Transcript of Hearing April 26, 2017 House Committee on Oversight & Government Reform-Meadows

Courtesy of Andrew Grossmann@andygr 28th May 2017 from TwitLonger TwitLonger

This is a transcript from the FATCA Hearing held in Washington D.C on April 26, 2017.
I think it is interesting to actually read the testimonies that we heard that day. Some of the more striking aspects seem even more shocking and the mistakes stick out like sore thumbs……………..All emphases are mine – Patricia Moon

 
HOUSE COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, SUBCOMMITTEE ON GOVERNMENT OPERATIONS HEARING ON THE FOREIGN ACCOUNT TAX COMPLIANCE ACT

APRIL 26, 2017
 
SPEAKERS: REP. MARK MEADOWS, R-N.C. CHAIRMAN REP. JIM JORDAN, R-OHIO REP. THOMAS MASSIE, R-KY. REP. JODY B. HICE, R-GA. REP. MARK SANFORD, R-S.C. REP. RON DESANTIS, R-FLA. REP. DENNIS A. ROSS, R-FLA. REP. ROD BLUM, R-IOWA REP. JASON CHAFFETZ, R-UTAH EX OFFICIO
 
REP. GERALD E. CONNOLLY, D-VA. RANKING MEMBER REP. CAROLYN B. MALONEY, D-N.Y. DEL. ELEANOR HOLMES NORTON, D-D.C. REP. WILLIAM LACY CLAY, D-MO. REP. BRENDA L. LAWRENCE, D-MICH. REP. BONNIE WATSON COLEMAN, D-N.J. REP. ELIJAH E. CUMMINGS, D-MD. EX OFFICIO
 

WITNESSES: SEN. RAND PAUL, R-KY.

JAMES BOPP, JR., ATTORNEY, THE BOPP LAW FIRM, PC

MARK CRAWFORD, DIRECTOR, AKSIONER INTERNATIONAL SECURITY BROKERAGE

DANIEL KUETTEL, FORMER U.S. CITIZEN LIVING IN SWITZERLAND WHO RENOUNCED HIS U.S. CITIZENSHIP DUE TO FATCA

ELISE BEAN, WASHINGTON CO-DIRECTOR, LEVIN CENTER AT WAYNE LAW WAYNE STATE UNIVERSITY
 
 
[*] MEADOWS: (OFF-MIKE) hear from our witnesses about FATCA’s effect overseas and on our treasury. However, our first witness, Senator Rand Paul, a friend, a patriot – truly someone who is willing to not only put his money where his mouth is but someone who has defended liberty and freedom each and every day, and you’re certainly welcome.

He has a briefing, as I understand it, at the White House coming up so we’re happy to have you testify first, Senator. And then the Ranking Member Connolly and I will give our statement.

So in recognition of that, I’d like to recognize the Honorable Senator Rand Paul.

PAUL: Thank you, Chairman Meadows. And thank you for inviting me to this hearing on the unintended consequences of the Foreign Account Tax Compliance Act.

And also for allowing the American people an opportunity to hear how FATCA undermines their privacy through the bulk collection of their foreign financial records. I opposed FATCA for two reasons. First, it violates our privacy rights and second, I think the compliance costs actually exceed the revenue that it brings in.

Regarding privacy, the Fourth Amendment prevents the government from seizing or searching a person’s house or papers, including their financial records, unless the warrant shows individualized suspicion and probable cause.

This protection was included in the Bill of Rights in response to general warrants that have been issued by the British.

FATCA, I think, undermines the very heart of this privacy right. It forces foreign financial institutions to hand over U.S. citizens’ personal financial records without a warrant, without a probable cause, and without naming them individually.

FATCA also violates the Fourth Amendment by demanding all data on all Americans with overseas accounts. The demand is not individualized but collected rather, in bulk, without specifying a specific suspicion or cause.

The government is using the heavy hand of the IRS to tell foreign financial institutions that they must hand over the records of all U.S. citizens and if they dare to defy the government, they will be hit with a crippling tax penalty that no business could survive.

This turns the Fourth Amendment on its head. It presumes that every American with money overseas is a criminal with no proof or even suspicion of criminal activity.

You are guilty until proven innocent. These are not the principles on which our country was founded and we should not stand for it.

This is not just my concern. In January, the IRS’s own Taxpayer Advocate raised the same concern in her annual report saying that FATCA’s operative assumption appears to be that all such taxpayers should be suspected of fraudulent activity unless proven otherwise.

Think about that. Guilty until proven innocent. No one should be deceived that the data being collected by the IRS is somehow harmless or benign.

In addition to having to report the name, address, taxpayer identification number of each account holder, the government requires financial firms to report the account number, the account balance, the value at the end of the reporting period, and all the inflows and outflows of the account.

Basically every one for whom you’ve had a financial transaction or written a check to.

Comparable information is not required to be disclosed for those who have domestic accounts. So it’s a double standard.

You have one standard for Americans living overseas and another standard for Americans here.

The government has no business asking for or knowing this information about its citizens and certainly not without a reason to believe that the person is doing something wrong.

FATCA essentially gives the IRS all your overseas financial data without going through any court to decide if the government has a right to see your documents.

FATCA seems to be also a solution in search of a problem. The Taxpayer Advocate finds also a lack of comprehensive statistical data establishing the existence of widespread, non-compliance or fraud by taxpayers with foreign accounts.

They don’t find evidence that there is excessive problems with people not paying their taxes. It’s about the same rate as people domestically.

So why will we be giving the government special powers a lower standard to look at our information?

My biggest concern about FATCA is that it treats all nine million Americans living abroad as guilty until proven innocent.

FATCA acts as if the Bill of Rights does not apply to citizens dealing with their U.S. government depending on where they live.

After FATCA was passed, some foreign banks even began to refuse to do business with Americans. Even canceling their accounts to avoid the red tape and possible draconian penalties.

Individual Americans are not the only ones bearing the burden either. Estimates of initial cost of compliance reach into the tens of billions of dollars globally.

Ongoing compliance just for U.S. companies cost more than $160 million dollars a year.

In addition, FATCA has led to foreign countries seeking information on citizens residing in the United States. Indeed, over 60 countries now have signed reciprocal Intergovernmental Agreements called IGAs.

The IGAs allow bilateral exchange of financial data meaning that the U.S. will now spy on foreigners who have accounts in our country as well, and we will aid and abet foreign countries in invading their citizens’ privacy as well.

Think about this. This may mean sending financial information to countries who are known as human rights abusers such as Saudi Arabia, China, Tunisia.

One can imagine the risks to a political dissonant who comes to our country to escape tyranny and then we find that we’re going to be sending their information back to a tyrannical government? The tyrannical government they fled? These bilateral agreements, these IGAs have not received any senate certification, no vote, no vote in the House, no congressional authority at all. They are just done by the administration with no authority.

Their constitutionality is currently being challenged in court and I think you will hear from some of those involved in that challenge.

My hope is that this hearing will shed some light on this abusive law and lead to a demand for action.

Chairman Meadows and I have sponsored a bill to correct this injustice and repeal FATCA. Congress should pass our bill this year and put an end to this madness.

Thank you very much for letting me testify.

MEADOWS: Thank you, Senator. And you’re very complimentary in terms of my involvement but it’s basically been your leadership, Senator, that not only has highlighted this but that continues to stand as a — a vigilant sentinel to protect our Fourth Amendment privacy.

And — and I just want to say thank you and it’s — it’s an honor to have you articulate this. You brought this issue to light when no one was paying attention, and yet I found that universally you’re being applauded for your protection of those constitutional rights that our founding fathers so wisely enshrined.

PAUL: This is a big, big deal to the nine million Americans who live overseas. And you know, we’re getting ready to come up on tax reform. While this may be a small issue to many other Americans, it’s a big deal to them.

My hope is that the bill we have worked on maybe we could try to get into the tax reform package because it’s an — it’s an issue I think that should bring right and left together because, you know, sometimes the right is more concerned with financial affairs and the left more concerned with privacy and with civil liberties.

But really I think right and left could come together to say, “You know what? We should protect everybody’s Fourth Amendment rights.”

Thank you for letting me attend.

MEADOWS: Well, thank you. I know you’ve got to go to the White House so you’re hereby dismissed. Thank you for your testimony. Your entire written testimony will be made part of the record.

I thank the ranking member for allowing you to come in and testify early. The Chair now recognizes himself for his opening statement.

We’re certainly pleased to hold this hearing to examine the Foreign Account Tax Compliance Act, also known as FATCA.

FATCA requires foreign financial institutions to investigate their own account for suspected ties to the United States. Now hear that again: investigate their own accounts for suspected ties to the United States and then report those accounts to the IRS for further investigation.

Now that doesn’t sound crazy in its face, but as it turns out, FATCA is a failure at a number of different levels.

By its drafters own estimate, of whom we’re going to hear expert testimony today, and certainly the work that has been done in some of those investigative modes is to be applauded.

I’ve looked at the record and — and — so I look forward to seeing that.

But even by those — those own estimates of the drafters, it was seeking to reduce tax evasion overseas and it only does that by less than one percent.

The senator mentioned this, you know. So less than one billion out of an estimated $100 billion in lost revenue overseas.

Commissioner Koskinen, who has testified before this committee a number of times, has given sworn testimony regarding the high rate of return on investment for spending on the IRS with normal enforcement activities.

In fact, his public statements indicate a return of up to $20 for every $1 that is invested on enforcement.

So a $20 return in revenue for $1 invested in enforcement. By contrast, FATCA brings in well under, by any estimations, half of that amount on a per dollar basis that is invested.

So the IRS has asked for about $200 million to implement FATCA in FY 2017 budget. So by the commissioner’s own estimates – not by mine, not by any think tank – by the commissioner’s own estimates of enforcement returns, just shifting the money from FATCA to the general enforcement areas would increase our tax revenues by over a billion dollars.

And so if we’re looking at proper allocation — and this is without spending one more penny on the overall budget for the IRS — it’s just shifting it. And so when we look at that, that’s a significant return.

FATCA also unfairly and unilaterally burdens our biggest trading partners and strongest allies.

I found out about this really by some of the people that we’ll hear from today when I was in Israel And with — with some of the issue that they started referring to this thing called FATCA that I had no idea what it was. And — and so, you know, as a good politician I was saying, “Well, I’ll get back to you on that.” And so I went very quickly and googled it to figure out exactly what we were talking about.

And so as I — I look at this, we are looking at unbelievable implications here. When we look at the compliance cost on foreign banks and international — on the international economy, we’re looking at up to $200 million dollars per bank to comply and potentially hundreds of billions of dollars overall.

Other countries are understandably upset that we’re hurting their economies and are doubly upset that we have not yet offered them access to our own taxpayer data.

So we — we basically said, “You have to comply.” There was this reciprocal agreement and we’ve said, “Well, you have to comply but we’re not going to comply.”

It was a double standard that we see. And so many of the foreign financial institutions have tried to avoid these FATCA compliance costs by refusing to take U.S. citizens. That’s what highlighted it for me.

And I said, “You’ve got to be kidding me?” They’re saying, “Well, if you’re a U.S. citizen they don’t want to touch you in some of these foreign financial institutions just because of the compliance costs.”

So expatriates have had to make the tragic choice between keeping their citizenship and preserving their financial stability.

And to illustrate that point, I want to share a video that has been shared with the subcommittee, to this committee. And so if we pause and maybe take a look at this video.

It’s approximately three minutes in length.

VIDEO: I’m Donna Lay (sic) Nelson (ph). I come from proud New England Yankee stock. In fact, my ancestors came over on The Blessing in 1635 to the Massachusetts Bay Colony.

I’m a life long Democrat and an activist. I’ve often written Congress, I’ve called Congress members on issues I care about, and I have always voted.

My career was working with credit unions, often helping middle class and lower class people with their finances.

Because of FATCA, I am no longer a U.S. citizen. I had to choose between a normal financial life in Switzerland and my birth country. That decision was so painful that after I renounced, I thought I died (ph). It still hurts today.

I’ve always paid my U.S. taxes and in many ways, I was double taxed. I needed a specialized accountant to keep me in compliance even though my income was low. It cost me about $1,200 a year to pay about $700 in taxes, which does show my income was limited.

After FATCA was passed my Swiss bank called me and in the meeting they told me if I did anything wrong my account would be closed and I could not get another. The reason: I was American.

About the same time, I began my first of two battles with breast cancer. It was a very difficult period.

I started to research FATCA and its implications. At that point, many American expats were talking about being denied financial services as well as having job problems because of FATCA.

I realized if I wanted to continue living in Switzerland, I would have to renounce my U.S. citizenship.

Once inside the embassy, a woman explained to me that I could never, ever get my passport back. I was shaking. Would I be able to visit my daughter and my beloved stepmother in the states? I was crying. I took the oath, separating me forever from my birth country.

As I walked back toward the bakery, I threw up. On behalf of myself and millions of Americans living overseas: please, please, please repeal FATCA.

MEADOWS: Donna is not alone. FATCA has led to a number of U.S. expatriates renouncing their citizenship. And so hopefully today we’ll hear from some of our witnesses on how we can address this particular issue in a meaningful way and hopefully return the accountability that we’re all for to the proper balance of protecting our — our personal Fourth Amendment rights and yet still making sure that we hold our — our government accountable.

And with that, I’d like to recognize the ranking member for his opening statement.

CONNOLLY: Thank you, Mr. Chairman. And thank you for having a hearing and — and maybe this slightly different point of view about the issue.

While acknowledging there are problems with the act and with its implementation, the United States taxes the foreign income of its citizens.

And we’re not alone. Most countries with income taxes do the same. Citizens pay taxes on all the income they earn regardless of where they earned it.

There are benefits to the system. Americans are the most productive in the world and the system ensures that the wealthiest among us cannot avoid paying taxes simply by moving money abroad.

It’s quite simple. If you receive benefits by being an American, you should pay your fair share.

And I say that, but no American ought to have to forswear his or her citizenship in turn to comply with the law.

We obviously are very sympathetic to the woman we just saw on that video.

This tax system assumes everyone plays by the rules and pays their taxes according to the law.

We know, unfortunately, in the past not everyone did play the game fairly. While the law has, for decades, required offshore account holders to file reports with the Treasury Department, not everyone did.

Extremely wealthy tax cheats, not the woman we just saw on that video, hired expensive lawyers who knew how to evade the system.

Whistleblower leaks changed things. Congress learned of thousands of Americans who were willfully avoiding paying their taxes in overseas income without disclosing that information to the IRS.

These weren’t simply inadvertent mistakes, they were willful efforts to avoid taxes.

Congress chose to take some action. That action came in the form of this act: FATCA – the Foreign Account Tax Compliance Act.

Under that act, foreign financial institutions are required to disclose to the IRS the accounts of U.S. taxpayers.

The Wall Street Journal reported that an IRS limited-amnesty program pursuant to this act brought in $9.9 billion dollars in taxes, interest, and penalties from 55,000 taxpayers who hadn’t paid their taxes on income earned abroad.

FATCA is an incremental step in terms of tax collection. U.S. companies and financial institutions already provide taxpayer information to the U.S. government through 1099 forms.

And taxpayers with assets abroad file with the IRS the same information FATCA collects.

Now that information is also coming from foreign financial institutions since many taxpayers previously had not been filing.

Despite the new law, banks are still lending and it is possible for Americans to get accounts. Citigroup, for example, operates in more than 160 countries and will give Americans abroad bank accounts and mortgages.

Because of this act, international tax collection has changed. Countries around the world are adopting the common reporting standard which is based on FATCA.

Under the common reporting standard, countries collect identifying information from account holders.

They then share that information with the foreign account holders’ country of citizenship and receive information on the accounts of their own citizens.

The information collected under the common reporting standard is broader than that required by FATCA.

Common reporting standard countries collect information on all account holders, not just U.S. citizens.

With a hundred such nations committing to implementing the standard by 2018, efforts to evade taxes are expected to diminish.

I certainly don’t mean to suggest there haven’t been problems with FATCA, we just saw one.

Although it’s important, the law does not require anyone to give up their citizenship.

The advice came, as I understand it, from a Swiss bank. But nonetheless, we have a victim here.

Nobody ever should feel they have to give up their U.S. citizenship. So there are kinks clearly to work out and I think that’s why this hearing can be very helpful.

And we want to make sure that people like Ms. Nelson and Mr. Kuettel are protected.

Repealing FATCA, however, entirely would not restore their citizenship and could harm our government’s ability to collect the taxes owed.

We’ve had hearings in this committee about the fact that hundreds of billions of dollars, not overseas, but hundreds of billions of dollars go — are left on the table uncollected because the IRS doesn’t have the staffing or resources or mechanisms, frankly, to collect taxes owed but not collected.

And so, you know, as we wrestle with the fairness of this act and its implementation problems, and certainly the injustice that individuals such as the one we just saw in that video have experienced, so we want to — we certainly want to address that.

But we also want to make sure that the United States government is — is being fair to all of its citizens by making sure everybody pays their fair share.

So I look forward to the hearing. I look forward to hearing testimony from our witnesses. And with that I yield back, Mr. Chairman.

MEADOWS: I thank the gentleman for his thoughtful opening statement. And we’ll now go ahead and allow the witnesses — if you’ll make your — your way forward. And I appreciate your flexibility with regards to allowing Senator Rand Paul to go first.

And so we would love to welcome — and we’re going to keep these introductions brief. I understand we may have votes coming up here at 2:45 to 2:50 range and — and so we’re going to try to push a little bit quicker here. But I’ll hold the record open for five legislative days for any member who would like to submit a — a written statement.

