance with U.S. tax laws is probably not important enough to justify breaches of the Canadian Charter, and even if it was " the measures contemplated (by the U.S.) are grossly disproportionate to the objective."
FATCA could affect four million Canadians, or 12% of the population: There are about one million people in Canada, the vast majority Canadian citizens, who have connections to the U.S. in one way or another, and who are claimed by the U.S. Government as "U.S Persons" subject to or impacted by U.S. tax laws, reporting requirements and penalties for failure. By the time family members, also affected by FATCA, are factored in, that one million number could get as high as 4 million people.
The "U.S. Person" concept is a very broad and complicated designation subject to change without notice and without Canadian input. It de-facto declares that U.S. personhood is supreme over Canadian residents even if they are Canadian citizens! In simple terms, U.S. citizenship (or U.S. personhood) trumps Canadian citizenship in Canada! It is not an "international norm'. It is an imperial assertion! FATCA, resting on the unnatural foundation of U.S. dominion over U.S. persons, impacts this non-exclusive list:
- "Accidental" Americans -- born in Canada to parents who are (or were) U.S. citizens;
- Americans who left the U.S. decades ago and thought they automatically relinquished their U.S. citizenship when they became Canadians;
- Americans who have migrated to Canada and obtained Canadian dual citizenship status and reside in Canada;
- Canadians who are permanent residents while still retaining U.S Citizenship status;
- Border babies -- people born to Canadian parents in the U.S. who came home as infants;
- Babies born to Americans while residing in Canada;
- Spouses of said U.S. Persons having joint accounts;
- Business partners with American U.S. Persons residing in Canada;
- U.S. green card holders who have returned to Canada to live;
- Canadian citizens and residents who have a "substantial presence" in United States, i.e. Canadian snowbirds;
- Companies/associations who have employees with "U.S. personhood' who have signing authority on company bank accounts.
Despite the American requirements for the reporting of financial records of these individuals, the term "U.S. person" has no legal meaning in Canada.
Many of the same FATCA concerns voiced by Hogg (as referenced above) have been raised by others.
First was MP Elizabeth May of the Green Party.
Now, more recently by Murray Rankin, the Official Revenue Critic of the New Democratic Party (NDP) in a September 2013 letter to Finance Minister Jim Flaherty.
Then, the Leader of the Opposition, Tom Mulcair (NDP), later upped the ante in a letter to voters, endorsing Rankin's stand and even mentioning the dreaded "S"-word: "sovereignty"!
Even more pointedly, another Party joined the chorus. Liberal MP Ted Hsu addressed to the Government detailed questions about the FATCA IGA, to which the Government is obligated by law to answer in 45 days.
A few days later, Liberal MP Scott Brison also added a different set of FATCA questions to House of Commons Order and Notice papers which again will require a response.
These questions include disclosing "which specific individuals and groups did the Minister of Finance consult regarding any IGA, and on what dates." We look forward to examining the details of the CBA's and your member banks' consultations with the Finance Ministry.