TD Waterhouse FATCA Privacy Waiver Form

We have the smoking gun right here. I believe the fact that TD is now publishing this document is enough to now start making formal complaints to the Privacy Commissioner’s Office both in Ottawa and her provincial counterparts. If the Privacy Commisioners office won’t do anything then I believe the courts are now an available avenue. Lawyer up as they say. It might also be worthwhile to forward this form to the lawyer I recommended several months ago for his take.

http://www.tdwaterhouse.ca/products-services/investing/documentation-index.jsp

http://www.tdwaterhouse.ca/document/PDF/apply/forms/tdw-apply-forms-591856-di.pdf

I believe that by publishing the above linked form TD is now in VIOLATION of Canadian law and is now subject to whatever legal action IBS members want to throw at them. (Note: there is no definition at this point of who exactly even is a US citizen and I suspect many of us don’t even consider ourselves to be ones in our own minds).

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43 thoughts on “TD Waterhouse FATCA Privacy Waiver Form

  1. That waiver is disgusting. It is basically saying “Sign this so that we can be protected from prosecution whilst we openly break Canadian privacy laws”. I would never sign such a document nor fill in the W-9 form, and would be especially outraged to be asked to fill that in if I were a Canadian citizen.

    The US rightly wouldn’t lift a finger to help somebody with dual Canadian-US citizenship should he or she find themselves in legal trouble, since in this instance they recognise the right of dominant nationality. A Canadian citizen living in Canada is a Canadian exclusively – Not a “US person”. Bring these scoundrels to court.

  2. I would also start forwarding this form to as many MP’s as possible. In a weird way I actually view finding this form as positive thing we now know roughly what they are asking for and have something tangible to put in front of Canadian MP’s(Contact your provincial MLA’s, MNA’s, and MPP’s who play a big role and regulating privacy law too) and judges as proof of FATCA’s existence and if we move quickly we can cut this off as matter of Canadian law before it gets any further.

  3. @Tim
    ‘Canadian and other non-US citizens must provide a Social Insurance Number and a copy of one of the following pieces of identification: Valid Passport, Driver’s License, Birth Certificate, Government Issued Age of Majority card’
    I might be misunderstanding the above TD requirements. However, if you are a Canadian citizen, it looks like you can open an account at TD with the ID listed above. A driver’s license does not have a place of birth on it.
    I believe the Canadian banks have always had any investors with U.S. source income sign a W-8Ben which states on it that “they are NOT to use this form if they are a U.S. citizen or other U.S. person”. Those investors who are perhaps only U.S. persons or dual citizens of both countries have always been expected to file a W-9 if they held U.S. source investments in their accounts. So I guess I am saying, I am not sure what is posted above is any different.

  4. I have a question:
    Was it a breach of Swiss privacy laws for UBS to provide the names of their US customers to the IRS?
    Yet, they did it in response to the John Doe summons issued by the IRS. Why were they required to do it if it was a breach of their privacy laws?
    And in this case, their customers did not even sign documents similar to the ones that are on the TD web site.
    The same thing happened to HSBC in India. In this case, it really proves that the IRS is going after Indian immigrants, as it is well known that they are family oriented and send lots of money back home.

    If the IRS issued a John Doe summons to TD, would they be required to provide such information to the IRS if it broke Canadian privacy laws?

  5. @tiger

    There has never been a requirement to waive Canadian privacy law before. Go to other banks you don’t see this type of form. Also in the waiver you are giving them the right to give information on Canadian source income too. This is not allowed under Canadian privacy law.

  6. @Christophe

    All the information the US got from UBS was under the information sharing provision of the US Swiss tax treaty. UBS never sent anything directly to the US. The US tried to bring court action directly against UBS but gave up. There is an old court case from the 1980s that deals with this very issue under Canadian law.

    @tiger

    I agree that the release of such information by TD Waterhouse to the IRS shall not be considered a breach of any
    duty of confidentiality owed to me by TDWaterhouse. In connection with the requirements and regulations
    established by the IRS, I hereby acknowledge and consent to the disclosure to the IRS by TD Waterhouse of
    information concerning income, tax withholding, tax information and related material with respect to all sources
    of income received by me in my TD Waterhouse account(s).