So in recognizing our panel of witnesses, I’m pleased to welcome Mr. James Bopp, Jr., welcome. Mr. Mark Crawford, welcome. Mr. Daniel Kuettel, welcome. And Ms. Elise Bean – welcome to you all.

Pursuant to committee rules, witnesses will be sworn in before they testify. So if you will please rise and raise your right hand.

Do you solemnly swear or affirm that the testimony you’re about to give will be the truth, the whole truth, and nothing but the truth?

BOPP: (OFF-MIKE)

CRAWFORD: (OFF-MIKE)

KUETTEL: (OFF-MIKE)

BEAN: (OFF-MIKE)

Thank you. You may be seated. And please let the record reflect that the witnesses all answered in the affirmative.

In order to allow time for discussion, I’d ask that you limit your oral testimony to five minutes, but your entire written statement will be made part of the record.

And so we’ll now recognize you, Mr. Bopp, for five minutes. You need to hit your — your little button right there.

BOPP: Thank you. Thank you, Chairman Meadows, and thank you for the opportunity to testify.

In my oral presentation, I will summarize the key points of my written testimony.

Republicans overseas, for which I serve as treasurer and general counsel, advocates for the rights of interests of overseas Americans.

As this hearing will demonstrate, our overseas Americans are the victims of a draconian system of tax laws that disrupts their lives, deprives them of living, and strips them of their basic constitutional rights as U.S. citizens.

At the heart of this is the fact that U.S. — the United States is only one of two countries in the entire world that tax its citizens based upon their citizenship, not their residence.

So the long arm of the IRS reaches out to the nine million U.S. citizens overseas and taxes them on — on — and taxes them.

For the same reason that President Donald Trump has advocated for territorial taxation on corporations, U.S. citizens should also be taxed where they reside. The 2016 Republican National Platform calls for this.

But it is worse than this. The Bank Secrecy Act resulted in U.S. citizens being required to file a FBAR report which applies to U.S. citizens and requires them to report to the IRS for any account which they have in a foreign bank or foreign asset and if the value is greater than $10,000 dollars.

Willful violation of this law results in a 50 percent penalty on the highest value of that account.

On top of this, in 2010, the Democrat Congress passed FATCA, which requires more reporting of personal and financial information by individuals and by foreign financial institutions.

Individuals are required to file a FATCA report annually if they have $50,000 dollars in foreign accounts or foreign assets, whether they are in the United States — living in the United States or living abroad.

That report includes the name, account balance, maximum value of the account – and there’s a $10,000 dollar penalty.

In addition, foreign financial institutions have one of three choices. One is to report to the IRS on every single U.S. citizen account holder the account information, the value, and then the gross receipts and gross withdrawals of that account or two, purge themselves of all U.S. account holders and certify that to the IRS or three, suffer a penalty of 30 percent of all transfers of all funds for all purposes from the United States to that bank.

In addition, the Obama administration has negotiated illegal Intergovernmental Agreements which provide, in most cases, that the banks, instead of reporting to the IRS, report to the foreign government — require the foreign banks to report to the foreign government of information about U.S. citizens which is then reported by the government to the IRS.

These agreements have not been approved and are unconstitutional. Thus, FATCA is a sweeping financial surveillance program of unprecedented scope that allows the IRS to peer into the financial affairs of any U.S. citizen with a foreign bank account.

In so doing, FATCA has imposed enormous costs on individual Americans abroad, as this hearing will demonstrate.

And as the Democrats abroad found out in a survey of Americans overseas, these survey results show the intense impact FATCA is having on overseas Americans.

Their financial accounts are being closed. Their relationships with non-American spouses are under strain. Some Americans are being denied promotion or partnership in business because of FATCA reporting. And some are planning to — contemplating renunciation of their own U.S. citizenship.

A decade ago, about 200 renounced. Now the number is up to 6,000 last year. These Americans are in many ways ordinary, middle class Americans being affected in extraordinary ways.

FATCA has also imposed an enormous financial cost on foreign financial institutions, and through the IGAs, has converted foreign governments and foreign banks into IRS agents who are surveilling U.S. citizens and reporting to the IRS.

FATCA has furthermore denied U.S. citizens basic constitutional rights: equal protection, due process, Fourteenth Amendment protection against unlawful search and seizure, Eighth Amendment protection against excessive finds.(sic)

I’m lead attorney in Crawford v. United States Department of Treasury that is making these claims.

At the bottom — the bottom line about all of this is that the Americans abroad are U.S. citizens who should enjoy the individual right and freedom to reside overseas if they choose without penalty.

And American — America benefits when they do. They are ambassadors for America who promote this — this country and its values and often are directly involved in promoting American business and products overseas.

However, the U.S. government has placed a scarlet letter on the forehead of every American and it is stamped U.S.A. And as a result, they are treated as pariahs by foreign banks and employers. This is wrong and it needs to stop.

MEADOWS: Thank you, Mr. Bopp. Mr. Crawford, you’re recognized for five minutes.

CRAWFORD: Thank you very much for allowing me to be here today to share my firsthand experience regarding the consequences of FATCA from the perspective of an international businessman.

My name is Mark Crawford. I’m an American citizen and I do not hold any other citizenship.

But various times I’ve been a resident of the United Kingdom, Albania, Montenegro, and Greece.

The politics that divide Americans at home don’t often divide those of us abroad. Most of the nine million Americans living overseas are ordinary citizens who are living their lives, raising families, studying, and working.

We are just Americans, and though we’re often far from home, America is still our home and the U.S. Constitution is still our Constitution.

In my written submission, I outline in more detail about my personal background having lived and worked across three continents over a 25-year period as a teacher in China, a missionary in Albania, a graduate student in England, a venture capitalist in the Balkans, a banker in Montenegro and Serbia, and now as an entrepreneur involved in finance, natural resources, and film production. I’ve employed hundreds of people and increased economic (ph) activity between the United States and its friends around the world.

Throughout my work abroad, I’ve remained active assisting U.S. interests whenever called upon, regardless of which party controlled the Congress or the White House, including having worked for appointees of the Clinton administration, supported USAID financial inclusion projects, voluntarily chairing Chamber of Commerce affiliates, advising leaders of several American allied governments, and more recently volunteering to assist the Treasury Department in Kosovo.

Having worked in finance around the world, I returned to Albania in 2010 to pursue a business opportunity and I ran into the consequences of FATCA.

In smaller developing markets, there often isn’t enough volume to support stand-alone financial products so it’s important for such markets to leverage off larger ones.

Albania’s domestic capital market is still developing and in order to connect Albania to international capital markets, I’ve founded an Albanian introductory brokerage firm that would work with Saxo in Denmark offering basic brokerage services to Albanian residents.

When I sent the first 10 applications to Saxo Bank, they responded approving only nine.

I reached out to Saxo Bank to see who was rejected and they responded to say that I was rejected.

I own the company. I was told that though I was an Albanian resident at that time, I was rejected solely because I was an American citizen, because of fears because of the FATCA law.

I realized that due to FATCA I could not serve U.S. persons in my Albanian brokerage firm because of the carry-on impact of the Saxo decision.

The introductory brokerage vision that I had was alive but the idea of working with Americans and American persons was dead.

I’m the pro-bono Chairman of the American Chamber of Commerce in Albania and I work closely with our U.S. Embassy there in a private sector capacity trying to promote American business.

A brokerage firm owned by myself that markets itself as an American lead by the American Chamber chairman that does not accept American citizens is a logical anomaly to most in Albania and understandably so.

The introductory brokerage products became sidelined and Saxo Bank eventually grew so unhappy with me that they dropped my firm altogether. The obstacle to my brokerage business created by FATCA was a deal breaker. Proposals to address the unintended consequences of FATCA have been considered by both parties and candidates on both sides of the aisle in the most recent presidential election.

In recognizing the problems of FATCA, some have suggested implementing a safe harbor exception that would help Americans solely within the country of their residency.

Such a safe harbor exception would not have solved the negative impact that FATCA had on my situation.

I have never been a resident of Denmark. Thus, an exception would not have alleviated Saxo Bank’s relationship with me or other potential clients that I was bringing through my introductory brokerage firm from Albania.

In conclusion, my experience is that the American entrepreneurial mentality sets our culture apart.

Americans do not restrict their investments based on their personal residency. Rather, they pursue opportunity according to the market. Access to international financial services is critical for all such projects and FATCA’s impact has already harmed some of my businesses and if left unrepealed, will risk others.

It is ironic that after spending much of my career helping advance U.S. interests by expanding financial inclusion, through FATCA the United States has inadvertently restricted inclusion for its own citizens.

The fact that an increasing number of banks and financial institutions reject working with United States citizens outright harms our interests.

It is my belief that the best way to improve the current situation is not to make the situation more complex by creating carve- outs or safe harbor exceptions or other partial fixes. Therefore, I do support a full repeal of FATCA and I look forward to your comments and questions in the future.

MEADOWS: Thank you, Mr. Crawford. Mr. Kuettel, you are recognized for five minutes.

KUETTEL: Thank you, Mr. Chairman, for allowing me to speak on the negative consequences of FATCA.

I’m here — my name is Daniel Kuettel. I live in Switzerland and I am here to tell you why FATCA forced me to renounce U.S. citizenship.

As you see here, I brought my army — U.S. army jacket. I served in the army, I served in the army reserves, and then I got married in the Philippines I asked my wife to come join me in America but that was during the dot-com crisis. I lost my job, couldn’t find work. I sent my resume around the nation but had no luck so I took my chances in Europe. I did not leave the U.S. to evade taxes. I paid my taxes. I enjoyed paying taxes.

I’m an economic refugee. I don’t have a lot of money, I’m not wealthy.

In Switzerland, we saved up to be able to finance a small condo. And then in 2012, I needed to investigate refinancing that condo. In — in Switzerland, every few years, you have to refinance.

But when I went to a bank to ask them if they would allow me to refinance my mortgage, when they heard that I was a U.S. citizen, they denied it.

I went to another bank, I was denied again, and another. I called them. I was denied – rejected, rejected. It was horrible, terrible. I mean, if you’ve ever lived anything like this, this type of discrimination, it’s — it’s unacceptable.

I was worried that I would not be able to refinance my home. And so I called HUD, I called the VA, but they told me that they only support — they only help Americans residing in America. They don’t help expats.

I called the Department of Justice to inquire why this law prohibiting national origin discrimination is not being applied and they refered me to some statute that I could never find which was supposed to state that also the law only applies to U.S. residents.

So I had to renounce and it was a difficult decision to make. I went to a small village in Switzerland that I went to the first time that I came to Switzerland at the age of 10, where I was able to gather the strength to — to renounce.

And afterwards, I was able to refinance my mortgage. But today I’m here because I’m having a problem again because of FATCA and that is with my children.

My daughter is still a U.S. citizen. My son, on the other hand, he is not a U.S. citizen.

So my son, he can have a bank account with any bank in Switzerland. My daughter – about 310 out of 320 banks reject her.

And this is going to become a problem later on when she is 16. In Switzerland, it’s a common practice to get an apprenticeship where she would go to work, earn money, she’ll need a bank account.

But having a bank account means she would have to file FBAR. She would have to be subject to FATCA.

And — I mean, assuming that she even can get a bank account. And this is just a problem which rolls over. She is going to have to relive what I relived. Go through what I went through. She is going to have to decide if she wants to have U.S. citizenship or if she wants to have a normal life in Switzerland with a normal bank account.

Thank you, Mr. Chairman.

MEADOWS: Thank you for your testimony. Thank you for your service to our country and you are in a minority. You’re the only witness, I think, that I’ve ever heard who says they enjoy paying taxes.

(LAUGHTER)

So — but Ms. Bean, you’re recognized. And before I recognize you, I want to just say that this hearing, where it’s highlighting some of the difficulties with FATCA, I want to recognize, as I did in my opening statement, the — the great work that you did with UBS and the investigation.

And so nothing in this is meant to be disparaging of the — of the consequences of what I believe are unintended consequences of — of really your fine work. And so I recognize you for five minutes.

CONNOLLY: Mr. Chairman?

MEADOWS: Yes?

CONNOLLY: Could I just ask unanimous consent request before we hear from Ms. Bean — I meant to do this in my opening statement. I — I have a — a statement from the FACT (ph) Coalition opposing H.R.2054 I’d ask be entered in the record?

MEADOWS: Without objection.

CONNOLLY: And I would also comment on the chairman’s comment to Mr. Kuettel. Actually there are only two kinds of people who oppose taxes: men and women.

(LAUGHTER)

MEADOWS: We’ll now recognize the — the — Ms. Bean for five minutes.

BEAN: Well, thank you, Chairman Meadows, Ranking Member Connolly, and the members of the subcommittee for inviting me here today to present another view of FATCA.

I was asked to testify because for many years I worked for Senator Carl Levin on the Senate Permanent Subcommittee on Investigations and we held a number of hearings looking at how foreign banks were helping U.S. clients hide assets and evade U.S. taxes.

To give you a couple of examples, we had a gentleman named John Mathewson who testified in front of us. He set up a bank in the Cayman Islands called Guardian Bank & Trust. Had about 2,000 clients, $150 million dollars in assets, and he said, in his opinion, virtually all of his clients were engaged in tax evasion.

He said the standard practice to handle them was he would set up a shell company in the Cayman Islands, open up an account in the name of the shell company, the client would supply the money, and then he would give the client a credit card in the name of the shell company, and he would advise them to sign it illegibly on the back.

That way they could use the credit card in the United States to withdraw funds from their Cayman account without anybody linking their name to their shell company.

We looked at two banks in Switzerland: UBS – the largest bank in Switzerland and the second largest, Credit Suisse.

UBS was shown that they had 52,000 undeclared accounts – meaning accounts opened by U.S. clients that had never been disclosed to the IRS with about $18 billion dollars in assets.

They were sending Swiss bankers to U.S. soil. It wasn’t a case of us going there but sending their Swiss bankers here to yachting races, art shows, tennis tournaments, quietly handing around their business card and trying to convince people to put their money abroad.

They were very successful. They had tens of thousands of clients through those methods.

They eventually pleaded guilty. They paid a fine of $780 million dollars and they eventually disclosed about 4,500 names to the U.S. But 4,500 is nowhere close to the 52,000 undeclared clients.

Credit Suisse had at their peak about 22,000 undeclared accounts with about $10 billion dollars in assets.

They too pleaded guilty. They paid a fine of about $2.6 billion dollars. But guess what? They never disclosed any of those 22,000 accounts to the U.S. The U.S. had to find those people on their own and they haven’t found very many of them.

We did identify two clients. One told us about an occasion where his Credit Suisse banker met him at a luxury hotel here in the U.S. over breakfast. Slipped him a Sports Illustrated magazine and in between the pages was his bank statement so that he could know what was going on in his Swiss account.

Another gentleman told us about how he went to the bank’s headquarters in Zurich. He was ushered into an elevator with no buttons, it was remotely controlled. He was taken up to a floor and shown to a room with all white walls. The whole point being how the bank was so secret and actually told him they did not file the forms that required disclosure of his account to the IRS.

In short, our investigations — and by the way, we also looked at a bank in Liechtenstein and there we were able to get very detailed records on about 150 U.S. clients who had accounts there.

And we gave examples at our hearing. Just to give you one. A Florida contractor in the construction business set up four Liechtenstein foundations, opened up accounts in the name of those foundations, and stashed about $49 million dollars in those accounts that had not been disclosed to the U.S. until a whistleblower turned over the documents to the agency.

In short, our investigation showed that opening up offshore bank accounts for U.S. clients was big business. Billions of dollars, tens of thousands of clients.

Additional evidence of the scope of the problem is the IRS Offshore Volunteer Disclosure Program.

The latest statement from the IRS says that they have now had word from 100,000 Americans – 100,000 Americans who have admitted to having an undeclared offshore account – and in order to get it right with the government, they have now, as Mr. Connolly said earlier, paid a total of about $9.9 billion dollars to get — to satisfy the back taxes that they owed.

That’s the backdrop for FATCA. That’s why FATCA was enacted on a bipartisan basis.

The first thing to understand about FATCA is that it does not impose a tax on anyone here or abroad. It does not impose a tax, it is simply a transparency measure.

And it matches what every American citizen has been doing for decades. All of us get 1099s that are turned into the IRS about our domestic bank accounts. All of us do. It simply institutes the same program so that Americans living here who open up a U.S. bank account is treated the same way as any American living here or abroad opens up a foreign bank account.

Recent research has shown that FATCA and other offshore account disclosure programs are working.

Preliminary results from this 2017 study says that since 2009, the number of individuals reporting offshore accounts to the IRS has increased by 19 percent. And they have disclosed additional account assets of over $75 billion dollars.*

*NB It is difficult to understand how FATCA “is beginning to work” given reporting began in 2015 and there have been no reports of the IRS actually contacting anyone, much less, actually collected any money. Ms. Bean must be referring to OVDP/OVDI. see ** where Ms. Bean indicates she does not know how much FATCA brings in

It’s starting to work. We’re starting to change and end these offshore abuses.

Now how has FATCA helped? Well, first of all it leveled the playing field between Americans who open accounts here and Americans who open accounts abroad. It treats them the same way.

It also leveled the playing field between U.S. banks and foreign banks. U.S. banks no longer see their wealthiest best clients leaving the U.S. bank and going to a foreign bank because they can open up a secret account.

