Canadian Sovereignty at risk, particularly for those considered to be American persons for taxation purposes
An organization called the Alliance for The Defense of Canadian Sovereignty is challenging a Canadian law that implements FATCA. The organization claims that the Canadian law violates the Canadian Charter of Rights & Freedoms, particularly the provisions related to discrimination on the basis of citizenship or national origin. This is not technically a direct opposition to FATCA — as the United States Congress has no legislative authority over Canada — but is instead an opposition to the parallel Canadian federal legislation.
On August 11, 2014, in an action supported by the Alliance for the Defense of Canadian Sovereignty, two Canadian citizens filed suit in the Federal Court of Canada challenging the constitutionality of the Canadian law that implements FATCA in Canada. Both of the citizens were born in the United States, with at least one Canadian parent, but they returned to Canada in childhood and have had no residential ties to the United States since that time. They state that this would result in them having U.S. indicia, and therefore being discriminated against by Canadian banks. On August 12, 2014, Canadian government spokesman Jack Aubry defended the constitutionality of the legislation, but otherwise declined to comment on the pending litigation.
A Canadian Federal Court ruling would not involve jurisdiction over the relationship of United States citizens with the United States Government, but would affect those individuals’ rights as Canadians. Such a ruling would therefore be a finding of unconstitutionality as a matter of Canadian Constitutional law, as to the two litigants. It would allow a remedy under Canadian law, but would not relieve them of their responsibilities to the United States under FATCA, as United States citizens. Thus, such a ruling would not remove the effect of the provisions of FATCA on U.S. citizen-taxpayers, no matter where their bona fide non-U.S. tax home is located. However, a Human Rights Complaint submitted to the United Nations, by members of The Isaac Brock Society and Maple Sandbox, that the U.S. system of taxation, and requirements, compliance reporting, and excessive penalties therewith, of its citizens tax resident in other countries including taxation of their income and assets in those countries, represents violation of their Human Rights. This complaint is suggestive that such taxation violates the IRS Taxpayer Bill of Rights provision #10 “The Right to a Fair and Just Tax System.”
On October 7, 2014, the legal claim by the Alliance for the Defence of Canadian Sovereignty was amended to include the allegation that the FATCA IGA and enabling legislation are in violation of both the Income Tax Act of Canada and the Canada U.S. Tax Treaty.