Why FATCA is Bad for AmericaThe Foreign Account Tax Compliance Act (FATCA) is having a negative impact on the U.S. economy, U.S. financial markets, American businesses operating abroad and American citizens who work and reside overseas. American Citizens Abroad (ACA) is working hard to educate the legislature and decision makers to inform them of the many dangers of FATCA. Recently legislators and the media have come out in strong opposition to FATCA, some advocate for repeal, others for revisions of the regulations. All are unanimous that FATCA as currently drafted is bad for America and Americans. What is FATCA?FATCA was initially introduced to target those who evade paying U.S. taxes by hiding assets in undisclosed foreign bank accounts. With such a noble goal, and with the strong backing of the Administration, Congress quickly drafted the FATCA legislation and quietly slipped it into the HIRE (Hiring Incentives to Restore Employment) bill signed into law by President Obama in March 2010. Most members of Congress are unaware of the unintended negative consequences this legislation will have when fully implemented in 2014. Key provisions of FATCAFATCA requires foreign financial institutions (FFI) of broad scope - banks, stock brokers, hedge funds, pension funds, insurance companies, trusts - to report directly to the IRS all clients’ accounts owned by U.S. Citizens and U.S. persons (Green Card holders). Starting July 1, 2014, FATCA will require FFIs to provide annual reports to the Internal Revenue Service (IRS) on the name and address of each U.S. client, as well as the largest account balance in the year and total debits and credits of any account owned by a U.S. person. If an institution does not comply, the U.S. will impose a 30% withholding tax on all its transactions concerning U.S. securities, including the proceeds of sale of securities. In addition, FATCA requires any foreign company not listed on a stock exchange or any foreign partnership which has 10% U.S. ownership to report to the IRS the names and tax I.D. number (TIN) of any U.S. owner. FATCA also requires U.S. citizens and green card holders who have foreign financial assets in excess of $50,000 (higher for those who are bona-fide residents abroad) to complete a new Form 8938 to be filed with the 1040 tax return, starting with fiscal year 2011. Those affected by FATCAFATCA will have serious negative ramifications on the entire U.S. economy and more specifically on • U.S. financial markets and financial institutions • U.S. businesses operating in global markets • American citizens residing overseas • American citizens with legitimate investments overseas The dangerous ramifications of FATCAFATCA constitutes a breathtaking extension of U.S. legislative overreach, purporting to impose upon every foreign financial institution, corporation and partnership the obligation to examine whether and to what extent it must adhere to the application of U.S. law. In many cases, entities electing to comply with FACTA will find themselves in violation of local privacy laws. The cost for this massive reporting bureaucracy is estimated in the billions of dollars for foreign and U.S. financial institutions as well as for Americans residing overseas, not to mention for the IRS itself. Much more significant than the cost and time burden, FATCA creates a direct financial and legal threat to all foreign financial institutions. After much complaint over the direct transfer of information from FFIs to the IRS, the Treasury Department created "Intergovernmental Agreements" or IGA’s. This is a system intended to allow FFIs to release client account information via government to government exchange so that FFIs will not need to violate privacy laws by directly releasing information to the IRS. FFIs must still register with the IRS to abide by FATCA, whether or not the government signs an IGA, to avoid the 30% withholding. An anti-discriminatory clause has also been included in the IGA agreements in order to minimize the possibility of banking lock-out for U.S. citizens and U.S. persons. Nonetheless, U.S. citizens and U.S. persons continue to experience banking lock-out and reduction of services. Many FFIs have simply not referenced FATCA as the reason, citing only "private banking policy." Suddenly, after years of not calling into question banking policy, U.S. citizen clients are having their accounts closed, access limited, or being denied services all together. FATCA is definitely the cause. Those FFIs that do not enter into IGA are penalized with a 30% withholding tax on U.S. source investment income. A withholding tax on income transferred overseas, such as dividends and interest, is recognized as a fair and effective way of collecting taxes and is built into most double taxation treaties signed by the United States and other countries, generally with a reduced withholding rate. But FATCA provides in addition for a 30% withholding on the sale value of U.S. assetsand imposes the 30% withholding tax on ALL U.S. source transfers