U.S. banks first. This restored a level playing field between U.S. banks and foreign banks.

At the same time, everybody is correct that FATCA did not have a smooth implementation. It had a very rough beginning. There were a lot of banks that were furious at this U.S. attack on their secrecy and on — on their business model to open up these accounts, particularly in Switzerland.

We went after UBS, Credit Suisse, and we had — we had a program to go after another hundred banks. Switzerland is very unhappy with the U.S. But you know what? Those banks have adapted. Those banks have said that they will comply with FATCA.

And in fact today, seven years later, there are over 274,000 foreign financial institutions have signed up to FATCA and agreed to comply with it.

In addition, that’s 100 countries have adopted a similar FATCA program under the leadership of the OECD to do the exact same thing that we’re doing.

So disclosing foreign account information is becoming the global norm. So while it was a very rough beginning, people were very angry, particularly in Switzerland – that’s not the case seven years later, today. Now many banks have agreed to comply with FATCA.

Ms Bean seems to be suggesting that the banks are no longer angry or unhappy about complying. One could surmise it is not due to agreement but rather, the desire to survive financially, given the penalties etc imposed upon UBS, Credit Suisse etc.

Now we have heard today about how some American citizens are saying that FATCA is forcing them or leading them to give up their citizenship.

But I have to also point out that that’s affecting a very small number of people. In 2015, about 4,300 people gave up their citizenship. That same year, we got new citizens of 730,000 people willing to pay U.S. taxes.

And when you compare that 4,300 figure to the nine million Americans living abroad, you’re talking about a rate of less than one- tenth of one percent.

To conclude, I wanted to say that repealing FATCA today would be a mistake. It would hurt honest taxpayers who have to disclose their account information on a bulk (ph) basis every year to the IRS. That’s what honest taxpayers do and whether you’re honest or not, that’s how the banks treat your bank accounts here in the U.S.

But it would hurt honest taxpayers here, living in the United States, to allow people who have the wherewithal to go abroad to not play by the same rules.

It would encourage Americans to move more of their money offshore to get some of that secrecy. It would disadvantage U.S. banks who would, again, have to compete against foreign bank secrecy.

It would also waste all of the investments made by those foreign banks to comply with FATCA. They have all done it. They’re complying.

We began disclosures in 2015. All of that money would be wasted. And finally, it would return us to an era where it was much easier to have an offshore account hide your assets and evade your taxes.

So that’s why I think repealing FATCA would be a tragic mistake. Thank you.

MEADOWS: Thank you, Ms. Bean. The Chair recognizes himself for a series of questions.

So Ms. Bean, let me — let me go because you made some very profound statements there that I’m not sure you — you want to carry them out.

Are you suggesting that the whole reason to do this is that U.S. banks want us to do it?

BEAN: Well, it’s my understanding that when FATCA passed the first time around . . .

MEADOWS: I’m just asking for your sworn testimony. Are you suggesting that U.S. banks are — are really supportive of — of this law?

BEAN: Yes. I think banks do not want to compete against foreign banks . . .

(CROSSTALK)

MEADOWS: So — so if I get the banking institutions to say that they don’t have a problem with us repealing that, you would change your opinion?

BEAN: Well, many of those banking institutions have foreign banks as members.

MEADOWS: No, I know — I know that. That’s why I’m saying — so at this point, if they change their position, would you change yours?

BEAN: I think U.S. banks do not want to compete against foreign banks that can take their wealth . . .

MEADOWS: That’s not the question I asked. That’s not what — I said if they changed it, would you change your opinion?

BEAN: If they — you mean, if U.S. banks . . .

(CROSSTALK)

MEADOWS: Yes.

BEAN: . . . not their — not their trade associations, which have foreign banks in them. But if you could get U.S. banks alone to say, “We don’t want FATCA anymore.” They’d still have to comply, by the way, with all of the other . . .

MEADOWS: Well, they’re about to have to comply. See, we haven’t forced them to comply on this side, you know? And . . .

BEAN: They do.

MEADOWS: And — in — in a different way. We — we do not require them to comply with foreign entities at this particular point. So if France . . .

BEAN: Yes, we do.

MEADOWS: We’re not forcing them to do that unless there’s a reciprocal agreement. I’ve — I’ve looked at it, Ms. Bean. And so we can argue the point. So let — so let me go to one other side of this.

So you’re saying it’s the investment that we made. Even if it’s bad policy, we shouldn’t go the other direction because we made a substantial investment and everybody is getting used to it. Is that your testimony?

BEAN: It is. Foreign banks — by the way, these weren’t U.S. banks but these are foreign . . .

MEADOWS: OK. I’ve got five minutes. So yes or no answers are the best for me. But you can explain, that’s fine.

So — so GAO did a study in 2013, and they suggested that really it’s the voluntary disclosure that has most of this. It’s not the IRS coming in, it’s the voluntary disclosure that comes up with this.

In fact, they said in that study 80 percent — now these are the high income people, so the lower income people like Mr. Kuettel would not be actually in this study — but they said 80 percent of the high income individuals, the income that we recovered actually came from fees and — penalties and fees, not actually income tax.

Does that strike you as surprising? So of the $800 million that we actually got last year, 80 percent of that were fees and penalties, it wasn’t really taxes.

BEAN: When people don’t pay their taxes and they’re caught by the IRS, they do impose penalties.

MEADOWS: Listen, this isn’t my first rodeo. I get that. What I’m saying, does that surprise you that 80 percent of the money we have coming in is actually fees and penalties is not tax avoidance, it’s a penalty or a fee that goes with that.

So the number we’re — we’re collecting — the vast majority of it is just a — a fee and a penalty for voluntary disclosure. Does that surprise you?

BEAN: It did not surprise me but it also includes interest, I believe. Not just penalties but also interest.

MEADOWS: Well, when we — when we look at this, when we look at . . .

BEAN: I think it’s the biggest part of it.

MEADOWS: It was 80 percent. I mean, I’ve — I’ve got the study right here. I’ll be glad to share it with you. It’s 80 percent where basically “come from penalties and fees”, quote.

And so when — when we look at that, you know, then what you’re doing is you’re taking this number down and so we’re investing $200 million to try to go over and we’re assuming that they’re not doing legal activity.

I think most people actually agree with Mr. Kuettel. They may not be happy about they’re (ph) paying taxes, but they agree that it is their civic duty to do so.

BEAN: I would agree with that.

MEADOWS: And so when — when we see that, we’re making an assumption that activity is illegal, just like Senator Rand Paul was talking about.

So what you’re saying is that it’s OK for us to go in and get details on their private accounts, and making sure that we understand that in case there is illegal activity. Is that your premise today?

BEAN: I don’t like getting a 1099 on my bank account. I’m an honest taxpayer.

MEADOWS: That’s not what I asked. Is it your sworn testimony . . .

(CROSSTALK)

MEADOWS: . . . that’s it’s OK for us to go look at the private individual account with the suspicion that there may be illegal activity and that’s OK?

BEAN: I treat all Americans the same. 1099s or 1042s, I treat them all the same.

NB: Form 1042-S, Foreign Person’s U.S. Source Income Subject to Withholding – It is not clear how a 1042s would apply to an American given it is designed for a foreign person

MEADOWS: Ms. Bean, you’re — this isn’t your first rodeo either. You’re not answering my question.

Is it your sworn testimony that it’s OK to go into the private individual accounts under the suspicion that there may be illegal activity and look at that as FATCA does?

BEAN: As FATCA and American law does, yes. I think that . . .

MEADOWS: Alright. So let’s look at it a little bit differently. So I am assuming you’re a law abiding citizen. Would it be OK, under that same premise then, for me to go look at all of your e-mails and all your private correspondence – which some would argue is not as intimate as your financial details. Would it be OK for me to go in there looking for suspicious activity? Would — would you think that that would be appropriate?

BEAN: No.

MEADOWS: OK. I agree with you. And so . . .

(CROSSTALK)

MEADOWS: But what we’ve done . . .

BEAN: . . . the other one is about private communications. There’s a difference there. All of us . . .

MEADOWS: Listen, my son is — is graduating from law school. His specialty is Fourth Amendment. So — I mean, we’ve had these arguments at the dinner table.

And so when we look at that, I understand the difference. But as we start to see this, Ms. Bean, here’s what I’m saying.

We’re investing money which forces a compliance nature that is making people where they can’t bank or where actually being a U.S. citizen is a detriment internationally for any financial whether you’re in a single household or whether you’re a financial corporation.

Do you think that that was the intended purpose of this bill?

BEAN: ,The Supreme Court . . .

MEADOWS: Was that the intended purpose of the bill? Yes or no.

BEAN: Was the intended purpose to denigrate Americans? Absolutely not.

MEADOWS: Alright. Thank you. I will recognize the ranking member.

CONNOLLY: Thank you. I — I do want to, you know, one — one — one wants to caution about only looking at extremes.

So we can ask about, you know, intrusion into Americans financial information as if all of it’s extreme.

So I’ll pose the opposite question to you, Ms. Bean. Would it be OK if we completely repeal FATCA and while we’re at it, say that anybody is free, as an American citizen, to have a secret bank account in Switzerland and should never have to report on it and should never have to pay taxes on it unless they feel like it?

What’s wrong with that?

BEAN: Well, what’s wrong with that is we have tens of thousands of people who are cheating on their taxes . . .

CONNOLLY: Correct.

BEAN: . . . honest taxpayers . . .

CONNOLLY: Right. FATCA — FATCA didn’t just come out of, you know, a busy bodies who love putting their nose in private business and there was no problem to solve and it was just another perverse liberal thing to do in Congress. Right?

BEAN: Correct.

CONNOLLY: I mean, there was actually a problem identified which was rather substantial tax evasion in the billions of dollars. Hard working Americans pay their fair taxes and none of us like to see anyone cheating. Right?

BEAN: Correct.

CONNOLLY: OK. Now, here’s my question. Having said all of that, the testimony we’ve heard from your three colleagues at the table would suggest that sometimes, though, we’ve gone too far.

That maybe the intention was good but it’s disrupted people’s lives. We’ve had testimony from two — two Americans that they had to renounce their citizenship because a bank in Switzerland told them they had to, if I got the testimony right.

And — and surely you would agree that’s not an intended consequence of FATCA.

BEAN: No, it is not.

CONNOLLY: So would you consider — you said something about the roll-out, you admitted was rocky. So is the implementation still rocky? Are there still unintended consequences that maybe Congress needs to address? Or — or someone implementing needs to address?

BEAN: FATCA still is not — is far from a perfect law. There are things that could be improved.

CONNOLLY: Well, no, no — nothing’s a perfect law. I hate that expression. I mean, that implies something could be perfect – nothing is perfect. I wish there were, but there isn’t. So we’ll put that aside.

It — it has problems in its implementation still?

BEAN: Yes.

CONNOLLY: OK. And — and listening to the testimony of the three gentlemen to your left — left? Right.

BEAN: My right.

CONNOLLY: Right, sorry. Do they have a point? I mean, can — do you recognize what you’re hearing here as a fair critique? Maybe not a comprehensive critique – you and I would stipulate that.

The purpose of FATCA is a good one. And it has done some good, clearly, in promoting an international standard and then collecting taxes that otherwise would have been foregone.

But in doing that, either in the zeal (ph) or in the reach, it’s hurt people unintentionally. That’s really what we’re hearing here. And I’m concerned about that as a member of Congress. I – I don’t want to see fellow citizens hurt. I — I want to see tax cheats brought in. I want to see everybody pay their fair taxes. And maybe not everyone up here shares that philosophy. I do.

But I don’t want to be hurting people in the process who are innocent victims of, you know, a well-intentioned piece of legislation that’s overly broad or is badly implemented.

And that’s — that’s what I’m asking you to comment on.

BEAN: I really think their concern is misplaced.

CONNOLLY: Who’s?

BEAN: The — the people to my right.

CONNOLLY: OK.

BEAN: I think what they’re concerned about is they feel, in some cases, it’s unfair to tax them because they don’t live in the United States . . .

CONNOLLY: Can I just say, I’ve seen this, Mr. Chairman, if I can interrupt one second.

I would ask everybody to forebear civility and acceptance. This is not a hearing where you shaking your head because you don’t like what somebody says.

We’re going to hear everybody and we’re going to try to be fair. But you’re — you’re not free to be, you know, commenting through body language on whether you approve or disapprove of somebody’s right to express themselves.

You know, if you’re at the table, you get to express yourself. If you’re not, please be forbearing and polite.

Ms. Bean?

BEAN: I was just going to point out that even if FATCA were completely repealed, you’d still have all of the same problems about people saying we’re getting taxed when we shouldn’t be or getting taxed too much or the process for renouncing citizenship is too complicated or too expensive.

All of those things would still be true because FATCA itself does not impose any tax and it does not, of course, require anybody to renounce their citizenship.

I think Switzerland was a particularly tough place to be that the banks there were particularly upset because FATCA was aimed, in part, at Swiss bank secrecy.

I think that a lot of those Swiss banks now have changed their practice. UBS and Credit Suisse now agree to open up accounts for American citizens and report them to the IRS . . .

CONNOLLY: Ms. Bean — OK. Thank you. Unfortunately most have been called. Mr. Chairman, just one — I would like, if it’s alright to have Mr. Bopp just comment on that, if he — if he would like to.

I’d like to hear the other point of view.

MEADOWS: Yeah. Very quickly . . .

CONNOLLY: Very quickly.

MEADOWS: We only have a couple of minutes left and we’re going to need to — to recess and reconvene. So very quickly.

BOPP: Thank you. I — I would just make a couple of points. First, this is not an unusual or rare problem that is affecting Americans overseas.

The Democrats abroad survey of Americans overseas found that 65 percent of married Americans overseas have lost bank accounts because of FATCA.

Secondly, this does not level the playing field. U.S. banks have to file, you know, 1099s regarding interest income. Under FATCA, foreign banks have to not only identify income but also gains and losses, et cetera. Also gross receipts, gross withdrawals, account information, value of it – no — no taxpayer in the United States reports that information to the — to the IRS.

And finally, regarding the penalty point that you made. The $9.7 billion that she’s talking about of taxes, interest and penalties – most of those penalties we know anecdotally were not because these people needed to pay any taxes and failed to do it, but because they failed to file this form. This one lousy form that generates a 50 percent penalty of the highest value in the account.

If you do it the second year, failed to file your form, you’re now at 100 percent. That’s the penalty. And — and you know, that is something that this committee should force the IRS to explain to the American people about how FATCA is working.

MEADOWS: Alright. We’re going to reconvene probably for planning purposes no sooner than 3:35. So you can go get coffee, do whatever you want and so this committee stands in recess.

MEADOWS: Alright. If you guys can make your way back to your seats. I think the ranking member is probably on his way and we’re going to go ahead and get reconvened at this point.

Seeing a nod from actually the people that do the work – the staff – we’ll — we’ll go ahead and the Subcommittee on Government Operations hereby reconvenes.

Chair recognizes the gentleman from Georgia, Mr. Hice, for five minutes.

HICE: Thank you, Mr. Chairman. Ms. Bean, I want to pick up with you, if we can continue here.

Any idea how much revenue is lost to offshore tax evasion each year?

BEAN: Estimates have been between $100 and $150 billion dollars per year is lost to offshore tax evasion.

HICE: Alright. Between . . .

(CROSSTALK)

HICE: . . . $100 and $150 billion. And you’re — you’re satisfied with that estimate?

BEAN: Yes.

HICE: OK. And how much is — revenue is brought in because of FATCA?

BEAN: **I don’t know. It’s such a new law. They just started the reporting in 2015. I don’t know if they have any statistics yet.

HICE: OK. Well, the Joint Committee on Taxation estimated $870 million. Are you familiar with that estimate?

BEAN: That is being brought in per year? I wasn’t familiar but OK.

HICE: OK. Based on that, assuming that the Joint Committee on Taxation is accurate, at least in the ballpark, it is very poor math.

We’ve got a loss of $100 to $150 billion, we’re only bringing in $870 million. And that’s just part of the problem.

I mean, we’re spending — figures have been going out today – $200 billion spent on this. The estimates on that range from a little less than that.

The $200 billion is kind of a middle-of-the-road estimate. I’ve seen as high as a trillion, as low as eight billion. But the middle- of-the-road guess – $200 billion.

And besides all that — just — I mean, I listen to these witnesses and read your testimonies and the harm that is being caused individuals around the world and the harm that has come about to some of our allies.

You even mentioned yourself how — you know, you said that in your opinion things are changing. How many of our allies have been hurt because of this?

Obviously, it’s not a very efficient use of IRS resources and quite frankly, I have questions as to just whether or not this thing’s even constitutional or not.

There are tremendous constitutional questions that come up with this. The fact that Americans living overseas are forced to provide financial information that would normally require a warrant – it is just amazing to me. There’s obviously an issue, at least, with the Fourth Amendment there.

We have heightened reporting requirements that treat Americans living overseas more harshly than those living here. And that, obviously, is a Fifth Amendment concern. You just wonder even how constitutional this thing is at its very foundation.

And then the fact that this was instituted without congressional authority. President Obama — the — the agreements were made — I mean, you’ve got to — separation of powers is — I guess my point is it’s over and over and over.

There’s just questions on this thing as to even how effectively it’s working. If we’re bringing in $870 million, but the cost is some $200 billion, it doesn’t take a whole lot of math to figure out this is not a very efficient thing.

