Now that it is clear the U.S. will not ‘reciprocate’ on FATCA, will ‘partner’ countries wise up?

As I have warned for several years now, “partner” governments signing legally defective Foreign Account Tax Compliance Act (FATCA) intergovernmental agreements under promises from the U.S. Treasury Department that the U.S. would provide reciprocal information from domestic American institutions was at best a long shot, more likely just a deception. Almost three years ago, in July 2013, Florida Congressman Bill Posey made it clear requests for legislative authority to provide “reciprocity” were dead on arrival.

Yet foreign governments have continued to deceive themselves – or their publics, or both – that American participation in a global GATCA, or intergovernmental automatic exchange of information, disclosure of corporate beneficial ownership, and a common reporting standards regime, probably under OECD auspices, were just around the corner.

Well, it is not. Period. Full stop.

With Senators Rand Paul’s and Mike Lee’s stalwart block of tax treaty provisions as backdoor mechanisms for securing the Obama Administration’s sought-for authority, the matter is deader than ever here in Washington.

Belatedly, some elements abroad are waking up to the fact they have been had. They have only themselves to blame, really. Not only were they warned by this writer time and again, they at least should have had the common sense, and an elementary understanding of our non-parliamentary Constitutional system, to know that Treasury’s promises had no legal authority and were worthless. But so intimidated were they by America’s mighty threat of FATCA sanctions or deceived by the siren-song of the compliance industry that “there is no alternative” to an inevitable, and for the industry, highly lucrative, acquiescence to Washington’s demands, or perhaps slavering with the sheer greedy lust of an expected tax revenue bonanza if only they would throw their citizens’ privacy concerns under the bus, our so-called “partners” – more properly called satellites – meekly handed over the keys of their financial institutions to the IRS (not to mention, to the NSA, CIA, etc.)

But still, our “partners” now pronounce themselves shocked that “the Yanks” are not keeping their promises. Since the “Panama Papers” story broke, foreign officials have accused the United States of acting as a tax haven as well as permitting states like Delaware, Nevada and Wyoming not to disclose beneficial ownership of corporations. There have been calls to blacklist the United States, and even (from the Greens/EFA group in the European Parliament) to apply sanctions against us. Cayman Premier Alden McLaughlin has called for a level playing field in terms of financial transparency and stated that a standard without U.S. participation “is not a global standard.”

Good luck with that.

At this point, as our foreign partners finally notice the raw deal they have gotten, they have three choices:

  1. Keep beating their collective heads against the wall, futilely demanding that IGA reciprocity promises be honored, that American states disclose “beneficial ownership,” that the U.S. sign on to the so-called Protocol amending the Multilateral Convention on Mutual Administrative Assistance in Tax Matters, along with a follow-up competent authority agreement, etc.
  2. Accept that Washington will treat international information exchange like we treated the League of Nations or the International Criminal Court: Those lesser, not-fully-sovereign countries will comply with whatever we dictate to them, and we will ignore their requests to us.
  3. Finally admit to themselves that FATCA, GATCA, AEOI, CRS, and the rest of the whole rotten OECD-Obama scheme was a bad idea to start with. They must then tell Treasury they will not comply with FATCA and will pull out of arrangements that violate state sovereignty and personal privacy – and if Treasury does attempt to impose illegal sanctions for FATCA non-compliance, determined resistance and asymmetrical responses will follow. Granted, small countries like, say, Cayman, are in a weak position to defend themselves directly, though they could support anti-FATCA efforts inside the United States, which they have not. Other countries do have significant options. For example, Canada and the United Kingdom are in a strong enough financial relationship vis-à-vis the U.S. to tell Treasury that any FATCA “withholding” to their institutions will be met dollar-for-dollar with withholding from transfers to the U.S. Or Canada could inform the U.S. that an equal sum of FATCA withholding would be imposed in added fees on American air carriers transiting Canadian airspace on Atlantic flights.