to non-compliant foreign financial institutions. This is completely different and is confiscatory. FATCA rests on a fallacy: guilty (of tax fraud) until proven innocent; this is a denial of justice as it is known in our Western world. Foreign divestment of U.S. investments is a serious riskThe FATCA threat of a 30% withholding tax and the potential exposure to transfer of personal data is inciting foreigners to divest out of U.S. securities and investments. Some foreign banks throughout the world have already indicated their intention to do so and have advised their institutional and private clients accordingly. • The Japanese Bankers Association stated very clearly: In the event that the implementation of FATCA is not practically feasible for the Japanese financial services industry, it would result in substantial confusion in the industry and could ultimately lead Japanese financial institutions to withdraw their investment from U.S. financial assets. ii) • The European Banking Federation and the Institute of International Bankers, which in their own words represent most of the non-U.S. banks and securities firms around the world that are affected by the FATCA provisions, highlighted their concerns: many FFIs, particularly smaller ones or those with minimal U.S. investments or U.S. customers, will opt out of U.S. securities rather than enter into a direct contractual agreement with a foreign tax authority (the IRS) that imposes substantial new obligations and the significant reputational, regulatory, and financial risks of potentially failing those obligations, or may disinvest their U.S. customers in order to reduce their compliance burdens under an FFI Agreement. iii) • This warning from Europe was reiterated in June 2011. George Bock, a Luxembourg-based KPMG partner and head of tax at KPMG, told reporters at a funds event in London that FATCA could cause investors to sell out of U.S. stocks, bonds and other investments, affecting the price of U.S. shares as well as those of other countries in ways that are not yet fully clear. iv) • KPMG conducted a survey in 2011 of leading fund promoters in 12 countries. v) The majority of respondents had assets under management in excess of EUR 10 billion, and more than half of the respondents distributed their shares/units in more than 10 countries. The survey asked: Further to FATCA, could your fund intend to disinvest (directly/indirectly) from the US? For both the U.S. fixed income market and the U.S. equity market, 6% answered yes. Another 10% for the fixed income market and 7% for the equity market stated that it was thinkable to divest from the U.S. A whopping 29% for the fixed income market and 26% for the equity market replied that divestment depended on the detailed implementation rules for FATCA. In other words, for funds managers worldwide, divestment from U.S. securities markets is a real option. These statements must be taken seriously and should not be ignored. According to the U.S. Bureau of Economic Analysis, total foreign investment in the United States exceeds $21 trillion. vi) Foreign investment in U.S. securities alone exceeds $10 trillion. The capitalization of the two U.S. stock exchanges is $18.6 trillion. vii) The financial weight of foreign financial institutions is enormous. The 100 Top Financial Institutions worldwide command total assets of $77.6 trillion. More than $55 trillion or two-thirds of this financial power is controlled by non-U.S. financial institutions. Among the top ten alone are seven non-U.S. financial institutions with combined balance sheet assets of $16.7 trillion. viii) In addition to direct control of assets, foreign financial institutions have very significant client funds under management, funds which do not appear on their balance sheets. Among the top 15 Global Money Managers, 7 are non-U.S. financial institutions. The assets under management of just these 7 non-U.S. financial institutions are close to $9 trillion. ix) These are big numbers. Foreign financial institutions have significant power through the allocation of their assets and this should be taken into account in a cost/benefit analysis of FATCA. x) The United States should not be playing with fire when it comes to keeping the country attractive for foreign investment. Risk of funds withdrawal from U.S. bank deposits held by non-resident aliensIn addition to investments in securities, foreigners hold over $1 trillion on bank deposit in the United States because those deposits are tax free and the United States represents a safe haven for non-resident aliens. Congress has deliberately established this policy to attract foreign funds so necessary to the U.S. economy. But if a 30% withholding tax may potentially be applied upon transfer of those deposits to an overseas account, the attractiveness of United States banking services disappears. With the IGA currently being signed by foreign governments, the U.S. Treasury is promising reciprocity on information on foreigners holding financial assets in the United