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FATCA and the End of Bank Secrecy

Mises Daily: Monday, August 19, 2013 by

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Among the many recent revelations about American surveillance operations was the fact that, according to Der Spiegel, the U.S. intelligence apparatus “not only conducted online surveillance of European citizens, but also appears to have specifically targeted buildings housing European Union institutions,” Few, if any, of those commenting of late on such affairs mentioned that numerous nations across the globe actually acknowledged the U.S. government’s anti-privacy offensive months before by accepting its Foreign Account Tax Compliance Act (FATCA).

The FATCA legislation attempts to combat bank privacy on many levels and for many reasons including the American state’s desire for more effective tax collecting. According to U.S. tax law, every American taxpayer is obligated to fill out tax forms and pay taxes for their income attained not only on U.S. soil but overseas as well. The Internal Revenue Service (IRS) does not distinguish where the taxpayer lives, since U.S. taxation is based on either residency or citizenship.

Therefore America remains one of the two states worldwide that tax their non-residing citizens. The other is Eritrea, a country not known for an exemplary human rights record.

It is therefore no wonder offshore tax evasion is a substantial problem for the federal government. Senator Carl Levin, chairman of the Permanent Subcommittee on Investigations in Senate, revealed in a statement that tax-dodging schemes cost the Federal Treasury $100 billion a year. More than six (out of seven) million American taxpayers living overseas never fulfilled their tax obligations. Neither the Qualified Intermediary (QI) program, nor direct diplomatic efforts concerning tax havens succeeded, which led to an amendment of FATCA in 2010.

In general, the law forms an additional chapter to the Internal Revenue Code and obligates all Foreign Financial Institutions (FFI) to provide the IRS with information on their clients that are U.S. persons, thus combating tax evasion. FFIs that do not conform to their reporting duties are bound to pay 30 percent tax on any “withholdable” payments owed them in the U.S (U.S. payers are obliged to withhold 30 percent of the gross payments to delinquent FFIs). These include virtually any payment of U.S. source income: payment of interest, dividends, salaries, wages, rents, annuities, licensing fees, profits, gross proceeds from the sale or disposition of U.S. property and even interest paid by foreign branches of U.S. banks. Since the act’s definition of Foreign Financial Institution is substantially broad, every bank, broker, insurance company, private equity fund or hedge fund either identifies and reports to the IRS on their U.S. clients or is robbed of 30 percent of income on American soil. (An FFI is defined as any foreign (non-U.S.) entity that either “accepts deposits in the ordinary course of banking or similar business; or as a substantial portion of its business, holds financial assets for the account of others; or is engaged ... in business of investing, reinvesting, or trading securities, partnership interests, commodities, or any interest in such securities, partnership interests, or commodities.”) The IRS has started an internet portal where FFIs can register online and agree to cooperate. The law is effective since January 2013, however withholding does not start until January 2014.

According to FATCA, FFIs might be exempted from the 30 percent tax and recognized as FATCA-compliant if they identify all of their clients that are U.S. taxpayers and inform the IRS of the account holders’ names, TINs, addresses; the accounts’ balances, receipts, and withdrawals. Identification of the pre-existing high value accounts (that is: accounts with funds exceeding $1 million) are to be electronically scanned for so-called “U.S. indicia” and then manually verified (enhanced review) by the relationship manager who might have an actual knowledge about the account holder. Other pre-existing accounts are required to be electronically scanned only and accounts under de-minimis threshold of $50,000 ($250,000 for non-natural persons) are exempted from the search. If individuals meet the U.S. indicia, the participating FFI obtains the relevant tax forms from the account holder. Those who refuse are to be declared recalcitrant account holders, their accounts will be closed, and the tax will be deducted from their funds. U.S. indicia are: U.S. citizenship or lawful permanent resident (green card) status; a U.S. birthplace; a U.S. residence address or a U.S. correspondence address (including a U.S. P.O. box); standing instructions to transfer funds to an account maintained in the United States, or directions regularly received from a U.S. address; an “in care of” address or a “hold mail” address that is the sole address with respect to the client; a power of attorney or signatory authority granted to a person with a U.S. address.

Not surprisingly, FATCA has been controversial from the very beginning. Canadian Finance Minister Jim Flaherty said the law creates unnecessary paperwork and accused the U.S. of looking for tax havens where they do not exist. American Citizens Abroad (ACA) predicted that FATCA would have a devastating impact on the U.S. economy, U.S. financial markets, and American businesses operating abroad, while European media pinpointed that the main effect of FATCA’s introduction would be the dumping of clients with U.S. citizenship by European banks. Nevertheless the biggest problem is that FATCA affects not only U.S. persons but many entities abroad also. The costs of full compliance were estimated (in case of big banks in Poland) to reach almost 15 million Euro. The act was also heavily criticized for making foreign institutions “arms of US tax authorities.”

Resistance to the act from foreign states has nevertheless been muted. From as early as 2010 Japanese bankers expressed no intention of complying to the regulations and yet they did. On June 11, 2013 the Japanese government signed the Statement of Mutual Cooperation and Understanding between the U.S. Department of the Treasury and the Authorities of Japan to Improve International Tax Compliance and to Facilitate Implementation of FATCA. With the United Kingdom, Denmark, Mexico, Ireland, Switzerland, Norway, Spain, Germany and Japan as intergovernmental agreements (IGA) signatories and others coming, it is fair to say that January 1, 2013 is the day banking secrecy ceased to exist. Even Ueli Maurer, the Swiss president, admitted that “honouring the United States’ Foreign Account Tax Compliance Act led to the lifting of banking secrecy for US customers of Swiss banks.”

We did not have to wait long for a similar initiative from the European Union. According to the latest news, the European Commission seeks to expand automatic information exchange between EU Member States. EU Tax Commissioner Mr. Algirdas Šemeta revealed on June 13, 2013 a proposal for a Council Directive, which aims at eradication of tax evasion in Europe. The automatic exchange of information between member states is going to create a system called AEOI, the most comprehensive treasury and fiscal control in the world. Even Luxemburg and Austria, countries traditionally skeptical about collective anti-tax evasion initiatives, are expected to join the AEOI.

It seems that there is little understanding that it was banking secrecy that helped to resist twentieth-century dictatorships and that high tax rates — not money havens — are responsible for tax evasion, as Prince Hans-Adam of Lichtenstein has pinpointed. Clearly the amount of information collected for the purpose of future tax investigation is enormous, leaving little place for human privacy and dignity. Most importantly, it raises a question as to who gave participating states a right to gather information on people that are not their citizens.