  7. @Christophe

    In terms of a John Doe summons it would probably depend on whether you could get a countervailing court injunction in the other country. My sense is in the past the US has backed down when faced with a directly countervailing court action.

    @tiger

    This form is a definately a “change” and I think this might be the time to draw a line in the sand so to speak.

  8. @Tim
    Thanks so much. Now I get it. This brain of mine is definitely showing signs of age, most especially after a night of little sleep. So to make sure I really do get it, they are now asking any customer (who is a U.S. person) to waive their privacy rights and allow TD to report income earned on all of their investments to the IRS.
    If TD has already done this, I would think it is just a matter of time (and not much time) before all Canadian banks do the same thing. After all, most of them have a fairly large presence in the U.S.
    As I said on another thread recently regarding our government “The silence is deafening”. Why are they not coming forward? It almost seems like our federal government is going to allow the banks to do whatever they want to and they will leave it up to individuals to sue if necessary.

  9. Thanks for posting Tim. Although I’m alarmed, I do think Canadian citizens and citizens of all countries other than US are exempt–even if they are also US citizens, based on this
    :
    “Canadian and other non-U.S. citizens must provide a Social Insurance Number (SIN) and a copy of one of the following pieces of identification:

    * Valid Passport
    * Drivers License
    * Birth Certificate (if under 21)
    * Government Issued Age of Majority card

    If a SIN number is not provided, the documentation must be certified as true by TD Waterhouse or TD Canada Trust Branch personnel.

    U.S. citizens must provide a signed Form W-9 and Waiver of Client Confidentiality to TD Waterhouse along with all other signed new account application documents.”

    This is still clearly a violation of the rights of US citizens who are not Canadian citizens (get moving, those of you who have not yet done it!), but it seems to indicate to me that if you provide a SIN and a driver’s license, you do not have to reveal any information about a connection to US. The birth certificate is only to be used for clients under age 21, so it could affect young people, but not adults (Isn’t the age of majority in Canada 18–not 21?). That could be a problem, however, for RESPs and youth accounts. I’m also not sure how they are determining if someone is a Canadian citizen or citizen of another country. A SIN does not establish citizenship. You don’t have to present a passport. A driver’s license is also acceptable.

    My interpretation is a dual Canadian US citizen would not be asked to sign the waiver because they would present their SIN and driver’s license. End of story. In fact, couldn’t even a Canadian resident/US citizen present a SIN and a driver’s license, without revealing they are a US

    The real problem comes in the form. But, if someone has presented a SIN (which must be presented for opening any bank account anyone living in Canada) and a driver’s license, would there be any reason to be required to complete the form?

    I also understand this applies only to new accounts and not existing ones. But it could certainly be the beginning of a slippery slope.

  10. @tiger

    I believe they also want you to sign this form if a US Citizen even if you only have Canadian source income. What happens with US source income is if you don’t provide either form W-9 or W8-BEN is you get hit with a thirty percent witholding but up to now in either case you have never had to provide a privacy waiver.

  11. @Tiger and Tim: It looks like I was writing and posting at the same time you were, so I may have duplicated your comments.

  12. @Blaze

    My personal opinion is it IS a beginning of a slippery slope and is unprecedented for any Canadian institution to be asking for this information without Canadian government sanction. What if they were asking this of Chinese, or Indian, or Sri Lankian citizens. I believe if you could get a Canadian court to issue an injuction against TD you would “take down” FATCA and quite possibly citizenship based taxation in the process.

  13. There is nothing though in the actual account agreement dealing with citizenship or recalcitrance. I don’t get the sense that they can refuse to open an account for you if don’t provide a privacy waiver if you are a US Person(but they don’t come out and say that directly). For whatever its worth there is a bit of don’t ask don’t tell in this like gays in the US military.

  14. “In fact, couldn’t even a Canadian resident/US citizen present a SIN and a driver’s license, without revealing they are a US ”

    Yes.