States. This is something the Treasury cannot and should not be promising. Already banks in Texas and Florida have protested that broad-based reciprocity will destroy their banking markets; many foreigners residing in Latin America have chosen banking in these states not to evade foreign taxes but for the anonymity and security provided, due to unstable governments inthe countries where they reside. The foreign direct investment component is also vulnerableIf future financial transfers out of the United States are perturbed by FATCA, the direct investment component of the U.S. economy may suffer as well. A pull back in foreign direct investment in the U.S., which now represents an accumulated $2.7 trillion, would negatively impact the growth of the economy. Attracting foreign companies to invest in the United States requires not only good business prospects but also a free flow of capital both into and out of the country. With the economy seriously underperforming, unemployment high and budget and trade deficits ballooning, this is not a time when the U.S. can afford to lose any kind of investment in its economy, but that is exactly what FATCA will provoke. The huge potential foreign investment losses largely outweigh FATCA revenuesSale of just a portion of foreign holdings of U.S. securities,
transfer of some of the foreign-owned bank deposits out of the
United States and reduced foreign direct investment would severely
damage the U.S. securities markets, the solvability of certain U.S.
banks and the growth of the entire U.S. economy. The potential
losses of trillions of dollars due to foreign institutions and
foreigners divesting out of the United States totally outweigh the
meager tax revenue that the IRS will actually collect as a direct
result of this deeply flawed legislation. The Joint Committee on
Taxation (JCT) estimated that the FATCA bill would raise $792
million of additional taxes a year in the next ten years. xi)
Congress never requested a full GAO (Government Accountability
Office) cost/benefit study on FATCA. Administrative costs will be
very burdensome and costly for the IRS, U.S. taxpayers and, most
importantly, for financial institutions which despite a precarious
situation in global financial markets, have no option but to spend
hundreds of millions of dollars on compliance. Foreign financial institutions will create dedicated entities for handling transactions with the United States, separate from their other business. This will erode the influence of the U.S. banks as the indispensable counterpart when trading with the dollar. As the Financial Times stated: one of Asia’s largest financial groups is quietly mulling a potentially explosive question: could it organize some of its subsidiaries so that they could stop handling all US Treasury bonds? Their motive has nothing to do with the outlook for the dollar. Instead, what is worrying this particular Asian financial group is tax. In January 2013 (subsequent to this article, the date was delayed to July 1, 2014), the US will implement a new law called the Foreign Account Tax Compliance Act. These rules would partly put the responsibility on the bank or asset manager not just the individual to make this filing the new rules leave some financial officials fuming in places such as Australia, Canada, Germany, Hong Kong and Singapore. xii) There is no doubt that in a FATCA world, China will be the winner and the United States the loser. The Chinese have the possibility to circumvent FATCA by passing foreign currency transactions through government-owned banks, as this category of bank is exempted from the FATCA regulations. This provides China with a unique competitive advantage over publicly and privately owned banks in the rest of the world. It provides China an opportunity to transform the Yuan into a more attractive reserve currency for international transactions. It is known that the Chinese want to develop an alternative to the U.S. dollar domination in international transactions. FATCA provides the Chinese with a perfect platform for doing just that. One of the very undesirable consequences of FATCA will be the creation of a two-tier banking system, an upper tier of the larger financial institutions which will comply with the FATCA legislation and continue to deal with U.S. financial institutions and a lower tier, which will refuse to do so. The latter group will provide a perfect cover for precisely the undesirable transactions that the legislation is intended to curb. FATCAs means are diametrically opposed to its ends. It is not only self-defeating, but as an added bonus it fosters irreparable damage to the economy at large and in particular erodes the competitiveness of the U.S. financial sector. The complexity of compliance by FFIs is overwhelmingFATCA uses a bulldozer to go after an ant hill, which is already creating serious backlash against the United States. The complexity of compliance for foreign financial institutions is enormous; after two rounds of Treasury Department draft regulations, fundamental