The case of two US-born Canadians against the Canadian government for its role in enabling the US to come after them by agreeing to enforce FATCA ended earlier this month in Vancouver. As both sides await a verdict , once thing is certain: an appeal will ultimately follow, "no matter who wins."
The plaintiffs claim Canada's intergovernmental agreements (IGAs) with the US, in which it undertook to implement the provisions of FATCA against Canadian residents, are a breach of its constitution.
The Canadian government has shared more than 1.6 million Canadian banking records with the US Internal Revenue Service since the start of a controversial information-sharing agreement in 2014, CBC News reports.
There were potentially severe consequences to the Canadian financial sector, its customers and investors, and to the Canadian economy as a whole if Canadian financial institutions were unable or unwilling to comply with FATCA"
FATCA requires financial institutions to identify clients who are US taxpayers, and to report their financial accounts directly or indirectly to the US Internal Revenue Service (IRS). Canada's IGA is of the Model I type, under which Canadian banks will report the affairs of their US clients to the Canada Revenue Agency (CRA), which then forwards the information to the IRS.
According to the Alliance for the Defence of Canadian Sovereignty (ADCS), which brought the case on behalf of Gwendolyn Louise Deegan and Kazia Highton, the Canadian federal government has abrogated the Charter of Rights by forcing disclosure of their private affairs to a foreign government without due cause. Both are Canadian citizens who were born in the US but have lived in Canada since infancy. At least one of them, Deegan, does not even have a US passport.
The Canadian government's defence is one of necessity: that that it had no choice but to make an agreement with the US, because of the serious financial repercussions if it did not. FATCA imposes a 30% withholding levy on all payments from US institutions to foreign countries that do not cooperate in enforcing the FATCA reporting rules.
"There were potentially severe consequences to the Canadian financial sector, its customers and investors, and to the Canadian economy as a whole if Canadian financial institutions were unable or unwilling to comply with FATCA," wrote the government in its submission to the court.
"Canada sought to avoid those consequences and at the same time obtain less burdensome compliance rules for Canadian financial institutions and their customers, and additional information from the United States for Canadian tax compliance purposes."
The Alliance for the Defence of Canadian Sovereignty (ADCS) said an appeal would ultimately follow, "no matter who wins".