  15. @Tim: Before I read your reply, I sent the links to my branch manager at TD Canada Trust. I included the fact “US person” has no legal status in Canada. I pointed out the backlash and outcry TD Waterhouse would face if they were presenting such a form to a customer who might be a “Chinese person,” “Russian person,” “Indian person,” “Iraqui person,” etc, and demanding permission to submit information to governments of those countries.

    On Friday, she was skeptical that FATCA would proceed or that TD would comply. In an e-mail earlier today, she said TD was still researching. I will be interested to receive her reply after she sees the TD Waterhouse links. I know Waterhouse and Canada Trust operate separately, but they are part of the same umbrella organization.

    I know TD Canada Trust is governed federally and falls under the Bank Act. Is TD Waterhouse under federal or provincial jurisdiction?

    I just had a reply from the Director General of Communications in Canadian Privacy Commissioner’s office yesterday. I will forward these links to her.

    I want my life back!

  16. @Tim
    TDWaterhouse wouldn’t let me be added jointly to my father’s account back in 2007 when he casually mentioned that I was born in the US. The TDWaterhouse rep was not asking anything about citizenship, etc. It was just my 85 year old dad rambling on about all of his kids. When the rep heard this, she said I would have to fill out a waiver and give my SSN. I told her I wouldn’t do that and I didn’t have a SSN. She said that she couldn’t add me to the account then. So we tore up the application. I think that it had to do with the QI agreement. I definitely felt like it was a “don’t ask don’t tell” situation but once my dad let the cat out of the bag, the rep had no choice. When I opened a TFSA in 2009, the application had that little footnote about US persons, I just ignored it and no one asked anything.

  17. The fundamental issue here is citizenship rights and equality. A Canadian court is going to have to decide upon this most like with discrimination laws. They may be able to stop you trading US stocks, but how about investing in the rest of the world?

    I’d have a punt at some sort of equality of citizenship issue.

    The sh*t will hit the fan when public knowledge of this issue becomes widespread rather than in niche blogs etc.

  18. My first message to IBS after much lurking. I’m a new immigrant to Canada from the States (got my PR in 2011, I can apply for citizenship next year). I’m just starting my life as a young working professional after grad school in Canada and after a long time of no money and no savings. I wanted to get a TFSA until I found out how hard it was for an ordinary US citizen abroad to report it. I was doing my first 1040 this year (almost NO income before that) and had naively thought I could stay US-compliant with little cost and effort.

    Here’s my experience:

    Frustrated my much of what I read at IBS and elsewhere, I simply marched into RBC, my bank, and asked them if they would ever send my information to the States. They already knew where I was from. The lady I spoke with seemed to have a flash of recognition of the issue, but firmly told me that Canadian privacy laws forbid sending the information to anyone other than the Canadian government.

    Having seen forms such as TDWaterhouse’s, I decided to test the waters by walking into branches of branches of major banks and ask lots of questions about TFSAs and RRSPs and other investments, and do everything short of actually opening it (not hard to fake, I am really interested).

    I wanted to see if they would discriminate against me to my face. My goal was then to complain forcefully as a real flesh-and-blood customer, not to change things but just to get them thinking that, yes, there is a discrimination issue here.

    No one asked me about my nationality upfront. I raised the question with TDWaterhouse (this was by phone actually) and with someone at a regular TD branch. They said if I was a US citizen I would have to sign a W-9 and a waiver of privacy.

    “But I’m a Canadian citizen” I fibbed, to simplify my case. “I want to be treated just like any other Canadian citizen. I don’t see why there should be special requirements for a Canadian who immigrated from a particular country.”

    “Of course” the representative replied. “The form is just to sent to the IRS for your taxes”, trying to play it down. But it made me angrier.

    “But that’s really my responsibility, that’s between me and the US. I’m a Canadian in Canada, I just want to be treated like anyone else, otherwise it’s discrimination, right? Imagine a special document for Canadians of Mexican origins, one for Japanese people, etc.” I used some arguments I’d heard at IBS.

    He backed down. “I think it’s more for people who actually live in the States”. I knew it wasn’t true. “Check with the branch”.

    At the branch and at BMO nobody asked me or raised the issue as I filled out my customer profile.