And you add to it the harm that’s being caused and the constitutional issues that are being raised. It — it appears to me that although this may have been implemented with good intentions, as has been mentioned here today, there’s enough information that’s come forth here about FATCA that frankly, I find this thing not only to be disastrous as a law but dangerous potentially, constitutionally.

And it just seems to me in every way this ought to be repealed, if not majorly modified.

Just a quick yes, no, would — would you all agree or disagree that this needs to be either repealed or modified?

Mr. Bopp?

BOPP: I definitely agree it needs to be repealed. We — we have thought about, you know, fixes — alleged fixes being proposed by various people and the problem is it leaves all the essential elements of the FATCA regime in place.

The burden’s on most individuals. The burden’s on financial institutions don’t change, but — in any of the proposals that we are aware of. And — and — and the constitutional issues remain.

And we — we just should not be treating people that are U.S. citizens, because they’re residing abroad, stripping them of their rights as if they were second class citizens.

HICE: OK. My time has expired. Mr. Crawford and Mr. Kuettel, yes or no – repeal it, modified?

CRAWFORD(?): Yes, I’m support of repeal.

KUETTEL(?): Yes, I support repeal.

BEAN: No, I don’t. And just so you know, the courts that have looked at these types of issues have . . .

HICE: Nor — nor do you believe that it should be modified? You like it just as it is?

BEAN: I think there’s some modifications that would be appropriate.

HICE: OK. Thank you, Mr. Chairman.

MEADOWS: I thank the gentleman. The Chair recognizes the gentlewoman from New York, Ms. Maloney, for five minutes.

MALONEY: Thank you, Mr. Chairman. I want to thank you very, very much for your focus on this issue. It’s an extremely important one as we move into more of a global world with many Americans living abroad.

And of course, thank Ranking Member Connolly. And thank you to all the witnesses who’ve come from all over the corners of the globe to testify about the future of this important law.

I — I represent a district that has many Americans that live abroad that have expressed the concerns of Mrs. Nelson, although I have never had a first family who came over on the first ships testify to me.

But many people have told me the excruciating experience of renouncing their American citizenship and their inability to open up bank accounts or being forced off the bank account of their spouse.

But likewise, I’m very sympathetic to the points that Ms. Bean has raised about the need to crack down on terrorism financing, drug financing, human trafficking financing, and just plain crooks.

But I — I — I do think that we could reach some type of agreement in — in going forward.

I personally do not think FATCA should be abolished. But certainly the reporting procedures should not subject ordinary Americans, in my opinion, to the same scrutiny as criminal tax evaders, money launderers.

And coming from New York, which is constantly a — a terrorist target, the extreme concern that law enforcement has in — in New York and I’d say around the country of terrorism financing.

I’ve been particularly interested in this issue for some time now. As co-chair and founder of the Americans Abroad Caucus, I have heard reports from constituents overseas detailing how FATCA’s expensive and risky reporting requirements have had a negative impact on access to banking services for Americans living abroad.

FATCA was passed to fight overseas tax havens and make sure that American money could not be hidden from tax obligations, which is something I strongly support and I’m sure most members do as well.

It does this by requiring foreign financial institutions to disclose certain information to the IRS about American-held accounts or the institution will be subject to a 30 percent withholding tax on all of its income from U.S. sources.

Unfortunately, in order to minimize their exposure to FATCA reporting requirements and avoid any withholding fees and potential penalties, some foreign financial institutions have decided to simply close accounts for U.S. citizens or refuse to open new ones for them or have asked them to get off the account of their spouse.

As a result, many law abiding American citizens living overseas have lost access to everyday financial tools such as mortgages, bank accounts, insurance policies, and pension funds, all of which are critical services in a modern economy regardless of your place of residence.

Now I believe it is essential that the Treasury Department has the tools it needs to fight overseas tax havens and make sure that any American money around the world remains compliant with the U.S. tax code.

But the current FATCA reporting procedures subject ordinary Americans to the same scrutiny as criminal tax evaders.

It’s gotten so bad that some Americans have resorted to renouncing their American citizenship in response and that’s unacceptable.

Of whether it’s one or two or 2,000, we should not live in a world where people feel they have to renounce their — their citizenship in order to comply with — with basically transparency laws.

Recognizing the consequences that the reporting requirements have had on Americans living abroad, the IRS Taxpayer Advocate Service 2015 annual midyear report to Congress recommended that the IRS exclude from FATCA reporting financial accounts maintained by a financial institution in the country in which the U.S. citizen is a bona fide resident.

And I — I have here a — a letter that — about 20 members of Congress joined me in — in signing and sent to — to — to Treasury and IRS supporting this idea – this — this narrow, narrow exemption for American taxpayers.

The report details how this proposal would mitigate concerns about unintended consequences raised by overseas Americans, reduce the reporting burden on FFIs (ph), and allow the IRS to focus its enforcement efforts on identifying and addressing willful attempts at tax evasion or money laundering or money hiding through foreign accounts.

The IRS would retain access to foreign financial account information as citizens would still be required to submit the report of foreign bank and financial accounts.

Additionally, the Financial Crimes Enforcement Network, or FinCEN, the (inaudible) system ensures IRS employees direct access to FBAR data.

The Treasury Department has not yet implemented this recommendation and I wrote this letter on September 15th of 2015, which I’d like to submit to the record, Mr. Chairman . . .

MEADOWS: Without objection.

MALONEY: . . . to the IRS and Treasury Departments urging adoption of this reform, but still nothing has happened.

So today I — as we hold this hearing, they haven’t taken any — been taken to institute a policy to alleviate the burden on overseas Americans as a result of FATCA.

That is why last night I introduced the Overseas Americans Financial Access Act, which would implement the recommendation and exempt Americans from FATCA reporting if their accounts are held in the same country where they are bona fide residents.

It is a narrowly tailored change that could drastically improve the financial conditions for Americans living abroad. I — I hope my colleagues will join me in this good faith effort to make FATCA more effective in its intention and yet less burdensome on law abiding Americans living and working abroad.

And I — I request permission to place in this record, I think, an excellent document that was prepared by the Foreign Account Reporting on the issue in ways that could be improved which included the recommendation that I legislated last night. And — and I have the bill here and I’d also like to put that in the record.

I feel that this narrowly tailored approach would relieve the burden on American residents, members of — Americans yet keep the benefit of cracking down on terrorism financing, drug financing, human trafficking financing, and just plain criminal behavior.

My time is long over expired. I thank the gracious chairman for — for allowing me this time to speak and I — I — I look forward to a second round where I can participate in asking questions. Thank you.

MEADOWS: I thank the gentlewoman. Her two unanimous consents without objection so ordered.

And the chair recognizes the gentlewoman from the District of Columbia, my good friend, Eleanor Holmes Norton.

NORTON: And let me thank you, Mr. Chairman, for this really interesting and important and revealing hearing.

I was pleased to hear my good friend, Ms. Maloney, take a stab at how we could, in fact, go at the probable unintended consequences of going after bad guys and getting good guys while at the same time not opening the gates altogether to the bank.

Indeed I was a little surprised to hear some of your responses to the question that was asked by my colleague on the other side whether repeal or modification was appropriate.

Let me remind you what it takes in this Congress and what it took in the Congress that passed this to get legislation through, to recoup taxes, or to tax anyone.

The evidence was overwhelming of human trafficking, of — of — of drugs smuggling, of — of tax cheats. So overwhelming that in a Congress which is not known as passing a lot of bills.

And in a Congress which has caught the IRS more than it has caught any other part of the government, this legislation, FATCA was passed.

So I have to ask you, when you say you would like repeal, do you really mean you want no law on the books that went after the bad guys so that we could make sure that the good guys weren’t, in fact, caught?

I’m going to ask you to think about that. Because this is the kind of modification that is going to take bipartisan support and you just heard a member offer at least one version of modification.

But if you come to the Congress of the United States who passed a law like this after being overwhelmed by evidence and say, “The only thing we want is a wide open gate.” And ask you to throw all of that away, then you’re not really helping us.

So I’m asking you whether you would consider the notion of — of modifications that would, in fact, help us deal with what moved all of us during your testimony?

Mr. Bopp, let me hear all down the line on that.

BOPP: Thank you. And — and of course, we have considered the possibility of changes such as proposed and other proposals. And the problem is is we do not find that they will be effective in — in relieving the burden . . .

NORTON: Alright. Mr. Bopp and — and my time is . . .

BOPP: And I can tell you why.

NORTON: You know, you may not have seen any yet, but you see what you give us: an all or nothing kind of resolution. And that, of course, it tells us – who don’t do much in the first place – nothing.

I just want to ask — maybe the chairman would grant me some time as well, because I — I — I want to — I want to see whether any of you would be open to modification going back to where we were.

The fact that you haven’t seen one there . . .

MEADOWS: The chair will give that.

NORTON: . . . doesn’t mean that there isn’t one in existence. And there haven’t been hearings like this doesn’t mean that working with people couldn’t help us.

But I do have to ask Ms. Bean about this — this what looks like the — the — the rest of the country moving toward us with this common reporting standard.

Does that, in fact, share much of what we’ve been talking about in FATCA, Ms. Bean? This common reporting standard? This OECD effort to collect and share information about foreign held accounts?

BEAN: It’s modeled on FATCA. It’s very similar to it. It’s not identical. Buy yes, over a hundred countries have now signed up to that system.

NORTON: So if anything, it looks like the rest of the world is moving toward what FATCA — because of hearings which opened up this matter up, in fact, found.

So could they work together to stop the kind of tax evasion we’ve been talking about? The common core — common reporting standard in FATCA, Ms. Bean?

BEAN: That’s the hope that with the — most banks around the world starting to report account information to governments that this whole problem of secret bank accounts that, as you said, are used not only by tax evaders but terrorists and criminals, sex traffickers, drug lords. That that whole problem would be much more manageable because of the transparency.

NORTON: Would — would the information of U.S. account holders still be collected if Congress repealed FATCA but the common reporting standard continued and existed?

BEAN: I don’t know the answer to that. I believe it would be but I’d have to look at it more detail.

NORTON: I wish you would get that answer back to our chairman. I have to tell all of you sitting at the table, I was a tenure professor of law before I came to Congress.

And essentially I taught one of the — one of the — in addition to the hard letter (ph) courses I taught, one was negotiation. So I came kind of with the frame of mind as every lawyers can be most helpful if they understand that we live in a world where each side can’t get what he wants but can, in fact, be satisfied.

And it’s that kind of problem solving approach I’ve tried to bring to the Congress as well. So I must tell you, when somebody tells me to take back a piece of legislation that could have passed only if we were deluged (ph) with information that made it irresistible, if you tell me that that is the only answer, I have to tell my friends at the table that you’re asking for the status quo.

And I would ask you to work with Ms. Maloney, with me, with the chairman to find a way out of this dilemma so that in trying to help the good guys, and you represent them, we do not go back to opening the gate to all the bad guys we were after in the first place. I thank the chairman for his indulgence.

MEADOWS: I thank the gentlewoman. I would like to make note that the chair did give the additional two minutes to the gentlewoman from D.C.

NORTON: That’s why I love him so much.

(LAUGHTER)

MEADOWS: We’re going to go ahead — since the gentlewoman from New York wanted a second round — we’re going to go ahead and do a — a brief second round. So I’m going to recognize myself for a series of questions.

But let me clear up, I guess, some testimony. I’ve got sworn testimony that Ms. Bean says that we’re not asking financial institutions abroad to do anything that the United States banks do.

And Mr. Bopp, your sworn testimony seems to be at odds with Ms. Bean’s. So help me clear up. Mr. Bopp, I think you said that more than just a 1099, they are required to have all kinds of other — other information. I want to give you a chance to correct the record if you are not correct in your sworn testimony.

BOPP: The 1099 that American banks are required to send in to the IRS and to the taxpayer, of course, reports the interest income on the account.

It does not report gross receipts. It does not record gross withdrawals. It does not report the value of the account. These are things that FATCA requires foreign banks to provide to the IRS.

MEADOWS: Alright. So you’re saying that foreign banks have to do that and U.S. banks don’t. OK.

I think we will get a different opinion here, but Ms. Bean, go ahead. Are you saying that his testimony is not correct?

BEAN: Mr. Bopp is correct. There is additional information under FATCA from foreign banks than there is in the U.S. banks.

MEADOWS: Why — Why is that?

BEAN: I think that’s just the way the law was written but one reason . . .

MEADOWS: What — do you not see that as problematic?

BEAN: Well, I think one reason is that U.S. banks are subject to subpoena from U.S. law enforcement in the way that foreign banks aren’t. So U.S. law enforcement . . .

MEADOWS: Whoa So you’re saying . . .

(CROSSTALK) MEADOWS: FATCA’s intent — from someone who should know — FATCA’s intent was to allow a way to access information without a subpoena? Is that what you just said?

BEAN: Yes. Just like 1099s. There’s no subpoena for 1099 either.

MEADOWS: Right. But you’re saying that because we did FATCA, we’re going to have our constitutional protections violated because of a law? Is that your sworn testimony here today?

BEAN: The courts have said it is not unconstitutional. The Supreme Court has said you can get . . .

MEADOWS: Well, but you’re saying that getting around a subpoena is you’re saying they’re subject to a subpoena and somebody else is not subject to a subpoena.

BEAN: I think you were asking me why would FATCA require more information . . .

MEADOWS: No. I was asking you if it was different because your sworn testimony from my first round of questions is you said that we weren’t asking them to do anything that a U.S. bank was asked to do.

That was your sworn testimony and I can get them to read back the transcript. But I assume that you’re saying now you want to change that to say that, “Yes, we are asking foreign banks to do something that a U.S. bank doesn’t have to do.” Is that correct?

BEAN: What I meant in my testimony is that we’re requiring foreign banks to file a form on all accounts opened by U.S. clients. And we have U.S. banks that have to file a form on all accounts opened by U.S. banks.

But Mr. Bopp is correct. There are a couple of additional items of information primarily . . .

MEADOWS: So you would be OK with waiving those couple of additional items and amending the law because obviously that’s — we’re not treating people the same in the United States as we do abroad?

BEAN: I would not because from a foreign bank, U.S. law enforcement . . .

MEADOWS: I’m going to go back to what the gentlewoman from the District of Columbia says. You can’t have it the other way either. I mean, they may not be able to give full repeal, but you can’t keep the full law and — and sit here and negotiate in good faith and assume that everything with FATCA is correct.

BEAN: In fact, the rest of the world has noticed the same difference . . .

MEADOWS: They’re being forced to notice the world because of what we’re doing.

(CROSSTALK)

BEAN: . . . by that additional information.

MEADOWS: Would you not agree with that? They’re being forced to do it because of what we’re doing from — from our law and forcing them to do it?

BEAN: We are forcing them through the 30 percent excise tax.

MEADOWS: And do you not see that some of these side effects – that we’ve had expert testimony from Mr. Kuettel and Mr. Crawford – that those side effects of our forcing financial institutions to do it are having repercussions that were not intended in the original law?

BEAN: My entire adult life, I’ve had to file a 1099 on every bank account I’ve ever opened.

MEADOWS: So you were OK — so you’d be OK . . .

BEAN: I’m OK with that.

MEADOWS: Alright. So let’s — let’s go there. And maybe that’s a reasonable compromise.

We repeal FATCA in that we require foreign institutions to have to file a 1099 to the IRS on interest income. Would you be OK with that?

BEAN: I’d prefer that the 1099 to be expanded to what FATCA requires.

MEADOWS: Therein is a deeper problem, but we won’t go there.

(CROSSTALK)

MEADOWS: Ms. Bean, we’re not going to ever agree on that.

BEAN: OK.

MEADOWS: So let’s — let’s go ahead with this. Are you OK, yes or no, with us just repealing back and saying that a foreign account has to do a 1099 on interest income as a U.S. bank would do, as Mr. Bopp (ph)? And that’s — that’s all they have to do. Are you OK with that?

BEAN: No, I’m not.

MEADOWS: OK. You know, I — I find it challenging that — because apparently — so what are the problems that you see with FATCA, Ms. Bean?

BEAN: Well, one of the — there are a number of problems. One of the problems is . . .

MEADOWS: How many problems would you say there are with FATCA?

BEAN: Well, I haven’t counted them up but let me give you two of them.

MEADOWS: OK.

BEAN: One is that when the IRS started to penalize people for violating the law, their penalties — they had a range of penalties they could do. They were very unreasonable and the penalties they apply . . .

MEADOWS: So what would a reasonable penalty be?

BEAN: Well, one of the things that the IRS did at the insistence of the Taxpayer Advocate is they came up with a system that if you had an inadvertent violation of the law . . .

MEADOWS: Inadvertent by who?

(CROSSTALK)

MEADOWS: Now I will sometimes tell my wife that I forgot to take the trash out inadvertently.

Is that — I mean, inadvertent by who’s standard?

BEAN: I think they require a certificate from the taxpayer and if the taxpayer will certify that they — it was inadvertent, they didn’t realize they were violating the law, they would then be . . .

MEADOWS: I would think that would happen 100 percent of the time. Wouldn’t you?

BEAN: About that. And they then are qualified for much lower penalties. So that’s a system that’s been . . .

MEADOWS: So what should the penalty be, Ms. Bean?

BEAN: That’s a very complicated question because there are a lot . . .

(CROSSTALK)

MEADOWS: But you’re an expert witness. You’re here — you are here at the request of the minority as an expert witness. I would assume you have an opinion on that since you were involved in part of this.

What would be an appropriate penalty?

