Category Archives: FATCA

Federal Court Of Appeal Upholds Trial Decision Ruling Canada/US FATCA IGA Is Constitutional

Circa 2014

In June of 2014 the plaintiffs in the ADCS (“Alliance For The Defence Of Canadian Sovereignty”) lawsuit launched their legal challenge to the constitutionality of the Canada US FATCA IGA. The proceedings have gone through a Federal Court hearing in 2015, a second Federal Court hearing in 2019 and the Federal Court Of Appeal hearing in 2022. It has been a “long haul” and the plaintiffs (Ginny, Gwen and Kazia) – true unsung heroes in life – deserve the thanks of all Canadians.

On September 21, 2022 the Federal Court of Appeal dismissed the appeal from the trial decision (which ruled against the plaintiffs).

In other words, the US FATCA law continues to be endorsed by the Canadian courts as being the law of Canada too.

Every human being is a minority somewhere. US citizens living outside the United States are a minority wherever they live. Furthermore, because of FATCA (the tool to enforce citizenship taxation) they will ALWAYS have fewer rights than others in their country of residence. What is astounding is that the United States is ensuring that it’s own citizens are subject to discrimination! Such are the effects of citizenship taxation.

The advancement and protection of the rights of minority groups is always a marathon and not a sprint. It requires the relentless dedication to the goal of achieving justice. At this moment I would like to recognize and thank Patricia Moon, Carol Tapanila and Stephen Kish for their tremendous efforts, personal sacrifices and focus on this cause.

It’s also important and appropriate to recognize the support of the hundreds of anonymous people who contributed financially (in some cases their pension payments) and in other cases their encouragement that this legal challenge was necessary.

The next decision is whether to seek leave to appeal to the Supreme Court Of Canada.

I will write more about this in the next few days. What follows is a copy of the decision.

A-370-19_20220921_R_E_O_OTT_20220921132516

Those wishing to better understand the history, purpose and progression of this lawsuit might go here:

https://adcsovereignty.wordpress.com/the-summary-trial-book-of-posts/

John Richardson Follow me on Twitter @Expatriationlaw

August 29 Letter From US Treasury To Dutch Government Reinforces Commitment To Impose US Citizenship Tax On Dutch Residents

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The world as of September 2022 … The following tweet (which generated a very lively discussion) references a letter sent by US Treasury to the Dutch Government.

The letter includes statements that bear on:

– the Dutch banks and their FATCA obligations

– FATCA

– Citizenship taxation

– the US commitment to imposing US taxation on Dutch residents who happen to be US citizens.

The main point of the letter seems to be to give the Dutch banks a “Blessing From Their US Overlords” that a notice of FATCA non-compliance will not presumptively follow from allowing US citizens (who live in the Netherlands) to have basic depository accounts (to receive pay and pay bills).

But, let’s get real. Under no conceivable interpretation of the FATCA IGA could the fact of having US citizen customers (with or without SSNs) cause the Dutch banks be in noncompliance with their FATCA obligations.

The Dutch banks simply do NOT want to deal with US citizen clients.

This sentiment is entirely reasonable and is a natural consequence of US regulatory overreach. The letter from Treasury is asking that the Dutch banks accept the worst of both worlds. First, to allow Dutch residents, who happen to be US citizens, to have a bank account at a bank of their choosing. Second, to behave in a way that is contrary to the business interests of the bank (as having US citizen customers certainly is). The arrogance displayed in Treasury’s letter is sufficient reason to be wary of having US citizen clients period.

The FATCA IGAs don’t require the Dutch banks to close “US Accounts”

1. As per the clear terms of the US/Netherlands FATCA IGA, Dutch banks are perfectly free to exempt all “depository accounts” with balances of less than $50,000 USD from FATCA obligations.

2. Even if the Dutch banks were in breach of FATCA obligations, the breach is of no consequence unless US Treasury (A) notifies the Netherlands of that non-compliance and (B) gives them 18 months to cure the noncompliance. (It’s perfectly obvious that Treasury can simply issue a proclamation that residents of the Netherlands are exempt from FATCA. But, history indicates they are not willing to do this!) In other words: FATCA noncompliance is not the problem. It’s Treasury’s reaction to FATCA noncompliance that is the problem.

Therefore, it’s clear the reluctance to have US citizen customers is not principally motivated by a concern of FATCA noncompliance. It’s because the US Government has ensured that US citizens are “toxic (taxic) carbon life forms” and it’s better to avoid them. The “toxicity” (taxicity) is caused by US citizenship taxation – specifically the US attempt to impose worldwide taxation on US citizen Dutch residents who live and pay tax in the Netherlands. In other words: the problem is caused by US citizenship taxation and not by FATCA.

