The way a country defines @taxresidency is first a moral issue and second a revenue issue. Yes, this even applies to US @citizenshiptax. – "Revenue Neutrality And A Move To Residence-based Taxation: Open Letter To Democrats Abroad" https://t.co/QQiflBDaHx via @taxconnections
— John Richardson – lawyer for "U.S. persons" abroad (@ExpatriationLaw) December 6, 2019
The automatic exchange of information under FATCA and the CRS have defined tax administration in the 21st Century. At the risk of over generalization:
FATCA: The United States requests information about individuals (that include the tax residents) of the IGA partner country be sent to the United States. In other words: information is transferred from a country where people do live to a country where they don’t live.
CRS: Countries request information from a country where the individual is NOT tax resident to the country where they are tax resident.
Collectively, FATCA and CRS are referred to as AEOI. There have been and continue to be challenges to both CRS and FATCA. These challenges have arisen in different countries and are based on FATCA and CRS violating the laws/constitutions of those countries.
A list of these challenges includes:
FATCA Related Challenges
1. The Republicans Overseas FATCA Legal Action Lawsuit
Basis of lawsuit: Primarily based on the claim that FATCA violates various U.S. constitutional provisions (including 4th Amendment – unreasonable search and seizure).
Status: Dismissed in the U.S.Courts because the plaintiffs lacked standing. None of the issues were ever argued on the merits.
2. FATCA Canada – Alliance For The Canadian Sovereignty FATCA lawsuit
Basis of lawsuit: This is a lawsuit in the Federal Court of Canada against the Government of Canada alleging that the FATCA IGAs violates Sections 8, 7 and 15 of the Canadian Charter of Rights and Freedoms. It also includes the claim that the FATCA IGA cannot be justified under the provisions of the Canada U.S. Tax Treaty.
Status: The plaintiffs lost at trial in the Federal Court. The decision is being appealed to the Federal Court of Appeal.
3. Association of French Accidental Americans
Basis of lawsuit: The plaintiffs argued that FATCA infringes the privacy rights of Accidental Americans and the the FATCA IGA could not be sustained because of a lack of U.S. reciprocity. Note that this case introduces the notion of “privacy rights” directly into the argument.
4. Jenny’s Crowd Funded U.K. FATCA lawsuit
Basis of lawsuit: The U.S., Canadian and French lawsuits were primarily based on violations of entrenched constitutional rights. This U.K. based lawsuit is based on the claim that because the FATCA demands are disproportionate that FATCA conflicts with the (relatively) new GDPR. The GDPR has given the U.K. plaintiffs an avenue of attack that has not been available in the U.S. or Canadian FATCA lawsuits.
Status: In the process of being funded.