The bottom line is this: If there’s a will to resist, the means will be found. But if partners continue to cower as they have thus far, they deserve whatever they get. Based on past performance, I remain skeptical that they will summon the wherewithal actually to stand up for themselves. But the successful Brexit vote gives even this most hardened cynic pause and renewed hope in the spirit of liberty.

Meanwhile, at least the sense of unfairness and the need to do something about it appear to be growing. The following is a survey by country of reactions to the accurate perception that FATCA is an unfair, one-way street, especially for “Accidental Americans,” who are local citizens who for a variety of reasons are considered “U.S. persons” for tax purposes by the U.S. (The survey is sourced from Jude Ryan on the Accidental Americans group on Facebook.)

flag-franceFrance: The Assemblée Nationale has set up a fact-finding mission to investigate the extraterritorial reach of U.S. laws and in particular the invidious position French “Accidental Americans” find themselves in. Several recent events have highlighted the propensity of the U.S. courts and the U.S. administration to purport to impose sanctions against foreign corporations and foreign individuals in respect of events occurring outside of U.S. territory. Based on the feedback of a wide array of experts, the fact finding mission will attempt to define the contours of U.S. extraterritoriality, exhaustively identify all cases of extraterritorial application of U.S. laws, assess their impact and, in particular, their impact on fair competition and the economic losses suffered by French companies as a result, and to study ways in which to counter such practices both at a national and European level. The mission hopes that its findings will lead to concrete implementation measures. A hearing of French Accidental Americans was held on June 8, 2016, and at which issues raised by FATCA and the U.S. practices of Citizenship Based Taxation, particularly as regards Accidental Americans were discussed. The mission questioned and heard testimony from five Accidental Americans. Also, French Parliamentarian Seybah Dagoma wrote to the President François Hollande’s office drawing his attention to the issues faced by French citizens who are also Accidental Americans. In her letter, Dagoma denounced the unintended consequences of FATCA, the absurdity of Citizenship Based Taxation, the extraterritorial reach of U.S. laws and the living nightmare French Accidental Americans and their families are enduring.

flag-italyItaly: Massimiliano Fedriga, leader of the parliamentary Lega Nord group, recently posed a question to the Italian government regarding the situation of Accidental Americans and, in particular, how the Italian government proposes to safeguard Italian citizens caught up in this mess, in addition to questions regarding infringement of Italian sovereignty, compliance costs and related matters.

flag-canadaCanada: In Canada, the Alliance for the Defence of Canadian Sovereignty has initiated a lawsuit against the government of Canada legislation that enables the FATCA IGA “agreement” between Canada and the United States. The defendants in the lawsuit are Canada’s attorney general and revenue minister. The plaintiffs are two women from Ontario, Canada, both born in the United States, but who left the U.S. at an early age and have no meaningful ties with U.S. – yet they are deemed by the U.S. to be “tax citizens.” The plaintiffs claim that the legislation violates Canada’s Charter of Rights and Freedoms, Constitution, and its sovereignty as a nation. The trial is likely to take place in Canada Federal Court later in 2016. Plans are also afoot to mount a legal challenge in the U.S. courts to the U.S. practice of Citizenship Based Taxation.

flag-isrealIsrael: Two actions are ongoing in Israel. The first is an appeal to Israel’s Supreme Court, contesting the right of banks to transfer information pertaining to local accounts of dual citizens to the IRS. If this appeal is successful, the problems of accidentals will also be solved. The second revolves around banking problems faced by the many small charities popular in Israel’s ultra-Orthodox communities. These charities rely on foreign donations. Requiring them to report on all donators will effectively ruin them. This issue is being discussed by the finance committee in the Israeli parliament. This committee also promised to discuss the Accidental Americans issue.

It still remains to be seen where these efforts will amount to anything serious. Likewise, even if they are, it is essential they are directed not towards pulling the U.S. into the financial fishbowl – which I repeat again for the record, just will not happen – but for scuttling it entirely. In that regard, it is belatedly time to create what never has existed from the time FATCA was launched in 2010: a dedicated, funded Washington-based lobby and media effort to repeal this misbegotten, wasteful, invasive, and dysfunctional law.