BEAN: Well, I’ll give you an example. There was a gentleman that they found at a bank in Israel.

He had hidden $21 million dollars in those accounts – never been reported to the IRS. The IRS then ended up hitting him with a fine of $8.3 million dollars for the many years that he hid those accounts. And he went through a lot of machination (ph) to hide them from the IRS in Egypt.

MEADOWS: But that’s criminal. That’s criminal. I mean — so here’s what we’re talking about is — is — is when we are looking at that, if indeed he went through all kinds of issues — I mean, we’ve got laws that say we have to disclose those accounts.

I know every year my accountant would — would ask that. But what — what you’re saying is — is that — so a big penalty if he’s got a lot of money is OK but a big penalty if they don’t have a lot of money is not OK. Is that what you’re saying?

I’m trying to figure out what — I’m trying to answer the question for you since you don’t seem like you want to answer the question. What’s an appropriate penalty?

BEAN: Well, the penalties currently are gauged to how much money is in the account. So that’s one thing they do take into account. And another thing they take into account is whether it was inadvertent or not.

MEADOWS: So are you going to answer the question or not? What’s the appropriate penalty?

BEAN: Sometimes the appropriate penalty is zero. If you didn’t know you were violating the law, the penalty could be zero.

MEADOWS: Alright. So if you — so you’re — you’re OK if we say you didn’t know that you were violating a law, that the penalty would be zero?

BEAN: In some cases, yes.

MEADOWS: OK. We’re not getting much of anywhere. What would be the other example? So penalties being outrageous is one. What’s the other problem? You said there was two.

BEAN: The other one I would mention is that we’ve had the FBAR for many years where people have to identify their foreign accounts.

MEADOWS: Right.

BEAN: But now under FATCA, we created another form that seems to be very duplicative of the first form . . .

MEADOWS: Right.

BEAN: . . . and I’m not sure that we need that second form. And as people have said, there are a lot of trips and traps to complying with FATCA and that seems to me to be one of them, to have that extra form.

MEADOWS: Alright. So — so let me understand. Your best recommendation on improving FATCA is we get rid of one form and we may adjust the — the penalty? Those — those are your two best attempts at trying to fix FATCA?

BEAN: Yes. Because as I said, live my life under that regime, I . . .

(CROSSTALK)

MEADOWS: So if you’ve lived your life under that regime, knowing that there is a return, knowing that — that the IRS — the gentlewoman from the District of Columbia talked about — knowing — knowing that there are financial resources, knowing that the Commissioner Koskinen says that he can get a 20 percent return sometimes.

Or even lets take conservative. Under sworn testimony he said an 8:1 return. Wouldn’t we be better off taking the $71 million that we spent last year and using it for some other type of enforcement that provided a better return?

Because aren’t we only getting one percent of what — your sworn testimony said there’s a hundred billion out there. We’re only — we’re only collecting one percent of those — those taxes.

And actually, it’s not even that. It’s taxes and fees and penalties and interest. So we’re spending all this money to address one percent of the problem.

BEAN: Well, $150 billion includes all of the corporate tax avoidance. So that’s — that’s a whole different issue.

But when you’re looking at individuals, the numbers that are usually used are $35 to $70 billion dollars a year just for individuals.

I’ve been asked earlier about offshore tax avoidance and evasion altogether. But for individuals it’s $35 to $70 billion dollars.

MEADOWS: Alright. I’m way beyond my time. So here’s what I would ask you to do – each one of you to do – is come up with three recommendations. Your two that you gave me under sworn testimony don’t count.

I need three recommendations on what you would do with FATCA. I need you to look at — in the spirit of trying to find, if we do not fully repeal — what are the three most erroneous (ph) situations that affect gentlemen like Mr. Crawford and gentlemen like Mr. Kuettel? What are those — those areas?

Are all of you willing to either give me your recommendations back to the committee to do that?

BEAN: (OFF-MIKE)

KUETTEL: (OFF-MIKE)

CRAWFORD: (OFF-MIKE)

BOPP: (OFF-MIKE)

MEADOWS: OK? Thank you. I recognize the gentlewoman from New York, Ms. Maloney.

MALONEY: I — I thank the gentleman for his concern and trying to get an answer.

But — but to me it’s not a monetary thing. It — it really is human life because terrorism financing has become a way of life in this world.

MEADOWS: Well, would the gentlewoman yield for one point of . . .

MALONEY: No, because I have — I have a phone call with Justice Ginsburg in about five minutes so I can’t yield right now. Excuse me, Mr. — I just have to ask one question and that’s it.

Listen, so — I disrupt my train of thought. Let me think. So — so just to — just recently, this month, Chairman Hensarling of the Financial Services Committee created a whole new committee on terrorism financing because it’s such a huge issue.

Bombs went off in my district several months ago. The police caught the guy but the question is where did he get his money from?

So cracking down on terrorism financing is a real concern. And I would say why are people hiding money?

A lot of times it’s not just to save on taxes. It’s because they’re selling guns, they’re selling human bodies, or they’re involved in drugs or all kinds of things that basically hurt people.

So I’m trying to — and I join you with your question: find a solution — and I look forward to working with you on it — that allows us and law enforcement to go after the bad guys but protects people like Mr. Kuettel.

So my question is to Mr. Kuettel: would the exemption, that was really put forward by the Taxpayer Advocate Service that basically recommended that the IRS exclude from FATCA reporting financial accounts maintained by a financial institution and the country in which the U.S. citizen is a bona fide resident — that would have taken care of Mrs. Nelson’s situation which she explains so clearly — but as a bona fide citizen of — of — of Switzerland, this particular change would have excluded you from this burden. Is that correct?

KUETTEL: (OFF-MIKE)

MALONEY: Pardon me?

KUETTEL: I fear not.

MALONEY: Why not? Because you’re a bona fide citizen in a company — in a country, you would no longer have to do the FATCA. That’s what this recommendation says.

KUETTEL: From my experience, the damage of FATCA has already been done. The banks are already terrified of America. If you just exclude local residents from FATCA, they still have the reporting requirements for the taxation.

When I take my daughter here to a bank, practically any bank, the first question is, “Are you taxed by America?” They don’t ask, “Are you reportable by America?” They ask, “Are you taxed?” Meaning she’s a tax threat.

(CROSSTALK)

MALONEY: And that’s the current law now. But if the law changed so that if you’re a bona fide citizen, you could just say back to them, “I am a bona fide resident of this country, therefore” — or you could get a form from our government that says therefore if you’re going to a financial institution in your country . . .

I — I — I would like to get legal counsel to look at it because I believe you would be exempt under these types of recommendations.

In any event, something needs to be done on it. And I thank the chairman for his attention to it and his personal involvement in it.

And absolutely all of — all of the panelists. But I do believe cracking down on — on terrorism financing, which is one of the major reasons of this, is a critically important concern, unfortunately, in the world now.

So thank you and I yield back and I thank you and I’m sorry I couldn’t yield but I’m in trouble right now.

MEADOWS: That’s alright. I’ve got a very long memory. So that’s . . .

(LAUGHTER)

We’ll go from there. I thank — I thank the gentlewoman for . . .

MALONEY: (OFF-MIKE)

MEADOWS: No. I understand justice — a Supreme Court Justice or a member from Congress or North Carolina – I would have made the same choice you did.

So — no, I thank the gentlewoman for her interest. So let me — let me — the — in the interest of clarity, let’s talk about what this is and what it is not.

This is really not about the terrorist organizations that — that go and deal with that.

I — I have a little bit of expertise there. The Hezbollah sanctioning bill was a bill that I actually started in the first Congress. I understand the aspects. It is now law. It is affecting behavior because we’re going after money for terrorists.

But we use totally different vehicles than this particular vehicle. And so to suggest that they’re one in the same would not be accurate. I mean — and when you look at Central Bank activity and the moving of funds and all of that, it is a very different issue.

It is very complex, but it’s very different. I have real problems with us treating citizens of the United States who happen to live abroad differently than citizens of the United States that happen to live in the contiguous 48 or whether it’s Puerto Rico or anywhere else.

When we start to look at this, it is critically important that we understand the constitutional foundations of who we are as a nation.

And in the interest of everything that we know, we can go after all kinds of things where we start violating the civil liberties of individuals in the interest of compliance.

And that’s why we have — our founding fathers set it up — that’s why we have a Fourth Amendment. And we’ve got other areas where the Fourth Amendment is being challenged.

And so Ms. Bean, I would ask you to have an open mind and try to figure out those areas where the side effects and the testimonies that we’ve heard from these individuals and others, thousands of others, are being affected.

So I’d ask you to keep an open mind and look at that. Mr. Bopp, I’d ask you to look at it from a different perspective.

In assuming that we can’t get enough bipartisan support, which I believe we can, but if we can’t get enough bipartisan support to repeal this and actually replace it with something else — and I hate to use the word repeal and replace in the context of — of anything these days.

(LAUGHTER)

But as I look at this, if we can look at repealing and replacing it with something, I would ask you to — to take the thoughtful suggestions here.

Here is my closing remark. Senator Rand Paul recognized an issue that was brought to him not only from his concern for freedom loving individuals and the Constitution, but it was something that was highlighted over and over again. And if you travel abroad, we have U.S. citizens who love the United States.

Who truly — some of them are more patriotic than some who live in my state of North Carolina.

And yet they’re being forced with a decision of do they renounce the country they love so that they can continue to transact even a normal bank account? And — and that’s a choice that we shouldn’t be forcing people to make.

I think there are ways that we can figure this out and tailor this so that we truly go after those who have a problem with tax — not only avoidance but criminal activity. We — we know that indeed that it is our obligation to pay taxes, and to avoid that in an improper manner is certainly not anything that a Republican or a Democrat would condone.

And so it is in that spirit that I would ask you to report back here the three recommendations.

Get as many — we won’t limit it to three but if — if you don’t give me three you’ll hear from us. How about that? Is that — is that a deal?

I want to thank all of you for the discussion and — and truly for your testimony. It’s been very illuminating. If there is no further business before the committee, this committee stands adjourned.

END

Hands Down this is the Worst Academic Piece About FATCA ever Written

 

 

Profesor Paul Caron, on his TaxProfBlog posted the following article:
CONSIDERING “CITIZENSHIP TAXATION”:
IN DEFENSE OF FATCA
20 Fla. Tax Rev. 335 (2017):
by Young Ran (Christine) Kim

 

If any description could possibly be demonstrated over & over in this piece it would be the term “offensive.”  I confess to a hard-edged bias against academia, likely for the same reasons as most people; i.e., the rather noticeable and consistent lack of everyday common sense. Even in my own field (piano performance, where a doctorate is called a DMA not a Phd) there is a prevalence of people who may be perfectly schooled in the accuracy of Baroque ornaments, precise methods of articulation in Classic-period pieces or any number of other tedious accomplishments yet their actual playing (which is the whole point of a performance degree vs an academic one) is so devoid of vitality and inspiration it is enough to make one weep. I don’t know if the same exists in all disciplines but one thing that does apply here is a complete (and I mean complete) lack of awareness on the part of the author, of the harshness of how these theories play out on the lives of REAL people. What would make much more sense would be to address these problems head-on rather than justify “concepts” through a lot of theoretical jargon.

 

The following comment says it well:

 

The people affected by “citizenship-based taxation” are U.S. citizens and Green Card holders who live outside the USA and are “tax residents” (and often citizens) of other nations. The paper discusses (sort of) “citizenship-based taxation” as an abstract concept without considering the brutal effects that it has on the people subjected to it. The acknowledgement of the difficulties with pensions, retirement planning, foreign spouses, mutual funds, CFC rules, etc. (the reality of citizenship taxation) is most notable in its absence. And no, FBAR and Form 8938 (as obnoxious as they may be) are reporting requirements and not the specific tax rules (PFIC, etc.) that affect Americans abroad. I suspect that this paper will be subjected to the criticism that it so richly deserves.

Posted by: John Richardson | May 26, 2017 1:14:02 PM

While this criticism can be equally leveled at the members of Congress who passed FATCA, the Treasury Department personnel who wrote the regulations and last but not least, the heartlessness of many tax compliance practitioners, there is something especially repugnant about those pontificating from their ivory towers, proclaiming that FATCA, citizenship-based taxation, global transparency and all the rest of it, are worth the grief being caused.

Ms Kim indicates her paper finds its origins in Ruth Mason’s recent article, Citizenship Taxation, [89 S. Cal. L. Rev. 169 (2016),

A major difference between the two is that Ms Mason basically sees citizenship taxation in a negative light while Ms. Kim attempts to find it as a natural basis to support FATCA.

She addresses three main arguments; the fairness argument, the efficiency argument and the administrative argument.
 

I.) THE FAIRNESS ARGUMENT

 

Individual taxpayers’ obligations to file Foreign Bank Account Reports (FBAR) or report under the Foreign Account Tax Compliance Act (FATCA) are not seriously onerous. The fact that citizenship taxation along with FBAR and FATCA enhances global transparency further supports the case for citizenship taxation……..because the rules have been improved through various exceptions and substantially high reporting threshold amounts.

Ms. Kim asserts that the obligation to file FBARS is not “seriously onerous.” The very real threat of a non-willful penalty of $10,000 per account per year (or worse for “willful) is certainly enough to strike the fear of God in even the most reticent individual. The idea that this reality is not considered when evaluating FBAR is beyond reasonable. Articles about FATCA often cover only the reporting done by the FFI’s. However, the other component is the requirement to file 8938’s which duplicate information from the FBAR and can incur serious penalties. The average person is not able to complete an 8938 and will have to pay to have a professional do it. Nowhere in this article does the author address the issue of compliance costs for individuals which can easily be $2500 a year for someone owing no tax and involve 50 or more pages of returns. Not onerous? Furthermore, there are simply NO FIGURES yet, to make any claim that FATCA “enhances global transparency.” Professor William Byrnes describes
the oft-quoted figure of $10 billion. This amount has absolutely NOTHING to do with FATCA; it is largely comprised of penalties and interest collected through the OVDI programs (and does not even represent actual tax recovered). While the FATCA thresholds are higher, please, the threshold for FBAR remains at $10,000, the same figure when the Act was created in 1970 – 47 YEARS AGO!
 

FOCUSING ON THE ABILITY TO PAY PRINCIPLE

First, consent theory argues that taxing nonresident citizens is justified because retaining citizenship represents consent to such taxation.

 
One cannot consent to something one doesn’t even know about. Is the author completely unaware of the history underlying the persecution of expats once Treasury/Justice went after the Swiss banks in 2008? There are still likely more Americans abroad who remain unaware of the obligation to file taxes and worse yet, the oppressive information returns with penalties simply for not filing a piece of paper (i.e. no tax due). For those who do know and who retain citizenship, keeping it is much a matter of confusion and fear and could hardly be described as “consenting to taxation.”

 

Second, benefit theory attempts to justify citizenship taxation as an obligation of nonresident citizens in return for the benefits they receive from the government.

This argument is so ridiculous at this point it is hard to believe it remains part of the discussion. Cook v Tait is nearly 100 years old and does not address the large changes globalization has produced. There is the endless  nonsense of hearing how “The Marines will come to rescue you,” after which you receive a full bill. How many living in first-world countries have any need for “rescue?” And last but not least we “owe” the U.S. for consular services (for which we pay, dearly in the case of renouncing – $2350 or $50 USD to notarize a single page). All tiresome and nowhere near justifiable for being taxed “the same” as Homelanders.

 

Third, social obligation theory

the underlying assumption of this theory is that people have an obligation to pay taxes to support the members of the society to which they belong in accordance with their ability to pay taxes, which should be measured by their worldwide income.

I remember my reaction to Prof Michael Kirsch’s comments (at the ACA Program in Toronto, May 2014, “CBT vs RBT”)regarding polity and such. It seemed ridiculous to me to consider those of us living outside the United States as being a member of that society in any meaningful way. In my own life, now 35 years outside the U.S.(over half my life), the only times I identified as a “member ” of U.S. society was when defending against strong anti-American sentiment (the first few years away) and national tragedies such as 911. I cannot see any way that those infrequent occurrences defined me as being an American more than being a Canadian.  I would say a more meaningful and valid way to apply the social obligation theory is whether or not I support policies that promote the social welfare of those around me, whether or not I give the homeless guy I see everytime I go to the bank, a bit of money so he can buy some lunch. IOW, except in an idealistic or nostalgic way, one can really only measure his/her “social obligation” based upon what they come face-to-face with, i.e., where they live.

 

Due to the different factors affecting the ability to pay, such as difference in the standard of living or amenities between places, “it would be fairer to calculate a person’s ability to pay by reference to the place where she lives rather than to the place where she holds her citizenship.”

“actually tax them alike,” which would require the repeal of the foreign-earned income exclusion and the allowance of unlimited foreign tax credits, including foreign consumption taxes, as well as the implicit taxes and subsidies to compensate the differences.

 

While all expats readily understand the reality that they are NOT “taxed the same” as Homelanders, the idea of being able to adjust all these factors to the number of foreign countries with all the differences in structure etc., absolutely discourages any realistic notion that this could ever be accomplished. Current retirement-oriented plans such as the Australian Super; the lack of recognition of tax-deferred vehicles registered by governments being treated the same as their US equivalents; requiring capital gains tax on the sale of principle residences which are tax-free in the countries where they are located ; and above all else, the obscene “savings clause,” all speak to the built-in bias the US has for anything “foreign” and its pronounced tendency to punish people for making use of non-US instruments. Add the effect of the Patriot Act, which makes it impossible to even open a US account with a foreign address and a non-resident American understandably lacks the will to try and weave one’s way through all these complicated, impossible-to-delineate requirements and procedures. The fact that the IRS does not clarify ambivalent sections such as §877A as well as the fact that no two compliance professionals can be counted on to give the same opinion is proof positive that disparate tax systems simply cannot be adjusted “fairly.”
 

when its critics condemned the new obligations to file FBARs and FATCA as an excessive compliance burden for nonresident citizens created by the Bank Secrecy Act.

