FBAR: On the impossibility of a fair trial for expats

For transporting us beyond Seas to be tried for pretended offences … Accusation against King George in the Declaration of Independence

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.   Article III, section 2, United States Constitution

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.  Sixth Amendment

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.  Seventh Amendment

I returned to Canada in 1994, finished my PhD in 1996, and began to work a little.  Eventually, my much more successful wife and I were able to come up with some savings:  RRSP, TFSA, investment accounts, etc.  It is a good life here in Canada, and that is nice, since I had a really late start.

Enter FBAR, a United States law that requires me to inform the Treasury of my bank accounts.  I’ve never filled one out.  What if the United States government wanted to fine me 50% per annum of  the balances in my bank accounts?  Do I not deserve a trial by jury of my peers in the district wherein the pretended crime was committed?  I seriously doubt that an Ontario jury would find me guilty of failing to file FBARs nor would it find that I had done anything deserving of fines payable to the Treasury of the United States.

According to the United States, I don’t have a right to trial by jury in the district where the crime took place.  The trial would have to take place in Washington D. C. in violation of my Sixth Amendment right.  I maintain that the “crime” of not filling out FBAR occured here in Ontario, where I have lived since 1994.  But the United States federal government has no courts here.  Nor is the United States able to compel a jury  to try me here.  I guess that ends the story.  To make me appear in Washington, would be the same as King George transporting colonists to Britain for pretended crimes.

In Washington, I would not get a fair trial.  Let’s face it:  what jury in the District of Colombia would ever take my side?  Their jobs and livelihood depends on the success of taxation and the laws associated with it.

So I propose to you this:  Against Americans living abroad, the FBAR law is not enforceable in a constitutional manner.  To enforce it, the United States would have to commit the same kind of tyrannies that the King of England perpetrated against the thirteen colonies:

The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.

13 thoughts on “FBAR: On the impossibility of a fair trial for expats

  1. I don’t understand. If the IRS wants Americans who live abroad, dual citizens and greencarders to join the FBAR program,why: 1 They did not advise them by every means and in advance about the program and 2. Why they are keeping them out by threatening such abusive penalties if they show up? It doesn’t make sense…

  2. Pingback: Do United States persons abroad differ substantially from residents of Washington D.C.? | The Isaac Brock Society

  3. Bharat
    Are you an expat from India? I am sure there are a lot of expats in Bangalore/Bombay and Delhi. How are they handling this mess?

  4. @Desi, I am expat. I was born in India worked for few years and moved back to India in 1995. I am in the process of filing back taxes and relinquishing US citizenship. It is a nightmare to collect data from banks due to poor computerization. Indian expats unlikely to owe any taxes, since US is tax heaven compared to India. Now little better, but just few years back one would be in 10% tax bracket over US$ 2.5k dollars and 30% tax bracket for making over US$6k. I could have got large tax refunds for child tax kids and tution fees. It is impossible to find a qualified adviser to file US taxes. Most people just ignoring or ignorant about FBAR. I myself came to know recently when I am in the process of regaining Indian citizenship to start a defense related business.

  5. Bharat,
    can you get the indian citizenship and then relinquish US citizenship or you need to first relinquish us citizenship to get the indian citizenship. you may be a OCI or a PIO now i think. As for qualified tax advisor’s in India i see kkassociates in pune. Have you interacted with these folks? Is there a way to reach you?

  6. @desi: You must give an undertaking under oath that you will relinquish all other citizenships when Indian citizenship is granted. Now I am in the process of gathering bank information and then contact some tax experts. I feel my taxes are straight forward by using taxes I filed with Indian income tax department. But getting bank statements for FBAR is a nightmare. Banks provide 16A forms for interest income, but I and my wife have signatory authority over our aging parents and their small businesses. My kids also have accounts as they received property and money from grand parents. Indian taxes are so high that I read somewhere some Indian expats accumulated over US$100,000 foreign income tax credit on form 1116 over few years.

  7. Bharat: There are so many who have inadvertently caught in this mess. I know almost all my friends have either invested in properties or had inherited some and most cases they cannot convert INR to USD due to the way the govt has currency controls. As for FBAR, since it is reporting, if you cannot get all the precise records but report a higher amount, you should be fine. Are there any CPA’s you suggest in India one could talk to?

  8. @desi: I am living in a remote part of India and learned about FBAR recently. So I am also looking for a good CPA to do my taxes for six years.

  9. @Petros pls search for and read any Canadian statutes or jurisprudence that have to do with Canadian recognition (and/or non-recognition) of foreign judicial judgements as well as those statutes or jurisprudence pertaining to interpretations of foreign judgements by Canadian courts.

Comments are closed.