Note that the following updated sentence reflects a change from the original sentence to reflect the comment below

Nevertheless, the threat of bank account closures and the need to respond to the immediate harmful effects of US citizenship taxation (including FATCA), have caused many Americans abroad including accidental Americans in the Netherlands, France and elsewhere to concentrate on the effects of citizenship taxation (FATCA) rather than on citizenship taxation itself. (See the comment below …)

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Be Careful Of Faulty Logic Claiming FATCA And The CRS Are Similar: Seven Ways They Are Not

Prologue

For those more interested in logic than in FATCA, you will find a discussion of the logical fallacy here.

Introduction

Last week I participated in a group discussion about FATCA and its effect on Accidental Americans. It’s difficult to have a discussion about FATCA that doesn’t include the CRS (“Common Reporting Standard”). Neither FATCA nor the CRS is well understood. That said, an introduction of the CRS into a discussion about FATCA detracts from a consideration of how FATCA impacts Accidental Americans (and others). Furthermore, there is a generalized assumption that the CRS is a positive development. Associating FATCA with the CRS enhances the “illusion” that FATCA is also a positive development.

In part, the discussion assumed that:

– FATCA (U.S. “Foreign Account Tax Compliance Act”) and the OECD CRS (“Common Reporting Standard“) were similar kinds of information exchange agreements; and

– To attack/criticize FATCA would be to criticize and have the effect of weakening the CRS.

These are absurd claims which are based on faulty logic. The faulty logic is that because FATCA and the CRS overlap in one aspect that they are functionally equivalent in intent, effect, purpose and other aspects. The argument appears to be based on the following reasoning:

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The FATCA IGAs Do Not Impose An Obligation Of Reciprocity On The United States

Introduction – The Question

Over the past few months, in unrelated contexts, I have heard the question asked:

Is FATCA reciprocal?

For example the Judges hearing the appeal in the ADCS FATCA Canada lawsuit asked (clearly assuming that it did) whether the FATCA IGAs imposed reciprocal obligations on the United States. Surely it must, they assumed. Recently the head of a FATCA fact finding mission asked in a meeting of individuals the same question. In neither case was a clear “yes or no” answer provided. Some participants were adamant that there WAS reciprocity. Others were adamant that there was no reciprocity. Some simply didn’t know. This post is an attempt to analyze the facts as they pertain to FATCA, consider whether the FATCA IGAs prescribe reciprocity of obligation and ultimately explain why there is NO meaningful reciprocity of obligation.

Some Important FATCAoids

The 2010 Statute

FATCA was signed into law by President Obama on March 18, 2010. The general provisions are found in Chapter 4 – Sections 1471 – 1474 of the Internal Revenue Code. The statute is coercive and is a US demand, under threat of sanction, that non-U.S. banks deliver information, about the bank accounts of residents of their country, to U.S. Treasury. The statute contemplates a one way flow of information to the United States without ANY reciprocity from the United States. (Any discussion of “reciprocity” must take place within the context of the FATCA IGAs.)

The 2014 Implementation Of FATCA Via The IGAs

The implementation of FATCA (via the FATCA IGAs) began (in many countries) on July 1, 2014. Because the statute does obligate the United States to provide any information to other countries, any obligation of reciprocity must be found in the IGAs.

Non-U.S. countries are required – pursuant to the FATCA IGAs – to transfer information about the holders of local financial accounts in their country to the United States of America. Notably the vast majority of account information transferred to the United States is information about accounts held by tax residents of the transferor country. In other words: pursuant to the FATCA IGAs, account information is transferred about accounts located in a country where the account holder actually lives to a country where the account holder does NOT actually live! To put this in context, imagine the following scenario:

You have a neighbour in a Canadian small town, who earns his income in Canada and pays tax on that income to Canada. That income is deposited into a bank account at a branch located in his community. That neighbour may be having his bank account information transferred to the United States. How could this be you ask? Surely this must be a mistake? The answer is “No it is not a mistake”. It’s the result of Canada enacting a U.S. law (“FATCA”) on Canadian soil. Pursuant to that FATCA law (described in numerous CBC articles), the transfer of account information is required because your neighbour was either born in the United States or was born in Canada to a U.S. citizen parent. So what you ask? Surely the circumstances of a person’s birth shouldn’t mean that a country where they don’t live has access to their banking information in the country where they do live? Wrong again. It’s about tax residency and about the U.S. unique definition of tax residency. You see, the United States defines any U.S. citizen as a tax resident of the United States (regardless of where that citizen lives). By defining “tax residency” in terms of citizenship, the United States is claiming that the tax residents of other countries are U.S. tax residents. U.S. citizens are subject to all (tax, forms and penalty) the provisions of the U.S. Internal Revenue Code. But wait you ask! My neighbour lives in Canada, pays tax in Canada and is a tax resident of Canada! (In fact the FATCA IGAs allow the United States – by tying the definition of U.S. citizen to U.S. law – to define ANY individual in Canada as a U.S. tax resident.) Yes, it’s true. Pursuant to the FATCA IGAs the United States is claiming Canadian tax residents as U.S. tax residents. This means that the United States is claiming the right to impose U.S. taxation on the Canadian employment income, earned by residents of Canada, which is already taxed in Canada. Yes it’s true.

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H.R. 5799 – Is it a #FATCA Same Country Exemption For Americans Abroad? – Let’s See

Introduction:

July 12, 2022 – Is there hope for Americans Abroad?

July 14, 2022 – An update

H.R. 5799 has been exciting news indeed! The purpose of this post is to see how H.R. 5799 actually changes the existing legislation. Does it actually deliver “Overseas Financial Access” for Americans Abroad? On June 21, 2022 this issue was considered in an IRS Medic video. The purpose of this post is to understand how H.R. 5799 would change IRC sections 1471(d) and 6038D. In order to understand this, I will take the amendments proposed in H.R. 5799, modify the text of those IRC sections and then analyze their impact. The new sections mandated by H.R. 5799 will appear in italics.

The Bottom Line (For Those Who Don’t Want To Read The Post)

With respect to Foreign Financial Institutions – When must FFIs harass suspected Americans?

JR Commentary: It appears that a Foreign Financial Institution has been given the authorization to opt to NOT report the “depository accounts” of certain Americans abroad without regard to the balance in the account. The $50,000 limit has been removed. The Foreign Financial Institution would have to be satisfied that the individual meets the residency requirement for the 911 Foreign Earned Income Exclusion. Notably this could apply only to “depository accounts” and would not apply to “custodial accounts”. The benefits to Americans abroad are minor. The administrative work required from the bank would likely be considered to be burdensome. The FFIs are still required to report custodial accounts.

This does not provide any assistance to the “Accidental Americans” who cannot comply with the demands for a U.S. Social Security Number or are unwilling to submit a W9.

With Respect to individuals – Reporting Requirements, Form 8938

JR Commentary: This section would relax the FATCA reporting requirements and could significantly water down the requirement to file Form 8938. What it seems to say is:

1. If the individual meets the requirements to use the 911 Foreign Earned Income Exclusion then with respect to BOTH depository and custodial accounts held by Foreign Financial Institutions in that same country … the obligation to File Form 8938 is considered without regard to the depository and custodial accounts held in that country. The way that “account” is defined in this section is:

“Except as otherwise provided by the Secretary, the term “financial account” means, with respect to any financial institution-

(A) any depository account maintained by such financial institution,

(B) any custodial account maintained by such financial institution, and

(C) any equity or debt interest in such financial institution (other than interests which are regularly traded on an established securities market).”

This could completely eliminate the Form 8938 requirement for many Americans who meet either the “bona fide residence” or physical presence tests in 911(d).

It is possible that this could provide some relief for those Americans abroad who are already filing Form 8938.

Now on to the post …

About FATCA

FATCA was a collection of amendments to the Internal Revenue Code. Generally, FATCA imposes requirements on both (1) Foreign Financial Institutions and (2) Individuals. H.R. 5799 contains provisions which affect both. The post is for the purpose of seeing exactly what the relevant statutes look like after the changes.

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H.R. 5800 – To establish a commission to study how Federal laws and policies (except US Citizenship Taxation) affect United States citizens living in foreign countries

The Readers Digest Version

Yes, this post is a bit long. If you don’t want to read it, here is the “Readers Digest” version in the form of a tweet:

Now, on to the explanation …

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@ADCSovereignty #FATCA Appeal – March 30, 2022 – Reporting On The Hearing In Twitter Time

As reported by American Expat Finance and the Isaac Brock Society, the ADCS-ADSC.ca FATCA appeal was heard on March 30, 2022.