There are no “new” obligations to file FBARs; they have been required (and unenforced) since 1970 and are part of Title 31. FATCA was NOT created by the Bank Secrecy Act. It comprises part of the H.I.R.E. Act (2010) and is part of 26 U.S.C. § 1471–1474, § 6038D.

II.) THE EFFICIENCY ARGUMENT

citizenship taxation may distort both Americans’ and non-Americans’ citizenship decisions, is not convincing

American citizenship renunciation rate is not particularly serious compared to other countries

residence-based taxation confronts an additional hurdle on top of enforcement difficulties: determining the residence of the individuals. Determining residence by considering all facts and circumstances creates problems beyond enforcement difficulties. The facts-and-circumstances test itself contains inherent problems when compared to a bright-line test

….and to what extent renunciation is treated as immoral and/or illegal, and so on.

The idea that citizenship taxation does not affect the decisions of Americans abroad concerning their citizenship is patently absurd. Without question, citizenship taxation IS THE MAIN REASON anyone renounces. Not because of tax per sé (don’t even think of trying to scare with the Reed Amendment) but rather, due to all the complications of trying to match two different tax systems. Add the non-financial issues such as the stress on marriages (to “aliens”), passing U.S. citizenship on one’s children, etc. etc. It has become a nightmare not worth living and something to escape if one can.

Ms. Kim devotes a long section to establishing the idea that the renunciation rate of U.S. citizens is “not particularly serious.” Again, we have someone indicating that unless the numbers are large, whether compared to that of other countries, the proportion of renunciations to the numbers of those abroad or to the number of entering immigrants, there is nothing being lost here. If that is the case, then the U.S. has virtually nothing to lose by simply letting these people go without all the forms, swearing under penalty of perjury and so on. One might occasionally consider that Americans abroad were once the best ambassadors the country could have. Now those tables are turned and some are more anti-American than any “alien” could ever be. Nothing like betrayal to warm the heart.

Regarding determination of residency, it is interesting that all 191 other countries of the world are able to surmount this difficult obstacle, which will be even more pronounced once CRS is operative. The “bright line test” which I presume means using citizenship rather than residency to base reporting on, is not truly useful given the fact that only the U.S. (Eritrea does not count) does this. When a U.S. citizen is living abroad with dual citizenship, with no determinant indicia, ask any bank how easy it is to establish whether or not one is a U.S. citizen. If it were clear, one would not see so many institutions refusing to serve Americans.

The Expatriation Act of 1868 gives all Americans the right to give up their citizenship if they so desire. It is not an issue of illegality. When a country treats its own citizens in the manner we have experienced from 2009 onwards (particularly the Accidental Americans who are not American in any normal understanding of the term), who is there to even suggest renunciation is immoral?

III.) THE ADMINISTRATIVE ARGUMENT

ENFORCEMENT DIFFICULTIES

Citizenship taxation has been criticized as difficult to enforce on nonresident citizens abroad….Determining residence by considering all facts and circumstances creates problems beyond enforcement difficulties

Next to failing to point out the outrageous 30% withholding “sanction” inflicted on every other country of the world, this has to be the weakest argument in this paper. The fact that the U.S. cannot effectively collect anything outside of the country is the number one reason people feel safe in remaining “under the radar.” After the initial scare of 2009/2011 seeing that the people hurt the worst were those who tried to do the right thing, people started considering the reality that being identified (“caught”) may amount to virtually nothing for a number of reasons. First of all, the majority of expats who are not compliant are NOT wealthy tax cheats with foreign accounts in order to deprive the U.S. of tax revenue. They are first of all, compliant where they live, which speaks volumes. Secondly, they have these “foreign” accounts in order to live their lives. This is in no way comparable to Homelanders who are guilty of tax evasion when they stash money in tax havens (and let’s not forget Delaware, Nevada, South Dakota and Wyoming, shall we?). The Revenue Rule still stands; even the 5 countries with Mutual Collection Agreements (Canada, Denmark, Sweden, France and the Netherlands)WILL NOT collect on those who were citizens of their countries at the time the tax was incurred. Canada WILL NOT collect FBAR penalties. With regard to fear about crossing the border, if one is not in the U.S. system, there is nothing for the IRS to report to DHS or CBP etc. All these things may change over time but as it stands now, the most IRS can do to most people, is send them a letter asking them to pay. EXACTLY WHAT IS THE POINT OF HOLDING ON TO CBT IF THERE IS NO WAY TO COLLECT?

Is the Compliance Burden Actually Onerous?

the IRS has provided the OVDI that a U.S. taxpayer can utilize to avoid criminal sanctions for the failure to report the existence of, and income earned on, a foreign account on tax returns as well as for the non-filing of the FBAR. In exchange for avoiding criminal sanctions, taxpayers will generally be subject to a 27.5% penalty on the highest aggregate value of their undisclosed offshore assets.86 In addition, for non-willful violators, IRS provides Streamlined Filing Compliance Procedures (SFCP), a program that was expanded in 2014 to cover a broader spectrum of U.S. taxpayers residing abroad and to provide penalty relief. Therefore, nonresident citizens who no longer have a strong economic and social connection with the United States or happenstance Americans are no longer likely to be subject to the severe FBAR penalties.

To suggest that OVDI and Streamlined “make everything alright” is to avoid the real issue altogether which is that citizenship taxation is simply wrong. No other country on earth “claims” its citizens for life. (Eritrea does not count). No other country on earth taxes its citizens after they abandon residence. No other country on earth applies an Exit Tax on assets that were acquired prior to obtaining residence in that country. There are reasons why no other countries do any of the things associated with citizenship taxation. It’s high time the United States stop this appalling abuse of human rights.

THIS ARTICLE FURTHER AIMS TO DEFEND the administrability of citizenship taxation in conjunction with the Foreign Bank Account Reports (FBARs) and the Foreign Account Tax Compliance Act (FATCA).

FBAR-absolutely not the way it is being conceived of now. FBAR, created in 1970 was aimed at uncovering money being laundered in smuggling, the drug trade and terrorism. It also was not originally conceived of being applied to those outside the U.S. Once the DOJ/Treasury departments went after the Swiss banks, they realized they could stretch the intent of FBAR to apply to non-resident Americans and the penalty regime thickened.

The criticism… has continued even after the U.S. government committed to enter into Intergovernmental Agreements (IGAs) in an attempt to address those concerns

A huge oversight on the part of the author. FATCA was without question an extraterritorial imposition on other countries. Only the United States would be as uncivil as to suggest imposing a 30% withholding charge on their allies and trading partners. The U.S. appeared not to understand that other countries could not comply even if they wanted to as privacy laws prevented the level of reporting required by FATCA. Banks would be sued were they to comply. To suggest that the US committing to the IGAs was a gracious act is revolting. Under the guise of being rooted in tax treaties, the IGAs simply bypassed what should have been required; that Congress ratify such agreements and implement legislation to do so. There is nothing in FATCA that warrants the creation of the IGAs. The U.S. downloaded ALL of the costs of compliance to the other countries. There is no mention of any penalties for the U.S. failing to comply. The U.S. made only the vaguest promises of reciprocity. It is simply unbelievable that the immorality of taking capital out of other nations is considered acceptable by the United States.

IV>) FATCA:MERITS AND CONCERNS

The OECD’s AEOI and the U.S. FATCA are two important developments, but FATCA plays a more important role.
First, FATCA provided critical momentum
Second, FATCA facilitates multilateral implementation of AEOI by creating an extensive network with more than 100 countries in the world, at the center of which is the United States.

This is unsubstantiated nonsense. First of all, it is bizarre to say FATCA “plays a more important role” Who gains from FATCA other than the United States? So far, nobody. The United States is at the Center of AEOI/CRS? The US has not even signed on to CRS. There are huge differences that matter greatly. The OECD AEOI/CRS agreements are determined by the countries involved; the terms of residency are established by those exchanging the information. FATCA is vastly different in that the United States alone determines who is/is not a “US Person” “US Citizen” irrespective of the status of such a person to the other country. And so far, the U.S. is not “paying its fair share” by requiring its banks to implement the same systems and legislation required (imposed) by FATCA. The IGAs do not constitute “acceptance” by other countries. To think otherwise is ridiculous. One could not possibly view such stipulations as reasonable.

criticism that…. FATCA exposes taxpayers’ private information to potential abusive use by foreign tax authorities.

This is a matter of real concern to Americans abroad living in some of the more troubled areas of the world-or those living Colombia in South America and particularly in some of the Middle East countries. Ironically enough, the U.S. has had some of the worst breaches of security and leakage of private information; certainly this is disturbing and worrisome.

Ms. Kim’s discussion of the Bopp FATCA lawsuit I will leave to someone else.

Second, opponents of FATCA and EOI argue that an EOI system removes a country’s unilateral control over its own tax policy, resulting in the forfeiture of sovereign autonomy. Although such argument has withered since the U.S. government entered into IGAs with other countries, it was strongly asserted by Canadian opponents of FATCA when the IGA Implementation Act included in Bill-31 was debated in Canadian Parliament.

How outrageous to suggest a foreign country does not have the right to have unilateral control over its own tax policy. The proof is in the pudding. The U.S. would never allow the equivalent. The IGA’s are the proof.
I have watched the video of the Canadian FINA hearings on FATCA many, many times. It is not possible to convey the absolute disgust we have for the majority Conservative government which minimized completely, the capitulation that occurred with the implementation of the IGA. It was nothing more than protecting the banks, without any regard to the effect it would have on Canadian citizens resident in Canada.

However, a government’s control over its tax policy is more severely harmed when a country segregates itself from the global community and loses the ability to enforce effectively its own tax laws against its taxpayers with interests in foreign jurisdictions

More unsubstantiated nonsense. This is an opinion completely unsupported up by any facts.

A Case for American Exceptionalism

conclusion, if FATCA makes the world better off by enhancing global transparency on tax information, then this may serve as another support for citizenship taxation, as well as an example of constructive exceptionalism.

While all of us raised in America understand unconsciously what exceptionalism is, it truly takes living outside the country to appreciate how incredibly arrogant and offensive it is. It is questionable whether FATCA “makes the world better off….” that a questionable tenet should “serve as a support for the imposition of citizenship taxation.” It is nothing short of reprehensible that the author should suggest what the U.S. has done is “constructive” or in any way justifies the gross aberration of power demonstrated by the creation of FATCA.

May 13, 2017 Canadian Federal Court FATCA IGA lawsuit update: Motion for Summary Trial now submitted

“…The government of Canada has a responsibility to stand up for its citizens when foreign governments are encroaching on their rights…We believe that the deal reached between Canada and the U.S. is insufficient to protect affected Canadians…” June 2015 Pre-Election statement of Mr. Justin Trudeau (now Prime Minister of the Government we are suing) to a constituent

May 13 2017 Canadian FATCA Litigation Update:

SUMMARY TRIAL MOTION has now been submitted on Constitutional/Charter issues. We are finally moving closer to trial and our Vancouver litigators have now served and filed in Canada’s Federal Court a “Notice of Motion for Summary Trial”.

As detailed in this brief motion (see link) this is a pleading to the Federal Court of Canada for a summary judgement we are seeking on the Constitutional-Charter issues.

We argue in the motion that the Canadian legislation enabling the FATCA Intergovernmental Agreement (IGA) violates Canada’s Constitution Act (by forfeiting Canada’s sovereignty and facilitating the extra-territorial enforcement of a foreign state’s taxation and tax compliance regime on Canadians) and Canada’s Charter of Rights and Freedoms (Sections 7, 8, and 15).

There is this statement in the Motion:

“The contours of United States citizenship and the definition of US Person are matters of United States law and/or policy and are subject to be changed by the United States at any time.”

There is also this:

“It is a principle of international law that every sovereign state has the right to conduct its affairs without intervention by other states (the “Principle of Non-Intervention”). The Principle of Non-Intervention is at the core of the international legal order and is a corollary of every state’s right to sovereignty, territorial integrity and political Independence. The Principle of Non-Intervention is an element of the unwritten constitution.”

Will the Federal Court of Canada accept this Constitutional argument?

This motion is NOT the main, detailed legal submission (i.e., where all of the case law is discussed, etc.) which will be filed much closer to the hearing date (yet to be decided).

AFFIDAVITS. You will notice on pages 22-23 a long list of affidavit titles. Because of a technical issue related to the litigation, it is not possible to publish the text of these affidavits at the present time.

Some of the affidavits include those we previously submitted and those Government submitted – which we feel will help our case.

There are also expert reports from three witnesses (Ryan Liss, Roy Berg, Kevyn Nightingale) who were selected by our litigators to provide an expert opinion based on our litigators’ assessment of their expertise and experience.

In addition, there are affidavits listed from lay witnesses.

Our litigators made a strategic decision on the selection of specific lay witnesses for the trial from the larger group of volunteers. I thank the lay witnesses and all witness volunteers for their courage and commitment to push for return of Canada to Canadians.

LIKELY NEXT STEPS. On May 19, 2017 there will be a teleconference with Government, Case Management Judge, and our side to deal with the Government Motion to compel further documents from the three plaintiffs (we oppose the motion).

After the ruling, Examinations for Discovery of the three expert witnesses and the plaintiffs will be scheduled and conducted. Our lawyers will likewise examine the Attorney General’s witnesses. It is also possible that the Attorney General might examine our lay witnesses. We currently do not know if they will elect to do so.

Upon completion of the all examinations of the parties, and after filing all required submissions, we will await a trial date to be set by the court. Trial dates are dependent on the availability of Justices and court (backlog) schedules.

I know that the slow pace of our litigation is frustrating. Thank you for your continued support and kind thoughts.

Stephen Kish

Continue reading “May 13, 2017 Canadian Federal Court FATCA IGA lawsuit update: Motion for Summary Trial now submitted”

Searching for Uncle #FATCA: Where is he? What does he do? Why is he a danger to America? Can Congressman Meadows and Senator Paul save America?

 
Searching for Uncle #FATCA: Where is he? What does he do? Why is he a danger to America? Can Congressman Meadows and Senator Paul save America?
 

 
 
 
 
 

A Guest Post by
John Richardson

 


 
Congressman Mark Meadows has recently introduced H.R. 5935 – a
bill to “Repeal FATCA”. The title is:

H.R.5935 – To repeal the
violation of sovereign nations’ laws and privacy matters
.”

The title provides strong clues of the motivation for the bill. I
received an email asking exactly how the Meadows Bill would “repeal
FATCA”. This post is an attempt to answer that particular question. In
order to understand how the Meadows Bill would repeal FATCA, one must
understand exactly what is the FATCA law that would be repealed.
(Note that a repeal of FATCA would leave the FATCA IGAs
intact.)
I have previously written about the origins of Mr. FBAR. This
“Search For Uncle FATCA” – a search for what America
has become – is a companion post.

Part 3 – What does it mean to repeal FATCA and how exactly does
the Meadow Bill repeal FATCA? A section by section analysis

I apologize for the long post, but don’t have time to write a
shorter one …

I was asked to answer the question:

“What exactly would it mean to repeal FATCA?”

The short answer to the question is:

“We make FATCA go away by reversing all the changes to the Internal Revenue Code that collectively comprise FATCA.”

The real question becomes: “How do we reverse FATCA?”

The detailed answer is long and technical.
It includes (as appendixes) the complete text of Part V of the HIRE
Act
(which created FATCA) and the complete text of H.R. 5935 – the Meadows Bill. I would not expect people to read the text of the legislation (it is overwhelming).

The Three Faces Of FATCA

Whether you support FATCA or oppose FATCA,
a broad understanding of the original FATCA legislation will help in
your “FATCA Discussions”. It will also help you understand that there
are actually “Three Faces To FATCA”. When you find
yourself in a “FATCA Chat” you should be clear on whether you are
talking about:

  • Face 1 – The part of FATCA that is aimed at
    foreign financial institutions (Internal Revenue Code Sections
    1471 – 1474 – Chapter 4)
  • Face 2 – The FATCA IGAs that have for all
    practical purposes replaced “Chapter 4: Sections 1471 – 1474”
    (the part of FATCA that applies to non-U.S. financial
    institutions) of the Internal Revenue Code
  • Face 3 – The various amendments to the
    Internal Revenue Code (particularly Section 6038D) which presume
    that Americans abroad are tax evaders and (1) force disclosure
    of much of their financial lives and (2) impose punitive
    taxation (particularly in the case of “foreign trusts” and
    penalties (form 8938) on them.

 
Question: What does the Meadows bill do actually do?

Answer: It gets rid of Face 1 and Face 3 but leaves Face 2 (The FATCA IGAs intact). This is an important point. Because the FATCA IGAs were never authorized by FATCA, the repeal of FATCA would leave the FATCA IGAs intact!

The full text of Meadows Bill is here. You will see that it reverses (section by section) the HIRE Act amendments to the Internal Revenue Code that created FATCA. It converts the Internal Revenue Code (at least in terms of FATCA provisions) to what it was before FATCA.