    At another bank, I asked and the investment manager said he had the same problem — he had American grandparents and had just become aware of the issue. We shared our horror at the concept of ancestry- and origin-based taxation. He said you can just open an account with your health card and SIN, maybe tacitly recommending a don’t ask, don’t tell approach. He assured my account info would not be sent to the IRS if I opened an account. He said that Canadian citizens have more protection from this than permanent residents.

    Are they lying? Why do the online applications demand it, but in person they don’t?

    I think I could have taken it all the way at any of these banks as a presumed Canadian. So I didn’t get the chance to get on my human rights and equality soapbox in person. I don’t want to take it further because I’m, afraid to actually open the accounts. I’m compliant with the US, and I haven’t decided what to do yet. For now, I’m not opening anything I can’t afford/manage to report myself or that I feel requires divulging more information. I’ve never done an FBAR because fortunately (or unfortunately, in my mind up until now) I never had more than a couple thousand dollars in my accounts all combined.

    I would be interested in taking this further if people agree with me that our Charter rights are being violated. I am however not willing to go public at this time and I have really no money to even talk to a lawyer. I wish everyone the best of luck with this.

    It feels good just to talk with someone about this. I’ve been alone too long with my thoughts on this. No one around me understands how the US could be doing this or that I’m not exaggerating. Canada keeps promoting the TFSAs everywhere, and I feel shut out as a second-class Canadian who’s missing the party.

  19. @vin-de-table
    Welcome to Isaac Brock and I hope you will continue to post. I know what you mean about ‘it feels good just to talk to someone about this’.

  20. @vin-de-table,

    First of all, welcome to Isaac Brock.

    Good for you on the excellent research project you’ve now shared, which is of significant interest to us for the ongoing discussion of discrimination by virtue of our US citizenship.

    I hope that time goes quickly for you until the time you can actually become a Canadian citizen and be better protected here in Canada. I’m sure you know by all the reading you have done on this site that you should be able to relinquish vs renounce!

    We hope you continue to participate — you’ve already made quite a contribution in your first comment.

  21. “My interpretation is a dual Canadian US citizen would not be asked to sign the waiver because they would present their SIN and driver’s license. End of story.”

    i agree.

  22. Over the last several months I’ve always said it’s going to boil down to citizenship. Here in the UK there are discrimination laws banning this practice due to origin or nationality. However nothing can be done until FATCA takes effect and someone become an injured party.

    My belief is that courts will rule to protect their own citizens (or in my case in the UK, EU citizens since we have the same rights as UK citizens), in favour of resident citizens. The IRS will have to resort to the treaty and manual data requests. Automatic information from FFIs will be effectively barred by court rulings. At that point it will be down to the legislature to change the law of the land to accommodate the US / IRS, but that may be difficult if the new law gets struck down again.

    The governments can go to the US and say “not us it’s our courts,” and resident-based citizens with non-US address will be exempted by foreign courts.

    So probably Homelanders with only US passports will ultimately take the brunt of FATCA and dual citizens will be able to turn back the clock to enforcement at the US border.

    All this of course does nothing to solve the US’s bigger problems and we’re simply pawns in this whole chess match between Republican / Democrats and the haves / have nots battle that is currently being waged in the US.

    The US needs ex-pats as “boots on the ground” and loses business every day because of its taxation non-sense. The US deserves everything it gets in future.

  23. I’m not sure if you can really make the “slippery slope” argument just yet, are RBC requiring this same information? TD through acquisition and expansion are now one of the top three retail banks in Manhattan through their TD Bank, N.A. subsidiary, so protecting their US relationships seems to be a given. I don’t know about the other major Canadian financial institution’s I think RBC owns a US retail bank too, do they all have major operations in the US?

  24. @WhoaIt’sSteve
    RBC most definitely has US holdings and I believe BMO also does. If TD is doing this, it truly is only a matter of time that all of Canada’s bank will be doing the same thing, with similar questions on similar forms.

  25. About 3 weeks ago I attended an FBAR/FATCA seminar sponsored by Democrats Abroad in Victoria. Thanks to my excellent education at the IBS website there was very little information presented by the accountant that I wasn’t already familiar with. However, from the deer-in-the-headlights expression on many faces and the barrage of questions from the audience it was obvious that many were just beginning to see that they had a serious problem.

