Even if one believes that the real objective behind FATCA is, as professed, to snag wealthy overseas tax cheats, it isn’t hard to see that the collateral damage far exceeds any conceivable benefit.
December 5, 2014
Implementation of the infamous Foreign Account Tax Compliance Act (FATCA) got underway in earnest on July 1, 2014. A cacophony of protests and warnings could be heard as that date approached, and it has only grown louder as more and more people realize how startlingly draconian and wrongheaded this legislation is.
Even if one believes that the real objective behind FATCA is, as professed, to snag wealthy overseas tax cheats, it isn’t hard to see that the collateral damage far exceeds any conceivable benefit. Any additional tax revenue will be dwarfed by compliance costs, lost foreign investment, overseas financial institutions refusing to do business with Americans, and the alarming specter of more and more Americans renouncing their citizenship.
Jim Bopp, a serially successful Supreme Court litigator, and Mike Lee, Republican Senator from Utah, have taken their battle against FATCA on the road. Mike Lee is a member of the Senate Judiciary Committee who stepped onto the national stage with his rebuttal to President Obama’s State of the Union address in January this year. Senator Lee will explain how FATCA can be attacked legislatively.
As I write, they are in Paris addressing attendees of an event sponsored by the Association of Americans Resident Overseas (AARO) and Republicans Overseas. Additional stops are planned for London, Frankfort, Geneva, and Luxembourg. The tour may even extend to Asia.
Jim Bopp is preparing to challenge the constitutionality of FATCA in the Supreme Court and will be lining up plaintiffs for that court case during this tour. The AARO told its members that the pair will discuss the court challenge and explain why FATCA is “an invasion of privacy, an overstepping of authority on the part of the Treasury Department, and a tool for ‘cruel and unusual punishment.’” Their tour will build support for FATCA reform among 7.6 million Americans who live and work overseas but mostly do not vote in US elections. Organizers hope to register and get ballots to this huge block of voters—equivalent to the 13th-largest state.
It’s easy to understand why foreign banks are closing Americans’ accounts and refusing to open new ones: FATCA basically turns them into snitches for the IRS. Overseas Americans are treated like tax evaders—guilty until proven innocent. Foreign financial institutions (FFIs) are required to perform “due diligence” on “suspicious” customers, including flagging those who open accounts using foreign passports but are US citizens or permanent residents of the US. Banks that are not sufficiently attentive or fail to report suspicious customers risk being deemed “negligent” by the IRS and may be sanctioned.
The US Treasury Department seems quite proud of the fact that foreign banks are complying with FATCA. That compliance is not willing, however. The banks really have no choice. US correspondent banks in New York have been told not to provide correspondent services to foreign banks that don’t comply with FATCA. To tighten the noose, US banks have also been told not to do business with any foreign banks that assist banks that are not compliant. Thus, a compliant FFI that assists a noncompliant FFI is shunned by US correspondent banks on which it relies to process its own payments.
Closing the Gates
The poor, if they want to slip away from the clutches of the US before becoming wealthy, have a relatively easy time of it. It is not as easy for the wealthy to escape. The IRS imposes a tax on unrealized capital gains of both citizens renouncing their citizenship and of noncitizen green card holders who have been allowed to live and work in the US. Under Internal Revenue Code § 877A, the property of “covered expatriates” is taxed at 15% on a mark-to-market basis on the day before expatriation.
Senators Chuck Schumer (D-NY) and Bob Casey Jr. (D-PA) have more than once tried to enact the Ex-PATRIOT Act (Expatriation Prevention by Abolishing Tax-Related Incentives for Offshore Tenancy). Their bill would have doubled the tax on Americans leaving the US for tax reasons to 30%. These efforts to keep money from leaving our shores are reminiscent of exit taxes imposed on Jews leaving Nazi Germany in the 1930s and by Rhodesia in the 1970s. Grover Norquist, president of Americans for Tax Reform, suggested that Schumer “probably just plagiarized it and translated it from the original German.”
Since 1996 American citizens who renounced their citizenship to avoid taxes could be denied a visa to return to the US. The Ex-PATRIOT Act would have replaced that 1996 Reed Amendment with its own provision denying admission to “specified expatriates” and shifting jurisdiction from the Attorney General to Treasury and Homeland Security.
In 2012, in response to Facebook cofounder Eduardo Saverin renouncing his citizenship, Senator Casey warned that: “We simply cannot allow the ultra-wealthy to write their own rules.” Today many of those renouncing their citizenship aren’t the ultra-wealthy evading taxes. Many are overseas Americans who find that they can’t do business with FFIs, are not free to make their preferred investments, are hopelessly overburdened by trying to comply with incomprehensible and complex regulations, and are genuinely afraid of the severe consequences if they make a compliance mistake. Yet Bruce Ash, chairman of Republican Overseas Action Inc., concluded that the Obama administration “is building a virtual Berlin Wall to keep overseas Americans from renouncing their citizenship.”
The Obama administration’s response has been to increase the fee imposed by the State Department on those renouncing citizenship by 422% from $450 to $2,350.
The Accidental Kenyan
Finally, the international Internet-based Isaac Brock Society has filed a complaint with the United Nations on behalf of “‘Accidental Americans’ who now face the horrendous cost of getting rid of a citizenship they didn’t know they had and don’t want.”
I’m reminded of Don Whiteley’s excellent article in the Vancouver Sun, in which he asks: What if Kenya’s tax policy copied the US’s?
Don Grove is our Washington, D.C. correspondent. Don casts a jaundiced eye upon the activities of Congress, the White House, and the courts from his front row seat in the nation’s capital, where he is an attorney in federal practice and a managing partner in his law firm. Don entered the practice of law from a background in engineering and heavy industry, including the manufacture of trucks for municipal fleets and the design and prototype field testing of rough-terrain tractors in Australia, as well as researching and drafting patent applications and lobbying Parliament.