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Tuesday, October 7, 2014

Lee and Bopp: A Chance to Turn the Tide

"There is a tide in the affairs of men.
Which, taken at the flood, leads on to fortune;
Omitted, all the voyage of their life
Is bound in shallows and in miseries.
On such a full sea are we now afloat,
And we must take the current when it serves,
Or lose our ventures."

William Shakespeare, Julius Caesar, Act 4

Bright and early Monday morning, Senator Mike Lee and superlawyer James Bopp, Jr. addressed a full house of frustrated and forlorn US citizens over at Reid Hall in Paris.  Some came in suits, some in jeans. There was a very young woman with blue streaks in her hair and men whose touches of gray were a testimonial to a lot of living.  There were lawyers, stay at home mothers, IT workers and artists.  A diverse group that was far more representative of the true face of Americans abroad than the usual caricatures of champagne-sipping yacht-owners living it up in Gay Paree.  It was coffee and croissants and a frank discussion that at times was fraught with emotion. 

Senator Lee spoke first and he began with some anecdotes from the time when he was first elected to the Senate.  He's a young man with a quiet and modest demeanour.  He recounted how in the very beginning he had moments where because of his youth and appearance he was taken for something other than a member of that august body, the US Senate, and how he finally had to quietly but firmly assert himself as the elected-by-the-people junior Senator from Utah.  He invited us to laugh with him and we did. But the funny stories took a very serious turn when he shared the lesson he drew from that experience: "We must assert what is rightfully ours," he said, "if it is to have any meaning."  

US citizens wherever they live, he said, have constitutional rights that cannot be taken away by anyone.  

And how can the Senator say such a thing with so much conviction?  Because he was an American abroad himself.  Because his mother was born in Europe to two expatriate American citizens. Because he has a son abroad today.

With great candour he explained that FATCA was part of a larger bill that most US lawmakers probably didn't read and surely barely understood before they voted on it.  Furthermore, there was no real political risk to them - no chance that they would lose their seats by attacking Americans abroad, a population little-known and slightly threatening to people in the American homeland.  In light of what has happened since it was passed (the citizenship renunciations and the widespread discrimination it has brought to US citizens abroad), it should be repealed, he said, and that's not a liberal versus conservative, or republicans versus democrats issue; it's an American issue.  "I will fight until it's done," he assured us, and, "While you can't vote for me, I can vote for you."

Mr. Bopp then took the floor and with quiet precision he laid out the case he is preparing against FATCA and the hated FBAR (renamed the Financial Crimes Enforcement Network Form 114), the latter of which he rightly noted, is based on the assumption that Americans abroad are all tax cheats and simply can't be trusted.  FATCA, too, is all about stopping the, as John McCain said, "illegal activities" of the American population abroad.  The fines for non-compliance are clearly excessive, he said, and noted one case where an individual caught in the dragnet ended up paying 150% of the value of the non-reported account. 

Americans have rights, he noted, under the US Constitution.  Government must make an "individualized determination and (have) probable cause" to go after people it believes are violating the law.  FATCA and FBAR are nothing more than "fishing expeditions" and while the US IRS does have some leniency in this area, this is "off the scale" and he believes that US courts will strike them down.  And all this, he said, to enforce a system of citizenship (not residence)-based taxation which results in "adverse and differential treatment" against Americans abroad.

As for the IGA's  (intergovernmental agreements to implements FATCA in foreign countries) there is a serious question about their legitimacy on the US side.  Agreements with foreign countries normally require the "advice and consent" of the Senate - something which was not done.  Attempts to pass them off as "pre-authorized" or as "sole executive agreements" are questionable because the latter is normally only used for "routine, non-substantive, administrative matters" and it's quite a stretch to consider the FATCA IGAs "routine".

There will be substantial litigation, he said, and a tenacious defense of FATCA.  Already, just after the news of the lawsuit and the Republican National Committee resolution against FATCA and for RBT, they were accused of lining up with the "Fat Cats" abroad;  Bopp noted jokingly (and a bit ironically)  that he was so pleased to have finally met us in person, in this room in Paris this morning.