questions remain open about the feasibility of compliance after issuance of the final regulations. The Treasury Department has twice delayed the date for implementing FATCA due to the complexity in developing regulations and the resistance from governments and financial institutions throughout the world. Thousands of lawyer, accounting specialists, software developers and staff of FFIs have already spent enormous time trying to understand the regulations and develop appropriate implementation tools. Just the question of client identity is a major issue since FATCA requires FFIs to identify, and report on, all clients deemed to be U.S. persons. The Japanese banks have several hundred million bank accounts, all with opening forms in Japanese and many not digitalized. Today, banks in Canada are not required to know the nationality of their clients; to conform to FATCA Canada would have to change its privacy laws. Many countries find themselves in the same conflict with regard to privacy laws. This invasion of U.S. law into other countries is a source of bad will for the United States. The Calgary Herald published an article entitled Note to Obama: Canada is not the Cayman Islands. xiii) The Globe and Mail reported: In a recent letter to Finance Minister Jim Flaherty, Canadian Bankers Association President Terry Campbell complained that the U.S. law takes an end-run around the Canada Revenue Agency and attempts to coerce foreign financial institutions into a reporting and withholding relationship with U.S. tax authorities. xiv) Passthru payment control is another mindboggling issue of FATCA. In its June 7, 2011 reply to the U.S. Department of Treasury Notice 2011-34, xv) the second round of draft regulations, The British Bankers Association (BBA) stated in paragraph 6: While we understand and support the goals of preventing tax evasion, the most problematic proposal in the Notice is Passthru Payments. We understand the US Governments concern with the potential for using non-participating FFIs as a blocker to shield US taxpayers from identification and reporting and the intent of the proposal to encourage FFIs to become compliant with FATCA. However, in its current form the proposals are unfortunately unworkable for a deposit-taking global institution. xvi) The Department of the Treasury has pushed forward the date for enforcement of the Passthru Payment Concept and has opened a dialogue with FFIs on this issue. FATCA is ruinous for Americans and for American business overseasFATCA has turned Americans into pariahs in the international financial world. FATCA requires foreign financial institutions to report to the IRS the names and assets of all clients who are U.S. persons. Consequently, foreign financial institutions banks, insurance companies and pension funds are already turning away American clients due to the costly IRS reporting requirements and the perceived significant legal and financial risks. ACA has received multiple testimonies from Americans abroad who have had their foreign bank accounts closed, been refused entry into a foreign pension fund, or who cannot enter into insurance contracts overseas. How can Americans abroad survive and U.S. businesses develop globally without access to foreign banks, foreign pension funds and insurance coverage? In many cases Americans have been unable to participate in company pension funds or conclude insurance contracts, and as a result are rendered unemployable by this punitive framework. If a U.S. company aims to develop exports, either through a sales representative or its own sales subsidiary, it necessarily must have foreign bank accounts to facilitate payments from foreign clients and to pay local expenses. It must be able to contract insurance plans for its company’s assets and provide pension plans for its employees. FATCA creates an enormous barrier for U.S. companies attempting to penetrate foreign markets with U.S. products and services. This barrier adds to the already burdensome IRS reporting required for foreign controlled corporations The 10% U.S. ownership ruleSection 1472, introduced into the Tax Code by FATCA, requires a withholding agent to withhold 30% on any payment made to a non-financial foreign entity unless the payee or the beneficial owner of the payment provides the withholding agent with either: 1) a certification that the foreign entity does not have a substantial U.S. owner(which is defined in FATCA as one holding 10% or more of the company) or, 2) the name and Tax I.D. Number (TIN) of each substantial U.S. owner. Additionally, the withholding agent must not know or have reason
to know that the certification or information is incorrect, and the
withholding agent must report the name, address, and TIN of each