But, to appreciate the Meadows Bill, we must first understand FATCA in its original incarnation.

In the beginning, Congress created …

In order to understand the Meadows Bill, you must understand the legislative origins of FATCA – specifically the HIRE Act which is found here:

https://www.gpo.gov/fdsys/pkg/PLAW-111publ147/html/PLAW-111publ147.htm

All legislation must have an “Offset Provision” (which
explains how to pay for the new law). (Almost all legislation
affecting Americans abroad is found in “Revenue Offset Provisions”
.
The effect is to force a politically powerless group to pay for a
powerful majority. On this point, See the following submission made to
the Senate Finance Committee in 2015.

richardsonkish-revenue-raising-measures-april-14-2015-international-tax-1-1)

In this case the “Offset Provision” (which created FATCA) is Title 5 of
the HIRE Act. The “Offset Provisions” are summarized as follows. I have
added IN BOLD what the significance of this is. Please note that
Subtitle A is the “Income Taxes” section of the Internal Revenue Code.
Remember that FATCA contains two specific targets. Target 1 is
foreign financial institutions“. Target 2 is
Americans abroad” (and a few Homeland Americans) who
have accounts (mostly for legitimate reasons) at Foreign Financial
Institutions.

Explaining the FATCA legislation …

What follows is an explanation of what the “FATCA legislation really is.
It will explain how FATCA has two specific targets: (1) Foreign
Financial Institutions and (2) The “U.S. Persons” who make use of their
services.

At the end of the post I have included:

Appendix A – The Actual Text Of The “Offset Provision
in the HIRE Act which created FATCA

Appendix B – The Actual Text Of The Meadows Bill (which
in effect repeals the sections of the HIRE Act which created FATCA)

Explanation of what the FATCA legislation really is …

A Summary of the changes made to the Internal Revenue Code by
the HIRE Act

I have included links to the exact sections of the Internal Revenue Code
after the HIRE Act amendments. To see a discussion of
the pre-HIRE Act Internal Revenue Code, see Part B (the exact text of
the HIRE Act). This demonstrates how FATCA Targets:

  • non-U.S. financial institutions (FATCA Face 1); and
  • Americans abroad (FATCA Face 3).

Summary of the FATCA provisions in the HIRE Act

(NOTE THAT I HAVE ADDED MY COMMENTARY IN CAPITAL LETTERS.)

TITLE V–OFFSET PROVISIONS

Subtitle A (SUBTITLE A IS THE INCOME TAX SECTION OF THE INTERNAL REVENUE
CODE) –Foreign Account Tax Compliance

Part I–Increased Disclosure of Beneficial Owners
AIMED AT FOREIGN FINANCIAL INSTITUTIONS

Sec. 501. Reporting on certain foreign accounts.

THIS CREATES CHAPTER 4 (SECTIONS 1471 – 1474) THAT ARE THE SECTIONS
AIMED AT FOREIGN FINANCIAL INSTITUTIONS. IT IS WHAT MOST PEOPLE
UNDERSTAND FATCA TO BE. SEE WHERE CHAPTER 4 APPEARS HERE:

screen-shot-2016-09-30-at-7-18-29-am

It’s right there. It’s Chapter 4. That said, Chapter 4 of the Internal
Revenue Code has been rendered largely irrelevant by the FATCA IGAs.
However, here is what Chapter 4 looks like:

screen-shot-2016-09-30-at-11-07-07-am

Sec. 502. Repeal of certain foreign exceptions to registered bond
requirements

Part II–Under Reporting With Respect to Foreign Assets –
AIMED SQUARELY AT AMERICANS ABROAD – INCREASES THE OVERALL
REPORTING REQUIREMENTS FOR U.S. PERSONS, CREATES FORM 8938 AND IMPOSES
PENALTIES ON NORMAL DAY-TO-DAY-LIVING

Sec. 511. Disclosure of information with respect to foreign financial
assets. – CREATES INTERNAL REV CODE 6038D WHICH RESULTS IN FORM 8938.
INTERNAL REVENUE CODE S. 6038D READS AS FOLLOWS:
 

26 U.S. Code § 6038D – Information
with respect to foreign financial assets

(a) In general Any individual who, during any taxable year, holds any
interest in a specified foreign financial asset shall attach to such
person’s return of tax imposed by subtitle A for such taxable year the
information described in subsection (c) with respect to each such asset
if the aggregate value of all such assets exceeds $50,000 (or such
higher dollar amount as the Secretary may prescribe).

(b) Specified foreign financial assets For purposes of this section, the
term “specified foreign financial asset” means—

(1)any financial account (as defined in section 1471(d)(2)) maintained by a
foreign financial institution (as defined in section 1471(d)(4)), and

(2) any of the following assets which are not held in an account
maintained by a financial institution (as defined in section 1471(d)(5))

(A)any stock or security issued by a person other than a United States person,

(B) any financial instrument or contract held for investment that has an
issuer or counterparty which is other than a United States person, and

(C) any interest in a foreign entity (as defined in section 1473).

(c) Required information The information described in this subsection
with respect to any asset is:

(1)In the case of any account, the name
and address of the financial institution in which such account is
maintained and the number of such account.

(2) In the case of any stock or security, the name and address of the
issuer and such information as is necessary to identify the class or
issue of which such stock or security is a part.

(3) In the case of any other instrument, contract, or interest—

(A) such information as is necessary to identify such instrument, contract, or
interest, and
(B) the names and addresses of all issuers and counterparties with
respect to such instrument, contract, or interest.

(4)The maximum value of the asset during the taxable year.

(d) Penalty for failure to disclose

(1) In general If any individual
fails to furnish the information described in subsection (c) with
respect to any taxable year at the time and in the manner described in
subsection (a), such person shall pay a penalty of $10,000.

(2) Increase in penalty where failure continues after notification If
any failure described in paragraph (1) continues for more than 90 days
after the day on which the Secretary mails notice of such failure to the
individual, such individual shall pay a penalty (in addition to the
penalties under paragraph (1)) of $10,000 for each 30-day period (or
fraction thereof) during which such failure continues after the
expiration of such 90-day period. The penalty imposed under this
paragraph with respect to any failure shall not exceed $50,000.

(e) Presumption that value of specified foreign financial assets exceeds
dollar threshold If—

(1)the Secretary determines that an individual has
an interest in one or more specified foreign financial assets, and
(2) such individual does not provide sufficient information to
demonstrate the aggregate value of such assets, then the aggregate value
of such assets shall be treated as being in excess of $50,000 (or such
higher dollar amount as the Secretary prescribes for purposes of
subsection (a)) for purposes of assessing the penalties imposed under
this section.

(f) Application to certain entities To the extent provided by the
Secretary in regulations or other guidance, the provisions of this
section shall apply to any domestic entity which is formed or availed of
for purposes of holding, directly or indirectly, specified foreign
financial assets, in the same manner as if such entity were an
individual.

(g) Reasonable cause exception No penalty shall be imposed by this
section on any failure which is shown to be due to reasonable cause and
not due to willful neglect. The fact that a foreign jurisdiction
would impose a civil or criminal penalty on the taxpayer (or any other
person) for disclosing the required information is not reasonable
cause.

(h) Regulations The Secretary shall prescribe such regulations
or other guidance as may be necessary or appropriate to carry out the
purposes of this section
, including regulations or other
guidance which provide appropriate exceptions from the application of
this section in the case of—

(1) classes of assets identified by the
Secretary, including any assets with respect to which the Secretary
determines that disclosure under this section would be duplicative of
other disclosures,
(2) nonresident aliens, and
(3) bona fide residents of any possession of the United States.

(Added Pub. L. 111–147, title V, § 511(a), Mar. 18, 2010, 124 Stat.
109.)

 

THE FOLLOWING POINTS ARE NOTEWORTHY:

  1. THE REFERENCES TO S. 1471 AND OTHER SECTIONS OF THE CHAPTER 4
    FATCA PROVISIONS.
  2. THE SECRETARY HAS THE AUTHORITY TO EXEMPT NONRESIDENT ALIENS
    FROM THE FORM 8938 FILING OBLIGATION AND HAS CHOSEN TO DO SO.
    THE EXEMPTION EXTENDS TO GREEN CARD HOLDERS
    WHO ARE, BY VIRTUE OF TREATY TIE BREAKER RULES, NONRESIDENT
    ALIENS.
  3. THE SECRETARY MAY PRESCRIBE A REPORTING THRESHOLD WHICH
    EXCEEDS $50,000 (WHICH HAS BEEN DONE IN THE CASE OF AMERICANS
    ABROAD)
  4. THE SECRETARY HAS THE A BROAD AUTHORITY TO PRESCRIBE
    REGULATIONS TO CARRY OUT THE PURPOSES OF S. 6038D. THIS IS
    PROBABLY BROAD ENOUGH TO EXEMPT AMERICANS ABROAD, WHICH
    PRESUMABLY IS THE BASIS FOR THE SUGGESTED FATCA SAME COUNTRY
    EXEMPTION
    . NOTE THAT IN DECEMBER 2016 TREASURY SPECIFICALLY
    CONSIDERED AND REJECTED THE FATCA SAME COUNTRY EXEMPTION
    PROPOSED BY “ACA”
    AND “DEMOCRATS ABROAD”.
  5. IN A CONFLICT BETWEEN U.S. LAW AND THE FOREIGN LAW, THE U.S.
    LAW WILL TAKE PRECEDENCE – SEE INTERNAL REVENUE CODE S.
    6038D.

 
The Secretary may prescribe – The FATCA Regulations – AND THE
REGULATIONS ARE HERE …

 
https://www.law.cornell.edu/cfr/text/26/1.6038D-2

https://www.law.cornell.edu/cfr/text/26/1.6038D-3

https://www.law.cornell.edu/cfr/text/26/1.6038D-4

https://www.law.cornell.edu/cfr/text/26/1.6038D-5
 

S. 6038D gave birth to IRS Form 8938 …

FATCA Form 8938 is the
Form that is used to report the “Foreign Assets” mandated by Internal
Revenue Code S. 6038D.

Effects:

1. Americans abroad are required to report virtually
all of their “foreign assets” (but local to them) to the IRS.

2. This creates a “paper trail” which will make it more likely that Americans abroad will pay an Exit Tax if (when) they renounce U.S. citizenship.

All of these concepts are summarized by the IRS here …

https://www.irs.gov/businesses/corporations/do-i-need-to-file-form-8938-statement-of-specified-foreign-financial-assets

The relationship between Form 8938 and Mr. FBAR is described here

https://www.irs.gov/businesses/comparison-of-form-8938-and-fbar-requirements

Sec. 512. Penalties for underpayments attributable to undisclosed
foreign financial assets. –

INCREASES PENALTIES WHEN TAXES OWED ON UNDISCLOSED ACCOUNTS ARE FOUND. THE INTERNAL REVENUE CODE REQUIRES THE
FILING OF NUMEROUS INFORMATION
RETURNS
. AMERICANS ABROAD ARE “PERSONS SUBJECT TO SPECIAL DISCLOSURE PROVISIONS“.
THESE SPECIFIC DISCLOSURE PROVISIONS INCLUDE S. 6038 (FORM 5471 AND FORM 8865 – FOREIGN CORPORATIONS AND PARTNERSHIPS), S. 6038D (FOREIGN FINANCIAL ASSETS ON FROM
8398) AND FOREIGN TRUST REPORTING S. 6048 https://www.law.cornell.edu/uscode/text/26/subtitle-F/chapter-61/subchapter-A/part-III

Sec. 513. Modification of statute of limitations for significant omission of income in connection with foreign assets. –
WHEN IT COMES TO FOREIGN ACCOUNTS THE IRS CAN AUDIT FOR 6 YEARS INTO OF THE USUAL 3 YEARS

Part III–Other Disclosure Provisions

Sec. 521. Reporting of activities with respect to passive foreign investment companies. –

FOR THE FIRST TIME PFICS ARE REQUIRED TO BE DISCLOSED WHETHER THERE IS OR THERE IS NOT INCOME FROM THE FUNDS (THIS
IS INCREDIBLY SIGNIFICANT) – INTERNAL REV CODE 1298(f) https://www.law.cornell.edu/uscode/text/26/1298
WHAT THIS MEANS IS THAT AMERICANS ABROAD WHO OWN A NON-U.S. MUTUAL FUND ARE REQUIRED TO REPORT THIS TO THE IRS WHETHER OR NOT THEY ARE OTHERWISE REQUIRED TO FILE A U.S. INCOME TAX RETURN!

The disclosure takes place on Form 8621. The instructions to Form 8621 are incomprehensible to all but a select group of tax preparers. IT IS VERY
EXPENSIVE TO PAY A TAX PREPARER TO COMPLETE FORM 8621.

Effect: Americans abroad are effectively prohibited from owning
all but U.S. mutual funds.

Sec. 522. Secretary permitted to require financial institutions to file
certain returns related to withholding on foreign transfers
electronically.

Part IV–Provisions Related to Foreign Trusts

Sec. 531. Clarifications with respect to foreign trusts which are
treated as having a United States beneficiary. – SEE INTERNAL REV CODE
S. 679(f)https://www.law.cornell.edu/uscode/text/26/679

Sec. 532. Presumption that foreign trust has United States beneficiary.
CREATES A PRESUMPTION THAT THE USA CAN TAX THE BENEFICIARY OF ANY TRUST
ANYWHERE. NOTE THAT THIS IS A PRESUMPTION, BUT IT DOES PUT THE ONUS ON
THE TRUST/BENEFICIARY TO SHOW THAT THE BENEFICIARY IS NOT A U.S. PERSON.

Sec. 533. Uncompensated use of trust property. –
BASICALLY THE USE OF TRUST PROPERTY IS NOW TREATED AS A TAXABLE DISTRIBUTION TO THE PERSON
USING THE PROPERTY – IRC SECTION 643(I)https://www.law.cornell.edu/uscode/text/26/643

Sec. 534. Reporting requirement of United States owners of foreign
trusts. –
AMENDS THE REPORTING REQUIREMENTS WITH RESPECT TO FOREIGN
TRUSTS – THE SECRETARY CAN SPECIFY WHICH INFORMATION IS REQUIRED TO BE
REPORTED

Sec. 535. Minimum penalty with respect to failure to report on certain
foreign trusts. –
CREATES A PENALTY FOR FAILURE TO DISCLOSE THE INTEREST IN THE FOREIGN TRUST (SEE S. 534 ABOVE) WHICH IS THE GREATER OF 10,000 OR 35% OF THE VALUE OF THE REPORTABLE AMOUNT OF THE TRUST. (INTERNAL REVENUE CODE S. 677)
https://www.law.cornell.edu/uscode/text/26/6677

Part V–Substitute Dividends and Dividend Equivalent Payments Received
by Foreign Persons Treated as Dividends

Sec. 541. Substitute dividends and dividend equivalent payments received
by foreign persons treated as dividends.

Subtitle B–Delay in Application of Worldwide Allocation of Interest

Sec. 551. Delay in application of worldwide allocation of interest

The Little Red #FATCA Book – Review, Identify & Report on U.S. Persons How #FATCA affects the non-US World

reposted from the citizenshipsolutions blog

As many of you know, the long-awaited #FATCA hearing will take place three weeks from today. This is exciting and followed by the news that Congressman Mark Meadows will reintroduce his repeal FATCA legislation. Closely matching is the effort of Nigel Green & Jim Jatras. The recent letter, endorsed by major think tanks, etc is here . We still await the hoped-for tax reform. The fate of those who have not yet chosen whether to become compliant and/or renounce hangs in the balance. Regardless of the outcome(s), our direction will become much clearer in the next little while.

There are so many aspects to #FATCA and how it affects the lives of expats, I suspect it is impossible to be aware of them all. One of the best things we can do, as “ambassadors” is to make sure we are thoroughly conversant with all aspects of it as we discuss it with our family and friends, on online articles and blogs.

j fatca forumJohn Richardson has long been writing about this and has re-organized his “Little Red FATCA Book.” It is likely the most complete account anywhere. I will be reposting it on all the appropriate websites, blogs and Facebook Groups/Pages. Please, share this as widely as possible. Convincing Homelanders, as impossible as it seems, will go farther than perhaps anything else, in garnering support from Congress to rectify this horrid situation. Please, don’t give up, go out and comment everywhere and make sure you know your facts!
********
The “Little Red FATCA Book” is a collection of posts that I created over an 18 month period. I have decided to collect the individual posts and organize them in one place. I have grouped the individual posts into three broad chapters which I will call Chapter A, Chapter B and Chapter C. This is a “work in progress”. Some of the posts are incomplete.

FATCA which is essentially the enforcement mechanism of U.S. “Place of Birth Taxation” is a controversial topic. Feel free to post your thoughts and comments.

John Richardson

MORE AT citizenshipsolutions blog

The agony of US citizenship for US citizens living outside the US

cross-posted from renounceuscitizenship blog

The agony of US citizenship for US citizens living outside the US
 

 
U.S. citizens cry out in agony! But, the U.S. government Silence is Deafening .

The cries are getting louder and louder! Inside the U.S. only Taxpayer Advocate seems to be listening. Outside the United States, American Citizens Abroad continues to soldier on. In Canada, the home of (probably) the largest number of U.S. citizens (many of who are also Canadian citizens) the Government of Canada is listening. Finance Minister, Jim Flaherty, has been consistent in his position that FATCA is intrusive and unnecessary and the Canada will not collect FBAR penalties. He has been consistent with the sentiments expressed in his public letter of September 16, 2011. U.S. citizens in Canada are in a far better position than U.S. citizens in other countries. Furthermore, Mr. Flaherty has been responsive to citizen’s concerns, recognizing that Canadians are desperate for help. The evidence is building. to protect themselves from the U.S. government. Take the above poll which is from a previous post describing how renunciations of U.S. citizenship are soaring under Obama. Consider the following wisdom from a U.S. citizen living in France.