In answer to one of the first questions asked by the audience about the seriousness of this effort and if we can believe that they will indeed follow through, Bopp replied that he was very serious about  it and that his reputation to a certain extent is on the line here.  Yes, he said we will carry on regardless of what happens in the mid-term elections.  They plan to file the suit 30-60 days after the end of this tour of Europe. 

That is the substance of their remarks from my copious notes and I hope I have done them justice here.  My personal take on it is that I found them to be entirely credible - non-partisan, thoughtful, clear, and with a surprisingly good understanding of just how bad things have become for America's little-loved communities abroad.  

Let's be brutally honest here:  we are already in the shallows, and we are losing this fight, folks.  All attempts to work within the political arena in the US have come to nothing.  All the proposals, from revising the tax code to mitigating FATCA, have not moved forward as far as I can tell. (And, if that's not true, then I invite those who are working on these things to explain in detail where they are right now in their efforts, and if they have made more progress behind the scenes than is apparent to those like me who read their press releases.) 

I believe it is past time to go from influencing and educating to asserting what is rightfully ours. The alternatives are so ghastly as to be unthinkable for so many of us:  more discrimination, financial ruin, and second-class citizenship - a people with rights that are so eroded that our US citizenship is rendered meaningless in any case,  and renouncing becomes the only viable solution to what ails us.   

That is where I see us headed if we don't stand up and fight.  I honestly think this is the best chance (perhaps the only chance) we have along with the Canadian Charter Challenge.  We can continue to be isolated little corks bobbing on the sea at the mercy of the political winds and wishfully hoping that somehow our pleas will move the exalted to be merciful, or we can get in the boat and start rowing with a current that is trying to take us to a better place.  

(And I could care less who got to name the damn boat.)

And if we fail? 

Well, we will have tried and that is good enough for me.

"There is a tide..."  


Senator Lee and James Bopp are asking for support.  If you want to make a donation (and I will) you can do so here:  FATCA Legal Action.  The entity that is collecting this money is a 501(c)(4) organization and the money can only be used for the lawsuit and lobbying against FATCA.  For those of you who are concerned that it will be diverted to other causes or to support Republican party efforts in the US, that would be an illegal use of that money and get them in a heap of trouble.  So I think we can safely lay those fears to rest.

And if I may, I'd like to ask you to do one more thing:  get out your phone book or your email contact list, and tell as many Americans abroad and at home about this effort.  Spread the word and the link by all means possible:  Facebook, Twitter, email, snail mail, phone calls, skype.  If every American abroad reaches just a few people with the news and asking them to, in turn, tell their friends, family and any American organization they belong to locally, we can send this news around the planet, and reach as many people as possible.


Inaka Nezumi said...

Inspiring, Victoria. It must have sent chills to have a sitting Senator, one of those in power, look at one, state they understand your problems, and vow to help. I wish I were in his constituency so I could vote for him.

As it is, the incumbents in my old district have completely ignored my repeated questions about CBT and FATCA. Taxation without representation, anyone?

Inaka Nezumi said...

I've also donated to the Canadian courts challenge, plan to donate to the Bopp court challenge, will continue to agitate through whatever political channels are available to me, and will of course wield my solitary vote with extreme prejudice.

In the end, there is always the "nuclear option" of relinquishment/renunciation. But I will go down fighting before, and even if, it comes to that, for the sake of my kid, and for others who may not be in a position to fight back.

Anonymous said...

Did the hike in the renunciation fee come up?

Anonymous said...

Renunciation fees did not come up.

However, the presentation was very personal.

Both individuals were very professional, yet held the same expectations of fairness and understanding of unfairness as many of the "dissidents" have.

The difference is that they have the constitutional toolbox in hand to address the issues as only we can request them to be addressed.

Whilst their language was more in line with their positions, their thoughts about the unfairness of this shone through as to be similar to our own.

I was there.

Anonymous said...