substantial U.S. owner. Furthermore, American citizens are required to report on the new FATCA Form 8938, to be attached to the 1040, the names and addresses of all issuers of foreign shares or partnerships not held with a foreign financial institution as well as the value of the American citizens share of the capital. Hence, foreign companies will have their names appear in tax filings of U.S. citizens and the IRS will be able to put a value on the entire company. These reporting requirements are already shutting Americans out of business ventures abroad. In one case, three partners, two foreigners and one American, were far down the road in developing their business plan for a joint venture, but when they went to the bank for financing, the banker advised the foreigners to evict the American partner because of the IRS reporting requirement. The American literally got pushed out of the venture he had initiated. In today’s global market, this IRS requirement creates a devastating handicap for Americans eager to establish the relationships abroad necessary to promote American business in the global economy. Imagine the reaction in the U.S. if Great Britain, Germany and Japan, to name just three major economic partners, imposed a similar rule. Imagine the problem if Joes welding shop in Dubuque, Iowa has a German partner (with 11% ownership) and has to report to the Bundes Steuer Amt on its forms, in German, the names and German taxpayer identification of the German partner. And, if Joes welding shop also had a Japanese partner and a French partner, each with 11% ownership, its compliance office would require a separate floor. A nightmare just to think of it! The 10% U.S. ownership rule is both politically arrogant and economically unsound for business. In todays ever more global economy, the United States cannot risk having its citizens excluded from partnerships overseas with foreign entrepreneurs. In addition, the bureaucratic burden of such a reporting requirement on foreign companies and on the worlds financial transfer system will be horrendous. Companies and partnerships will refuse to deal with Americans, or simply refuse to comply with the law. And who can blame them? Reporting requirements of Form 8938 for Americans holding foreign financial assetsFATCA requires any American with more than $50,000 in foreign assets to report (Form 8938). Americans who are bona-fide residents overseas have higher thresholds for reporting, $200,000 for those reporting individually and $400,000 for those filing jointly. All foreign financial account assets, bank accounts, securities accounts, annuity contracts, rental properties, insurance contracts, pension plans, trusts and private investments in companies and partnerships. This reporting requirement took effect for tax filing year 2011 (1040s to be filed by April 15, 2012), and this requirement is in addition to the FBAR reporting of foreign financial accounts already required by the Department of the Treasury. Penalties for non-willful failure to report Form 8938 are high: 40% of any under-reported position. The initial fine for not filing Form 8938 is $10,000, rapidly increasing to $50,000 for each fiscal year. Given the high degree of complexity and the breadth of this new reporting requirement as well as the uncertainties attached to Form 8938, there exists a substantial risk of filing error due to confusion and misunderstanding, particularly since the FBAR form uses different reporting criteria. To have an overview of the complexity of the reporting requirement, the information required on Form 8938 includes the names of all financial institutions with which one has a foreign account, the account number, the maximum balance during the year (in U.S. dollars), the foreign currency rate at which foreign amounts were translated into U.S. dollars, the source of the foreign currency rate, whether the account was opened or closed during the tax year and a box to check if the account is jointly owned with spouse. Similar reporting is required for all other foreign assets. Part III of the form requires reporting of a summary of tax items attributable to specific foreign financial assets with reference to the form and line or schedule and line where the income or gain is reported. Compliance with this additional requirement is simply not realistic for a vast swathe of the normally law-abiding filer community unable to afford the expensive services of a professional tax advisor. The fear of data being compromised via electronic and/or paper transfer is also a concern that needs to be seriously considered. FATCA specifically discriminates against Americans residing abroadAmericans residing overseas necessarily have bank accounts and other financial assets in their country of residence, just as Americans residing in Kansas have bank accounts, mortgage loans, and pension funds in Kansas and not in California or Virginia. Consequently, most if not all Americans residing abroad will be subject to the Form 8938 reporting requirement and will risk the penalties mentioned above, while only the very few Americans residing in the United States and owning foreign bank accounts or other foreign financial assets will be subject to the same requirements and risks. The law, as written, specifically discriminates against