As I watched the hearing I tweeted my thoughts. Win, lose or draw the goal is to get the case before the Supreme Court of Canada. Therefore, today’s appeal should be seen as an important step down that road.

I suggest that you:

1. Read this summary of the ADCS FATCA lawsuit to understand the context

2. Read this article from a Canadian law firm which references the FATCA lawsuit

3. Read the article at American Expat Finance

4. Click on the link below to see my thoughts and observations as the hearing unfolded.

https://threadreaderapp.com/thread/1509210940167892997?refresh=1648676869

In addition, a bit more history on this lawsuit …

John Richardson – Follow me on Twitter @Expatriatonlaw

Biden 2023 Green Book: Six Ways The Proposals Would Affect Americans Abroad

Update April 13, 2022 …

Here is yet a seventh waythe treatment of gifts as capital gains – that the Biden Green book would impact Americans Abroad

Introduction

As long as the United States employs citizenship taxation any proposed changes to the US tax system will have an impact (some intended and some unintended) on Americans abroad.

The Biden Green Book for fiscal year 2023, released on March 28, 2022, contains a number of proposals to both increase tax rates and increase the tax base by increasing the number of activities that are taxable events. Generally the proposals include a number of provisions to create and enhance taxation on both income from capital and capital itself. These provisions continue to generate discussion in the mainstream media including: The New York Times, Washington Post and Wall Street Journal. This is certain to generate much discussion in the tax compliance community.

The 2023 Green Book is available here.

Much will be written about how the proposals would affect resident Americans. Far less will be written about how the proposals would affect Americans abroad. The US rules of citizenship taxation steal from Americans abroad (and the countries where they reside) in hundreds of ways. Some are intended and foreseeable. Others are the unintended consequences that result from tax changes that apply to people who are not considered in the political process.

Significantly the Green Book does not suggest a move away from US citizenship taxation toward resident taxation as embraced by the rest of the world. In their totality, the proposals (particularly those that create income realization events when a gift is made) suggest a worsening of the situation for Americans abroad. That said, one proposal “might” (depending on Treasury) allow for the relaxation for the 877A Exit Tax rules, for a narrow group of Americans abroad under certain circumstances.

The purpose of this post is to identify six ways (and I assure you that there are more) that the Green Book would impact Americans abroad. The “Group Of Six” includes:

1. Raising The Corporate Tax Rate To 28 percent – Creating Subpart F Income and Making More Americans Abroad GILTI – Page 2

Verdict: This will have the effect of increasing the number of Americans abroad subject to taxation on income earned by their small corporations but not received by them personally.

2. An increase in the Corporate rate would increase the GILTI rate (suggesting to 20 percent) – Page 2

Verdict: More Americans abroad will be GILTI and will possibly (depending on a combination of country specific factors and their specific circumstances) be subject to GILTI taxes at a higher rate).

3. Reducing Phantom Gains And Losses: Simplify Foreign Exchange Rate And Loss Rules For Individuals And Exchange Rate Rules For Individuals – Page 90

Verdict: This in interesting. While reinforcing that Americans abroad are tethered to the US dollar it does suggest a recognition of the unfairness of how the phantom gain rules harm the purchase and sale of residential real estate outside the USA). Imagine how this would interact with the proposed rules converting gifts to taxable capital gains?

4. Strengthening FATCA: Provide For Information Reporting by Certain Financial Institutions and Digital Asset Brokers For the Exchange Of information – Page 97

Verdict: This is an attempt to reinforce the core principles of FATCA which are about the identification of US citizens outside the United States.

5. Expatriation – The Stick: Extend The Statute Of Limitations For Auditing Expatriates To Three Years From The Date From Which 8854 Should Have Been Filed (Possibly Forever) – Page 87

Verdict: This is theoretically very bad. It means that those who renounce without filing Form 8854 would be subject to a lifetime of risk. Practically speaking these provisions are not understood on the retail level. Hence, I doubt this will influence many people.

6. Expatriation – The Carrot: Exempting Certain Dual Citizen Expatriates From The Exit Tax – Page 87

Verdict: This is good news for the narrow group of people impacted by this – mainly “Accidental Americans”. It is bad news for the rest because the existing rules will continue to apply to those “who are left behind”.

I assure you that the Green Book contains a large number of ways that Americans abroad will be impacted. I will leave it to others to add to this list.

The principle is:

Citizenship taxation can steal from Americans abroad at least a thousand ways. If you can understand even one hundred of them you are doing well!