    A couple of comments from the audience are of interest:
    – A woman stated that she and her husband were dealing with an officer regarding an account at RBC and were given a form to sign indicating they had no ties to the U.S. When they said that they were American citizens they were given a different form to sign. I don’t know the details of the form, but it sounded like it was intended to designate whether they were or were not U.S. persons.
    – The speaker asked if anyone had been questioned about tax compliance when crossing the border and one man stated that he had been asked by a border guard if he was up to date with his taxes. He answered in the affirmative and apparently had no problem crossing.

  26. @Blaze

    TD Waterhouse is provincially regulated by the BC and other provinces securities commission. They have to comply with BOTH federal and provincial privacy laws. TD Canada Trust is a chartered bank under the Federal Bank Act and has to comply with more stringent rules in terms of opening up basic checking and savings accounts. These are the so-called Access to Basic Banking Services regulations enforced by the Financial Consumer Agency of Canada I discussed the other day.

    This might be a good opportunity to get the BC Privacy Commissioners Office involved given TD Waterhouse is within her jurisdiction. Maybe you could even get a meeting in person. In terms of the Access to Basic Banking Services rules TD has said in several letters to the IRS the TD Canada Trust division cannot comply with FATCA as long as the ABBS rules remain Canadian law.(The penalty for violating the ABBS rules is 200,000 CAD per violation)

  27. @LadyBug

    I would strongly advise anyone to NOT sign any privacy waiver form they find unfamiliar. If the already have any existing account the bank has to give substantial notice before the close out your account(and possibly go to arbitration at IIROC). Additionally you are entitled to a basic checking and savings account no matter what under current law. Your going to see more of the requests for privacy waivers on investment accounts more than on basic checking accounts which fall under the ABBS rules.

  28. @ Ladybug
    I’m only too familiar with the “deer in the headlights” reaction. A couple of years after we got back to Canada my husband and I went to the US consulate for a tax seminar. We knew we had to do 1040s and we had been but we had some questions. Quite a few people there didn’t seem to know this though and I swear faces were turning green all around the room. The person giving the seminar actually told them that they would have to back file for 13 years. Yes 13! I remember that vividly. Needless to say the whole seminar became focused on filing and we had no opportunity to ask our specific 1040 questions. BTW, that was back when you could actually get into the consulate without too mush hassle. I guess all those non-filers must have had an inkling that something was up but they weren’t prepared for what they heard that night.

  29. @Tim – I sent a note to my MP the PM, Finance Minister and Foreign Affairs Minister here in Canada. I also sent notes to the Calgary Herald and Global News. I just wanted to see if I could stir anything up and directed them to Isaac Brock Society.

  30. @all- I look at it this way. The U.S. may think that it is so smart with legislating FATCA and getting all of the world’s financial institutions to becoming its agents but it may all blow up in their face.
    Just imagine the amount of negative publicity that the U.S. is leaving itself exposed too. These financial reps may have to inquire about your U.S. status but there is nothing stopping them from giving their own commentary on the legislation. They are free to say what they want and there is nothing that the U.S. can do about it. If I were the Americans I would be very worried about how all of this unregulated negative publicity will affect the flow of the wealthy and educated to U.S. shores.
    I don’t really find any solace in the fact that these forms seem to only apply to new accounts because that basically means that as a pre-existing account holder that you are pretty well locked into your existing accounts at your existing financial institution. Hopefully the questioning won’t go any deeper than the Canadian I.D. that you supply. But of course if something slips, as happened with iamquincy, about your U.S. connection then you are toast.
    In the end even with these modifications you are still better off renouncing U.S. citizenship. None of this does away with the tax reporting and investment restrictions obligations that confronts a U.S. person. Citizenship based taxation still has to go.

  31. It looks like other non-US people have to submit a W-8 BEN as well. So if you do business with the US as well, even if it’s a citizen of a different country, the IRS is going to get a form.

    Take Charles Schwab in Hong Kong, for instance: they deal with people from every country, but they still require the W-8 BEN. I guess “US Persons” will have to sign this “waiver” though.