Americans residing overseas. Americans residing in the United States are not required to report their assets for tax purposes, only their income, since federal taxes are levied only on income and capital gains. Why should Americans who are bona fide residents abroad be subject to a more extensive reporting requirement? FATCA reporting by bona fide overseas residents will not bring in significantly more tax revenue since Americans residing abroad first pay taxes in their country of residence. Once foreign tax credits available to overseas filers are deducted from the theoretical IRS tax liability, the net tax revenue due to the IRS is minimal. Most Americans residing in such high tax countries as Canada, Germany, France, Great Britain, Australia and Japan owe no U.S. taxes when they file their 1040. The administrative burden of FATCA imposed on the 7 million overseas Americans is totally out of proportion with any potential tax revenue to be collected. Moreover, FATCA creates serious financial risks for Americans residing abroad as penalties for simple reporting errors could wipe out their entire savings, even though they may not owe any U.S. taxes at all. For the reasons mentioned above, the community of Americans residing overseas is of the opinion that, if FATCA is not revoked in its entirety, bona fide residents overseas should be exempted from the reporting requirement of Form 8938. ACA has proposed that Congress adopt residence-based taxation (RBT) instead of citizenship-base taxation; this would not only eliminate issues of double taxation and double filing; it would also eliminate the need for FFIs to report on Americans resident abroad as well as the requirement for Americans abroad to file Form 8938 and the FBAR. (See ACA’s position on FATCA and ACA’s RBT proposal). Risk of identity fraudForm 8938 provides full disclosure of personal assets and bank account information. It will be filed with the 1040 that details the tax filers name, address, phone number and Social Security number, thus putting Americans abroad at high risk of serious identity fraud, in particular, since the IRS is pushing to have all of this reporting done on-line in the near future. James White, director of strategic studies for the GAO, told the House Oversight subcommittee on Government Organization that there were close to 250,000 incidents of taxpayers’ identity theft in 2010, up from just under 52,000 in 2008. xviii) This is a five-fold increase in the number of instances in just two years. When 100% of all private financial information is acquired with such identity theft, the potential damage inflicted on Americans overseas will be substantial. The IRS is already successfully tracking down tax evaders without FATCAThe IRS already has multiple tools to go after tax evaders the QI program, the John Doe summons, the "Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil and Commercial Matters", Tax Information Exchange (TIE) Agreements, Mutual Legal Assistance Treaties (MLAT) and the "Swift Agreement". xix) FATCA is unnecessary because the IRS has already been highly successful in pursuing U.S. resident tax evaders. The IRS collected $780 million in settlement of the recent charges facing UBS. The IRS has collected over $5 billion from more than 35,000 filings under the Voluntary Disclosure Programs. Thanks to the Voluntary Disclosure Programs and the information on 4,500 American-owned UBS accounts that were transferred to the IRS as part of the UBS settlement, the IRS has multiple information leads which will enable even more efficient tracking of tax evaders. The IRS is already actively pursuing other foreign banks as a consequence. The IRS has been very vocal about its successes. There is no need for FATCA. ConclusionFATCA legislation is predicated on the faulty assumption that
foreigners throughout the world with no predisposition to favor the
U.S. will react positively to its attempts to convert them into
unpaid IRS agents. Faced with similar investment and personnel
options without the legal jeopardy and financial risks, reasonable
people will choose non-U.S. alternatives. FATCA implementation will
constitute a major disruption of the entire international financial
world as we know it today. Reasonable persons and entities will
develop effective antibodies to this perceived infection, in ways
too numerous and manifold to predict. What can be predicted is that
the cumulative effect of this legislation will be a major blow to
U.S. economic interests and prestige. At stake for the United States
is the potential loss of trillions of dollars of investment, the
opportunity for American companies and financial institutions to
compete in a competitive global environment and the possibility for
American citizens residing overseas to survive and thrive. In brief,
the economic future of the United States is at stake. Last Updated July 8, 2014 © 2014 American Citizens Abroad (ACA). All rights reserved. http://americansabroad.org/issues/fatca/fatca-bad-america-why-it-should-be-repealed/ |