Part A – Prologue – It’s not about FATCA. It’s about U.S. citizenship taxation
U.S. citizenship taxation is a mechanism that is used by the United States to:
1. Capture the residents of OTHER countries and claim they are really U.S. residents; and
2. Impose U.S.taxation on the non-US source income actually received (or in the case of GILTI, transition tax, foreign trust rules, etc. not actually received) by those residents of other countries.
In simple terms:
FATCA is a mechanism used by the United States to force other countries to search for and locate their own residents who are (because of a U.S. birth place) effectively the property of the United States. In practical terms, the mechanism used is the “FATCA IGA” and the countries who sign the “FATCA IGA” are partner countries. The job of the partner country is three-fold:
(i) to locate and determine which of their residents are either U.S. citizens or are suspected to be U.S. citizens
(ii) to report their financial information to the Internal Revenue Service of the United States
(iii) to deny bank services to those individuals who do not cooperate with the FATCA inquisition.
In effect, (as the court decision makes clear) the purpose and effect of FATCA is to assist with exporting U.S. citizenship taxation into other countries. In the same way that modern extradition treaties are used to export U.S. criminal law around the world, FATCA is used to export U.S. citizenship taxation around the world. The following post also argues that U.S. citizenship taxation (if it matters) is a violation of international law.
Toward An Argument That US Citizenship Taxation Violates International Law
On July 25, 2025 a Dutch court confirmed its view that the Netherland’s FATCA IGA with the United States is NOT subject to any provisions of the GDPR. In other words, U.S. citizens, who are residents of the Netherlands and call the Netherlands home do NOT have the same rights as citizens of other countries!
In paragraph 7 of its decision, the court confirms that Accidental Americans in the Netherlands are NOT afforded the same rights as other Dutch residents as follows:
Beoordeling door de rechtbank
7. De rechtbank stelt voorop dat zij begrip heeft voor de op zitting door eisers geuite gevoelens van frustratie en onvrede. Eisers hebben duidelijk gemaakt dat zij door het hebben van een dubbele nationaliteit nadelige gevolgen ondervinden als gevolg van Amerikaanse wetgeving. De rechtbank kan begrijpen dat de uitwisseling van financiële gegevens van eisers met de VS door de Belastingdienst een zekere impact kan hebben op eisers. Dat laat onverlet dat de rechtbank de beroepen moet beoordelen aan de hand van de aangevoerde beroepsgronden en de toepasselijke wet- en regelgeving (het toetsingskader).
An English translation of Paragraph 7 is:
7. The court first of all states that it understands the feelings of frustration and dissatisfaction expressed by the plaintiffs at the hearing. The plaintiffs have made it clear that they suffer adverse consequences as a result of American legislation due to their dual nationality. The court understands that the exchange of the plaintiffs’ financial data with the US by the Dutch Tax Authorities may have a certain impact on the plaintiffs. Nevertheless, the court must assess the appeals on the basis of the grounds for appeal put forward and the applicable laws and regulations (the assessment framework).
The decision of the Dutch court underscores the simple reality that U.S. citizenship is indeed a disability in the 21st Century.
Part B – A brief summary of the decision – Accidental Americans in the Netherlands do NOT have rights under Article 18 of the GDPR
In summary:
https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RBGEL:2025:5881Because the Netherlands has signed a FATCA IGA with the United States, individuals described in the IGA (U.S. Citizens) have NO rights under Article 18 of the GDPR!
A podcast with former KLM Captain Ronald Aries, describing the circumstances leading up to the court hearing is in Appendix A of this post.
Part C – Commentary from Mr. Aries’s lawyer Ellen Timmer
What follows are some parts of the decision unofficially translated.
The translation of the summary (‘inhoudsindicatie’) is as follows:
Summary
The plaintiffs obtained American citizenship because they were (coincidentally) born in the United States of America (USA). Under the Foreign Account Tax Compliance Act (FATCA), financial institutions worldwide are required to report annually to the American tax authority (the IRS) on bank accounts held by persons with American citizenship outside the USA. In response to FATCA, the Netherlands has concluded an intergovernmental agreement (IGA) with the US to enable the exchange of information at government level (NL IGA).
The plaintiffs requested the minister to restrict the processing of their financial data that the minister provides to the IRS. The minister rightly interpreted these requests as a request to restrict processing within the meaning of Article 18 of the GDPR and as an objection within the meaning of Article 21 of the GDPR.
The court ruled that the NL IGA approved by parliament constitutes the legal obligation referred to in Article 6(1)(c) of the GDPR on the basis of which the Dutch Tax Authorities provides data to the IRS. Therefore, the plaintiffs cannot successfully invoke Articles 18 and 21 of the GDPR. The ruling of the Belgian AP of 24 April 2025 does not lead to a different judgment.
The court shows some understanding in par. 7:
7. The court first of all states that it understands the feelings of frustration and dissatisfaction expressed by the plaintiffs at the hearing. The plaintiffs have made it clear that they suffer adverse consequences as a result of American legislation due to their dual nationality. The court understands that the exchange of the plaintiffs’ financial data with the US by the Dutch Tax Authorities may have a certain impact on the plaintiffs. Nevertheless, the court must assess the appeals on the basis of the grounds for appeal put forward and the applicable laws and regulations (the assessment framework).