    If you left the US 40 years ago to pursue a life in a different country, you’re probably thinking WTF? Imagine me? I left there because I felt like the government was TOO intrusive. This one is over-the-top!

  32. I have just forwarded the TD Waterhouse links to the Director General of Communications at the Privacy Commissioner’s office.

    @Tim: Is there a Privacy Commissioner for Ontario? I’m in Ontario (was in Vancouver when I became a Canadian citizen 40 years ago. Tiger is in Vancouver. She was in Ontario when she became a citizen 40 years ago, so it’s easy to confuse us. I and others could contact the one in Ontario. Maybe Tiger and others could contact the one in BC. Folks in other provinces could do the same. It’s important to remember what is provincial and what is federal as Tim has outlined above.

    @vin-de-table: Welcome to Brock and Welcome to Canada. I’m sure you will make great contributions to this great country and to this great website.Remember, even as a Canadian resident, you have rights–including the right to not have to provide your citizenship information for banking or investment services.Providing your SIN and driver’s license is sufficient.

    BTW Tim, I’m surprised permanent resident card is not listed as ID on TD Waterhouse website. Isn’t that one of the pieces of ID that is acceptable? Of course, once someone provides PR card, that indicates the person is not (yet) a Canadian citizen. Could it be TD Waterhouse is providing a way for the customer to open an account without any discussion of citizenship or suspicion being raised about possible “US person” status?

  33. @Blaze

    Only Quebec, Alberta, and BC have full provincial commissioners. For Ontario the Federal Commissioner is the main regulatory body.

  34. The president of the Canadian Bankers Association, Terry Campbell, gave a talk to the Calgary Chamber on May 25th. Although it covered many areas, I did find some of his published speech quite interesting. Discussing a survey, he said,
    “Customers also know, and highly value, the fact that banks will keep their private information just that – private.”
    The second piece was regarding the ‘problem of extraterritoriality’, “the most egregious case is a U.S. law called ..FATCA”. He says, “The more you know about this U.S. statute, the more concerned you will be and I encourage you to make your voice known.” He says it will be nightmare for Canadian customers.
    Link to the doc: http://www.cba.ca/contents/files/presentations/pre_20120525_calgary_en.pdf

  35. The IRS does not get copies of the W-8 Ben, they are kept by the financial institution and can be inspected at any time by the IRS and yes every “US Person” will be asked to waive their privacy, this is a requirement of FATCA that the financial institution is only trying to comply with. Don’t blame financial institutions for this they are only trying to comply with unilateral legislation put upon them by the US congress. Take for example Country A that has a mutual fund that invests in US securities, mutual fund only has Country A resident investors yet it must comply with FATCA and identify every one of its investors and obtain W8-BENs from those investors who have nothing to do with the US, If the mutual fund does not comply 30% withholding tax will be deducted on US sourced income as well as proceeds from the sale of US securities. It’s not easy for non-US citizens as well

  36. @Katrina;
    FATCA is not yet the law in Canada for the banks here to have to comply with. So, why not blame a financial institution for instituting this well in advance of the law that would compel them? They are placing their own interests above that of their clients, BEFORE they are legally compelled to. How can you explain that? Last time I looked, Canada wasn’t governed by Congress.

  37. @Katrina;
    It is definitely a strike against a Canadian financial institution when it places the interests of the IRS and the US above that of it’s Canadian citizen and resident customers. I don’t think that anyone reading here is going to be amenable to continue to do business with an institution that does that, so long as they have a choice to go elsewhere. Currently, it looks as if this is another reason to use Canadian credit unions only.

  38. @badger- if you read Mr. J. Richard Harvey’s paper, Offshore Accounts: Insider’s Summary of FATCA and its Potential Future, then you come to the sad realization that FATCA will eventually either engulf credit unions or so marginalize them from the banking system as to force them to close.
    There is actually no scenario under which any financial institution anywhere is really seen as being exempted from FATCA compliance.

  39. thanks @recalcitrant, I’ll find that and look at it. I realized that as FATCA was designed, if it was implemented, the credit unions would not be exempted. At least at the moment, we’ve heard no examples of them asking for citizenship in advance of FATCA implementation?

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