Summary: Once again this shows how all proposed changes to US tax law impact Americans abroad in a world of citizenship taxation. There is nothing in this that suggests a move toward residence taxation. There are few crumbs which might make citizenship taxation easier to live with (example relaxing phantom gains). But, on balance these provisions are a “doubling down” on the problems of citizenship taxation. The provision to allow easier expatriation for “Accidental Americans” does nothing to make life easier for the rest.

If you have seen enough you can stop here. For those who want more of the details and explanation, continue on …

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The Story of US Citizenship Taxation and FATCA: Documenting The Issues

Few US residents are aware of US citizenship-based taxation and FATCA. Legislative change will be aided by educating US residents and politicians about US citizenship-based taxation, FATCA and how they interact.

Citizenship-based taxation and FATCA are difficult to explain in short clips. It’s simply too difficult. At it’s core:

Citizenship-based taxation is a form of taxation where the USA imposes direct taxation on income earned outside the United States by individuals who do not live in the United States. FATCA is the law that is the enforcement tool for citizenship-based taxation.

In order to provide a summary of resources which can be used to better explain US citizenship-based taxation and FATCA, I have compiled the following resources.

https://www.linktr.ee/fatca

Please circulate this link widely!

John Richardson – Follow me on Twitter @Expatriationlaw

John Richardson Interview With Danielle Smith About FATCA and @Citizenshiptax

On November 12, 2019 CBC Reporter Elizabeth Thompson published an interesting article. The article, reported that “Nearly a million bank records sent to IRS“. Ms. Thompson’s article is quite brilliant for one simple reason. The article focuses on the fact that it is the bank records of CANADIAN RESIDENTS that are being sent to the IRS. Specifically the article leads with:

Number of government transfers of records of bank accounts held by Canadian residents to U.S. has been rising.

The number of banking records the Canadian government is sharing with U.S. tax authorities under a controversial information-sharing deal has increased sharply, CBC News has learned.
The Canada Revenue Agency sent 900,000 financial records belonging to Canadian residents to the Internal Revenue Service in September — nearly a third more than it sent the previous year. The records were for the 2018 tax year.

It also has updated the number of records shared for the 2017 tax year to 700,000 from the 600,000 originally reported.

“That’s a lot,” said John Richardson, a Toronto lawyer and co-chair of the Alliance for the Defence of Canadian Sovereignty, which is fighting the information-sharing deal. “That’s a lot of files.”

The number of financial records of Canadian residents being shared with the IRS has risen steadily since the information sharing agreement began — from 150,000 in 2014 to 300,000 in 2015 and 600,000 for the 2016 tax year.

Now, that (as reflected in the comments) is what got people’s attention! The article does not focus on FATCA (which is often portrayed in the media as tax evasion law). Rather the article focuses on the effect of FATCA and describes FATCA as:

The information transfer is the result of a controversial information-sharing agreement between Canada and the U.S. that was negotiated after the U.S. government adopted the Foreign Account Tax Compliance Act (FATCA).

The law, adopted in a bid to curb offshore tax evasion, obliges foreign financial institutions to report information about accounts held by people who could be subject to U.S. taxes.

Unlike most countries, the United States levies income taxes based on citizenship rather than residency; some Canadians end up facing U.S. taxes because of an American parent, or because they were born in a hospital on the other side of the border.

The article makes the connection between the transfer of information to the IRS and the imposition of U.S. tax on the holders of those accounts! In other words, this information sharing agreement (called FATCA) is described as being for the purpose of helping the United States of America (that “Great Citadel of Freedom and Justice”) impose direction taxation on Canadian residents. Yes, it’s true.

First, the United States imposes worldwide taxation, according to the U.S. Internal Revenue Code, on certain residents of other countries.

Second, the U.S. Internal Revenue Code imposes a separate and more punitive tax system on residents of other countries (here are 12 different examples) than it does on U.S. residents (“Separate but equal” anybody).

Third, the information sharing agreement (referenced in the article) called FATCA is a tool to enable imposing U.S. taxation on the residents of Canada and other countries.

Fourth, the primary impact of FATCA is on individuals who were born in the United States but do not live in the United States. Individuals experience the impact of FATCA in the following two ways:

1. Impact Via The Tax Compliance Industry: It pressures them to comply with the tax and reporting provisions of the Internal Revenue Code. Some people enter the U.S. tax system and effectively agree to U.S. taxation.

2. Impact Via The Banks: In some countries people have experienced limited access to bank (and other financial) accounts unless they are willing to supply U.S. tax identification numbers.

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John Richardson – Follow me on Twitter @Expatriationlaw