The subject of the case is limited, this is explained in par. 8 and 9, it has to do with the start of the procedure (that I was not involved in):
8. At the hearing, the claimants argued that the Minister had interpreted their request too narrowly. It is not only a request to restrict processing as referred to in Article 18 of the GDPR, but also a request to erase personal data (‘right to be forgotten’). The latter request falls under the provisions of Article 17 of the GDPR. The Minister failed to recognise this, according to the plaintiffs.
9. The court sees no grounds for ruling that the plaintiffs’ requests should be interpreted so broadly as to include a reference to Article 17 of the GDPR. The court finds that the plaintiffs explicitly stated for the first time at the hearing that they believe they are entitled to data erasure as referred to in that article. However, the Minister was right to take the view that this is not apparent from the requests, the objections or the appeals. The Supreme Court judgment2 referred to by the plaintiffs at the hearing does not lead the court to a different conclusion. This judgment concerns the division of powers between the administrative court and the civil court and the question of whether, in that case, there was a legal obligation to provide information under the General Tax Act (AWR). That judgment is irrelevant to the assessment of the scope of the plaintiffs’ request.
9.1. This ground for appeal is unsuccessful.
10. This means that the court will only assess whether the Minister was right to reject the requests for the application of Articles 18 and 21 of the GDPR.
Then follows an explanation on GDPR, in par. 11 and further. In par. 12 the court goes to the matter of the case:
12. The court finds that the parties disagree on whether there is a legal basis for the processing of the claimant’s personal data as referred to in Article 6(1)(c) of the GDPR, or whether there is another basis for processing as referred to in Article 6(1) of the GDPR. The answer to this question is important for determining whether the plaintiffs can successfully invoke Article 18(1) and Article 21(1) of the GDPR. The court will therefore first assess whether there is a legal basis for the processing, then assess the rejection of the plaintiffs’ requests on the basis of the aforementioned articles, and finally consider the other grounds for appeal.
Is there a legal basis as referred to in Article 6(1)(c) of the GDPR for the processing of the plaintiffs’ personal data?
The court decides in par. 14.1 and further that the IGA is the legal basis:
14.1. The court finds that the NL IGA is a treaty between the Netherlands and the US that has been approved by parliament and that obliges both countries (and their tax authorities) to exchange the information specified in the treaty. In the opinion of the court, the approval by parliament means that it is a matter of Member State law as referred to in Article 6(3) of the GDPR. The NL IGA therefore constitutes the legal obligation referred to in Article 6(1)(c) of the GDPR on the basis of which the Tax and Customs Administration provides information to the IRS.
The court finds that it is not possible to object to processing because Article 6(1)(c) applies:
15. The court first of all finds that the plaintiffs do not dispute that the cases referred to in Article 18, first paragraph, preamble and under a to c, of the GDPR do not apply. Pursuant to part d of that paragraph, the right to restriction exists if the data subject has objected to the processing in accordance with Article 21, first paragraph, under e. However, pursuant to the first paragraph of Article 21, objections may only be lodged against the processing of personal data on the basis of Article 6, first paragraph, under e (performance of a task carried out in the public interest) or f (pursuit of a legitimate interest of the controller). Since the processing of the plaintiffs’ personal data is not based on these provisions, but on a legal obligation as referred to in Article 6(1)(c) of the GDPR, the plaintiffs do not have the right to object and the right to restriction does not apply either. This also follows explicitly from the judgment of the Supreme Court of 3 December 2021.
15.1. The grounds for appeal are unsuccessful.
Then follows:
Interim conclusion
16. The foregoing also means that the court does not need to consider the plaintiffs’ grounds for appeal regarding the alleged unlawfulness of the transfer of their data to the IRS. Nor will the court assess whether there are adequate safeguards as referred to in Section 76(1) of the Personal Data Protection Act (old) and Article 46(2)(a) of the GDPR. The plaintiffs would like the court to rule on this, but that is not possible in these proceedings. In this regard, the court also refers to the judgment of the Supreme Court of 16 December 2022, which states that the assessment of the lawfulness of the actual disclosure is reserved for the civil court.
Explanation:
“Personal Data Protection Act (old)” (Wet bescherming persoonsgegevens (oud)) is the previous Dutch act on data protection.\
The court ends deciding that the Belgian decision is not relevant. The final decision:
The court declares the appeals unfounded.
Comment:
The court refers to the judgment of the Dutch Supreme Court (Hoge Raad) which states that the assessment of the lawfulness of the actual disclosure is reserved for the civil court, this is a more complicated and expensive way to go to court.
Appendix A – Captain Ronald Aries and the Dutch Accidental Americans
On May 19 2025 the Netherlands court held the hearing which is the subject of this post. The issues included whether Article 18 of the GDPR prevented the transmission of the banking information of Accidental Americans to the IRS (as mandated by the FATCA IGAs). One of the Accidental Americans involved was former KLM pilot Ronald Aries. On May 30, 2025 I participated in a podcast with Mr. Aries You can listen to it here …
The podcast took place between the hearing on May 19, 2025 and the release of the decision on July 25, 2025. Unfortunately the court ruled against Mr. Aries and the Accidental Americans.
_____________________________________________________________
John Richardson – Follow me on X.com @Expatriationlaw