How utterly refreshing and inspiring to read what was said in this meeting! Three years into this "fight, we desperately need the unexpected support of this junior Senator from Utah who can understand what it is to be an American in this horrid situation. From first-hand experience no less, who would have expected such a gift! "While you can't vote for me, I can vote for you.” After years of listening to Douglas Shulman, Carl Levin, Chuck Shumer and all the rest, these are words to be cherished.
"Americans have rights...under the Constitution." What a state things have come to when such a simple truth can possibly be questioned, let alone acted upon with the callous disregard the US Congress has exhibited. Were we not taught, that this is what made our country ot only different but better than any other in the world?
Superlawyer James Bopp, Jr. It doesn’t get any better than that! Just love his comment about the ‘fatcats.” If any photos were taken of a cross-section of the audience, could make great PR to counter such nonsense.
Thanks for your thoughtful account of this meeting. Up until now, I had no real sense of connection to the fact that a serious threat to FATCA is about to be mounted in the US. I am now just as excited about this case as I am for our Charter Challenge here in Canada. Feeling the momentum of your statement : “or we can get in the boat and start rowing with a current that is trying to take us to a better place.” Time for folks to do more than read and comment on the blogs, to get involved, support these efforts with real action. Hopefully, our actions will pave the way for more from those in Europe, Australia, Asia and everywhere.

Victoria FERAUGE said...

@nezumi-san I had exactly that feeling - I wished I could vote for him. My reps in Washington state were sympathetic but clearly not going to do anything. Thank you for contributing to the Canadian lawsuit. This one is vitally important, too. Perhaps it will all come to naught we will go down but we will go down TOGETHER!

@anonymous, It did come up very briefly at least once. I remember it because Bopp said something and the woman next to me interrupted him to say "It went up 422%. 422%!" She was steaming mad but spoke too softly I think.

@Tricia, I agree - heady stuff and a balm to the soul.

Anonymous said...

Victoria, may be you can get on Talk show like Coast to Coast AM and telling George Noory about this FATCA mess. Average Americans are clueless about this law but they listen to Coast to Coast.

LKY said...

oliviadog said...

Thanks as always!

Rosy the Riveter said...

You might like to see one reason why this stupidity was voted. Remember it was inserted into the HIRE Act, NOT directly into the tax code. Did any "Congresspeople" actually READ the thing ? Enjoy and spread !

AtticusinCanada said...

I am so pleased to read this report from you, Victoria! It's encouraging to know that this is all happening and that they are serious about this at long last there is some movement though the road ahead is long too at least we are being heard.

My CLN arrived yesterday. My family no longer had the funds for me to wait this out as you know and I simply had a spouse who was not going to have his banking informatin "shared" with U.S. agencies when he is not now nor has he ever been American on no suspicion of any wrong doing and without a warrant even! To him that entire idea was outrageous.

Three years ago I found out about FATCA. It seems that back then the response to any outcry was to tell you that you were a tax evader, and to not let the door hit you on the way out. Things have changed a tiny bit. This meeting is clear evidence of that. I'm going to keep fighting this despite having to give up my citizenship based on the fact that this is simply harmful and wrong, wrong, wrong.

Victoria FERAUGE said...

@Anonymous - Great point. We need to work the media more (though we are light years away from just a few short years ago when we tried to spread the work and were treated like cranks). Interviews are good, hometown newspapers too. I submitted stuff to The Seattle Times but no dice.

@LKY - Thank you and note the tax evader meme that crept in there at the end of the Lu article. The other with Nina's comments, that was really well done of her.

@oliviadog - You are most welcome. Thank you for coming over and reading.

@Rosy - will check out the video today.

@Atticus - I was reading somewhere that all tragedies have time (not enough of it) as a common element. Nina says that FATCA is too complex and moving too fast and the problems will only come to light too late.

But by the time they figure that out and for all the people who see it coming or are living the consequences, they are either out of time or close to it.

So whatever anti-FTCA/CBT initiative you, me, we support, it is essential that we push for information. We need goals, dates and credible progress reports. This is REALLY important. We want so much to believe in these efforts and that makes us vulnerable. We need to keep our wits about us and take the measure of these efforts constantly.
There is not nearly enough accountability asked of those who say they are our voice. This is another area where we need to assert ourselves. My .02.

Anonymous said...

Also read:

Ozma said...

I thought perhaps I'd share my little blog post on the meeting as well. I'm that girl with blue in her hair. :-)

Anonymous said...

I vaguely remember reading something somewhere about a little war a couple hundred odd years ago where this one group was upset about 'taxation without representation' by a country half a world away.

It is interesting that the US is the ONLY (significat) country in the world that taxes their citizens world wide... in countries half a world away, without representation. Odd, no?