Homeland Americans do not love their “Domestic Abroad” and routinely characterize them as “traitorous Benedict Arnold’s.” Now these citizens abroad are in a complete panic now that they are aware of the U.S. tax and reporting requirements. They are facing the same compliance issues as U.S. immigrants and they are now encountering discrimination in their host countries (loss of local banking services, for example, or limited retirement investment opportunities or even being cut out of business deal by non-US partners) as a result of FATCA.

Many of them cannot easily return to the U.S. – if they did they would have to close their businesses or leave their jobs, get divorces from their foreign spouses and, in some cases, leave their minor children behind in the host country. Contrary to popular belief in the homeland, the vast majority of these people are not millionaires and run a real risk of arriving back home in the U.S. with limited assets, if not in a state of outright penury. On the other hand, they can no longer continue to reside in their host countries as U.S. citizens where they risk paying double taxes (U.S. taxes in addition to host country taxes) and must pay the increasing cost of compliance (international tax specialists to file the 1040 and a whole host of other forms demanded of overseas citizens who have built lives abroad and are permanent residents of their host countries). Even Nina Olsen, the IRS Taxpayer Advocate in the U.S., said in her 2011 report:

The complexity of international tax law, combined with the administrative burden placed
on these taxpayers, creates an environment where taxpayers who are trying their best to
comply simply cannot. For some, this means paying more U.S. tax than is legally required,
while others may be subject to steep civil and criminal penalties. For some U.S taxpayers
abroad, the tax requirements are so confusing and the compliance burden so great that they give up their U.S. citizenship.And that sums up quite nicely what is, in fact, happening. Those who are in the know and can afford it are mostly “complaining and complying” while those who cannot are renouncing U.S. citizenship. 2011 was a banner year for renunciations of U.S. citizenship. 2012 will be worse (see this and this excellent analysis over at Overseas Exile.)

http://thefranco-americanflophouse.blogspot.ca/2012/03/diaspora-tax-war-of-2012-stakeholder_27.html

In addition to the current Government of Canada, the Official Opposition of Canada (NDP) is taking the IRS assault on Canadian citizens very seriously. Individual MPs have made an effort to respond and educate. Individual MPs have organized public meetings. Interestingly, the newest NDP MP, Craig Scott is a law professor/human rights lawyer. Furthermore, he attended a public meeting about FATCA. He would be a great addition to the cause. Interestingly there has been very little support from the Liberal Party of Canada. Here is a letter from Bob Rae. Although the Green Party of Canada has only one seat in the House of Commons, their leader Elizabeth May (who was born in the U.S.) has expressed her support for Canadians.

As the FATCA implementation date comes closer and as we find ourselves in tax season, many U.S. citizens (whose only crime is to live outside the United States) are living in a state of desperation and agony. Some samples:

This man gives the word “prescient” real world application:

In closing, some “psychotherapy for U.S. citizens living outside the United States” – the Widsom of Moe Levine:

We are living in interesting times.

Burning Down Barns is not Wrong Because it is illegal; it is illegal Because it is Wrong

 

Burning Down Barns is not Wrong Because it is illegal; it is illegal Because it is Wrong

 


 

Every #Americanabroad (along with his/her “alien” family) understands all too well the reality of the betrayal perpetrated by the U.S. government in the fight against “tax evasion.” To have it then furthered by the country of residence changing the law in order to allow it is a further betrayal. One does not feel betrayal unless one has been wronged.
 
The government would have one think that it is walking the moral high road, taking upon itself the noble fight of searching out those who rob everyone else because they are not “paying their fair share.” Isn’t it just and right to do so? On the surface it would apppear it is but the problem becomes twofold. First, it has to be devised well-enough to actually produce the results it seeks to achieve and second, while doing so, certain rules of fairness about how the attempt is applied are required. Every kid on a playground learns this and readily understands when the rules are broken.
 

It is easy enough to see that the FATCA hunt has huge “design problems.” First off, the U.S. indicia are all items that suggest one lives in the Homeland. There is nothing to “weed out” those who aren’t American but don’t have CLN’s (and that doesn’t mean you are an American). Banks turning in people below the thresholds is truly wasteful as those people are so unlikely to owe tax. The crowning glory however, is that there is no simple way for the IRS to get money from people outside the country unless they willingly send it. I cannot think of any aspect of FATCA that would suggest it is well devised.
 
kids fightingTwo groups of kids are on the playground. The more agressive kids’ part of the playground is on their side of a line dividing the space. The other kids have their space on the other side of the line. One of the bullies comes up to the edge and says somebody on the other side really is one of them and tries to forcefully pull them over. There is no reason other than the bully wants something that isn’t his. What would happen? The other side would probably try to prevent the exchange, even if they are smaller and unlikely to win the fight. But everybody knows who started it and which side of the line the kid really belongs on. Then an adult shows up and all kinds of nonsense starts being spewed to try and muddle the issue because admitting wrong is not going to happen.
 
There is no way that an Accidental American belongs on the “American” side of the line no matter how much the U.S. whines and bellows it is so.
There is no way that anyone who chose to leave for education, marriage or employment and is living in another country in tune with the laws there, can be seen to “belong” to the U.S.
 
What are they going to do? A sort of reverse of what may happen soon in the U.S.? Where they kick out “illegal” adults and purposely separate them from their (American) children? Have everybody shipped back? They probably ARE mean enough but the fact is, that costs money. Lots of it.
 
The 14th Amendment, the 16th Amendment, Cook v Tait and all of it, belongs to those people who are on the U.S. side of the line. All the “laws” and arguments about polity and old case law just muddles the real issue. The fact of life is:
 
Everybody else has a right to be on their side of the line.
 
So everytime a condor hits you with that “It’s U.S. law” or “Until it’s changed it has to be obeyed” don’t allow them to drag you into arguing. It’s just plain dumb and so are they for thinking they can fool (or shame) you with such stupid arguments.
 
*****

Brock founder Peter Dunn/Petros says it quite eloquently. Re-blogged from the Isaac Brock Society March 31, 2015

We are living a crisis of morality in which leaders have difficulty distinguishing between what is right and wrong. Today, political leaders facing a legal obstacle to their agenda believe that all they have to do is change the law. So if the government stealing from people is illegal, all that one needs to do is change the law and call it “civil forfeiture“, and suddenly it becomes morally acceptable.

I recall reading a few years back a National Post article that brought up the question of lawmaking and morality came up.  Fortunately, Mark Steyn, cites the money quote from George Jonas:

Back in the Trudeaupian golden age, you may recall, the great man’s barnstorming transformation of Canada was momentarily halted by a storm about barns. It emerged that some overzealous officers of the Royal Canadian Mounted Police had burned down barns belonging to Quebec separatists. The press was briefly exercised over this, but M. Trudeau gave one of his famous shrugs and airily remarked that, if people were so upset by the Mounties burning down barns illegally, perhaps he’d make the burning of barns by the Mounties legal. As the great George Jonas commented:

“It seemed not to occur to him that it isn’t wrong to burn down barns because it’s illegal, but it’s illegal to burn down barns because it’s wrong. Like other statist politicians, Mr. Trudeau seemed to think his ability to set out for his country what is legal and illegal also entitled him to set out for his citizens what is right and wrong. He either didn’t see, or resented, that right and wrong are only reflected by the laws, not determined by them.

The Honourable Stephen Harper, Prime Minister of Canada, is a moral embarrassment. Before he forced the FATCA IGA into law, it was illegal for the government of Canada, based on national origin discrimination, to give the financial information of Canadian citizens to a foreign government. But it is still wrong to do so, and it doesn’t matter how many laws Harper forces through Parliament, it will remain wrong.

When law becomes a substitute for morality

When law becomes a substitute for morality

reblogged from the renounceuscitizenship wordpress blog

Today I’ve decided that I would like to go back and reblog some of the best expat posts from the last five years. For lack of a better title, I am going to call it the “A Blast From the Past Series.” This week I am going to focus on the disconnect between law and morality.

Every now and then I realize that people are still coming into awareness and that they do not realize a lot of what has gone on; how long some of us have been involved in this and most importantly, why some of us are so vehemently resistant and unyielding when it comes to evaluating the U.S. government, the tax compliance industry and so on. I guess some of us are afraid that this long period of lassitude may give a false sense of “safety.”

Without resorting to outright fearmongering, there are a number of things that may not happen (tax reform) or that will change (discontinuation of the Streamlined Program) etc. Our main reason for being involved in this from the very beginning, was to get the word out, to do our own research/take responsibility for educating ourselves and others about this hideous situation. I think it is important for people to understand how this situation has played out since the beginning……..

One of the worst aspects of everything happening today is the growing lack of morality in the world. I mean this in the “big” sense of the word; something which is on the mind of every human being as we watch America turn from being an open and welcoming society into one moving toward closed borders, over-the-top surveillance, etc. Today the Secy of Homeland Security literally said he was considering separating (illegal) parents from their (American-born) children. Unbelievably cruel and totally unnecessary. And the reinstatement of the “travel ban” which has been tweaked a bit but cannot possibly be seen for anything except what is clearly is – a move to keep Muslims out of America.

What does this have to do with us? Everything. Because when you see your government behaving like this, you are forced to evaluate two things:

1) Can YOU trust them?
2) Is there any reason to reject them/protect yourself given the unusual situation expats find themselves in?

In addition to being scared out of my mind and full of doubt whether to renounce or not (late 2011), what I could not ignore was my observation of how the U.S. was behaving outside the law. Clear, undeniable abuse of the law. Invading Pakistani airspace (I don’t care what the reason, that is not supposed to be done); the horrid abuse of prisoners at Abu Ghraib ; the assassination of Americans without due process and worst of all, holding men at Guantanamo Bay for as long as 12 years without charge, torture, etc. I did not find it difficult to believe the U.S. would think nothing of destroying our retirement by forcing me to sell my home to pay FBAR fines. It was a no-brainer.

Everyone has to come around to this decision on their own terms. All the more reason however, to take a long hard look at what has gone on over the last five years (which should influence whatever decision you choose to make).

Some of the people mentioned in this post you may not be aware of:

renounceuscitizenship – in addition to his/her own blog, one of most influential authors at the Isaac Brock Society from the beginning. Has an uncanny ability to predict long in advance, how things are going to move and a piercing, unbending analytical approach to assessing the source of our issues. Originator of the Renounce & Rejoice meme.

Steven J. Mopsick – aka “30 year IRS Vet” – a former IRS attorney who took part in a lot of the early conversations at Brock. The relationship was friendly at first and eventually disintegrated due to the natural friction between someone from a compliance point-of-view and those who did not intend to buckle under. A nice gentleman of whom was said “You can take the man out of the IRS but you cannot take the IRS out of the man.”

JustMe a much-beloved expat who suffered two-plus long years having entered the 2009 OVDP program, trying to make things right. He coined many of our expat idioms: “LCUs (Life Credit Units – how much of your life lost trying to deal with this); FATCAnatics (you can guess); CC&W (Complain, Comply & Warn-his explanation of what he was doing!),DATCA, GATCA, and so on. After he requested the help of the Taxpayer Advocate, he spent quite a long time devoting himself to our cause and taught a lot of us how to do Twitter, learn html, you name it. He finally needed to put it aside (I am sure his wife was happy about this!) and is much missed……..

Former Secretary of the Treasury Timothy F. Geitner aka “Turbo Tax Timmy” – who hadn’t paid social security or self-employment taxes on income received from the International Monetary Fund from 2001 to 2004; the IRS audited Geithner for tax years 2003 and 2004, which resulted in him paying back taxes and interest–but no penalties–totaling $16,732. Geithner voluntarily amended his 2001 and 2002 returns only after Obama expressed interest in nominating him to the Treasury post. The total bill this time: $25,970. He also failed to get proper verification for three individuals who worked for his family. As a prior Treasury employee who prior to Secy position, had run the NY Federal Reserve, one has to wonder how he could fail to understand social security or SE tax. This was infuriating to expats suffering through the OVDP/OVDI penalties. As well, former Congressman Charlie Rangel (D-NY), a sponsor of FATCA, headed the powerful House Ways and Means Committee that writes the nation’s tax laws, was censured by the House of Representatives in December for ethics violations.A chief violation included his failure to pay 17 years’ worth of taxes on rental income from the Dominican Republic property. GRRRRRRR! (still burns……..)
****************

tombstones

The following tweet appeared as a post at the Isaac Brock Society and generated a collection of comments.

To provide some context:
Steven J. Mopsick wrote a post which was a report of his experience at a recent FATCA conference. He was impressed by how the attendees were exploiting the business opportunity (inadvertently referring to them as “steakholders”) that FATCA has created for the compliance industry. Interestingly, Mr. Mopsick specifically makes the point that:

The focus of the conference was strictly on FATCA from the standpoint of complying financial institutions. Most of the participants did not even know about and individual’s duty to file FBAR’s, Foreign Asset Statements (form 8938) and there was very little talk about privacy concerns, fears about the dangers of an emerging international banking data base system, or how Canadian politicians were doing in shaking their lap dog image as pawns of the US government.

In other words: the focus was on the law of FATCA with no consideration of the morality, unintended consequences or effect on society as a whole. (Most law students would kill to have a prof like this!) To put it another way, the important consideration is the law itself. The fact of the law itself is the only issue. The values that underlie the law are irrelevant.
“Just Me” in his usual “wit and wisdom” commented that:

This is the Truism I take away from Steven: “The people around the world who stand to profit from FATCA are not thinking much about government intrusions into the private lives of the world citizens.”

“Them’s the FATCAs FACTs”, as they say.

Although, they may think it is a ‘business and growth opportunity’ others see it as a pending financial disaster for the World’s economy. Who is right? I think the latter, but we shall see. I could be wrong.

FATCA and US fiscal imperialism threaten to sink global economy

In all due respect to 30 year IRS vet, I think he may have his perspectives twisted (which comes from his background?) when he thinks that profiting off the backs of the government regulatory tit is “free enterprise/free market system at work.” Rather, it represents the worst of unprincipled and amoral aspects of human nature at work. These actions are not based upon free enterprise/free markets, but on artificial markets based upon dubious legal assertions.

Free markets do not require or accept extortion as their engine of enterprise.

I can think of other examples of so called free enterprise ~70 years ago, where other“hard-working, serious, responsible business men and women who were on their way up in their companies” were probably attending conferences on how to ramp up manufacturing and supply of cattle cars for another freight train in another era that he would not be so willing to celebrate. He would not like that comparison, and maybe it is a bit hyperbolic, but the same human nature principle is at work.

More recently, there was an army of war profiteering “hard-working, serious, responsible business men and women” contractors, attending conferences in Vegas to learn how suckling off the “free enterprise” of ‘War Contracting Gone Wild’ could benefit their companies. They didn’t want to get left out of the ‘business and growth opportunity’that an amoral and unnecessary war provided. What if the government threw a contractor party to support its misguided war effort at that time, and no one came? I blame the compliant and willing contractors co-enablers as much as the government initiators for the sad legacy we left in Iraq.

Maybe in fairness to Steven, what he is saying, is yes, human nature is responding to an artificial market that would NOT exist, except for US hubris, financial imperialism and extra-territoriality. I don’t think I would be citing the FATCA Compliance Industrial Complex’s (FCIC) “hard-working, serious, responsible business men and women” as an example of ‘supply and demand’ in action that Adam Smith would identity or praise.

Although I certainly agree that “Free markets do not require or accept extortion as their engine of enterprise”, the Mopsick post raises an even larger issue. Mr. Mopsick has and continues to make an enormous contribution to the discussion of FATCA, FBAR and U.S. tax compliance in general. Some of the best thinking on these topics may be found in the “Mopsick Trilogy” – a series of posts that he wrote about the compliance problems facing US citizens abroad. His posts are a unique blend of raising questions and answering questions. In this case, his post has raised an important issue.

The issue is that, in the America of today, laws have become a substitute for morality. A society where laws have become a substitute for morality, is a society that is past the point of “no return”. This is where “Form Nation” – AKA The United States of America – finds itself today.

“Form Nation” – A country structured by laws and not by men

In the beginning we had the ten commandments which were expressions of the fundamental principles of justice. The ten commandments reflected principles which were for the common good. Gradually legislatures began to create laws. In the early stages of society, these laws were specific applications of fundamental principles of justice and for the most part these laws continued to be for the common good.

What is in the common good is not necessarily what is good for specific individuals. Those specific individuals who control the political process have strong incentives to act in their interest at the expense of the public interest.

Once legislatures saw how easy it was to create laws, they began to create laws which were NOT for the common good but were to benefit specific individuals at the expense of the common good. That’s how the Internal Revenue Code and regs grew to 17,000 pages. It’s simply incredible. Mr. Romney pays low tax on his “carried interests” and U.S. citizens abroad pay confiscatory taxes on their mutual funds “PFICs”. Not only is this unfair, but it’s a wonderful example of how laws are passed to benefit the individual at the expense of the common good.

But, it gets far worse. Who exactly are the legislatures? Democracy in the “Form Nation” of today is controlled by two private clubs. You will recognize them as the Democratic and Republican parties. Not only are they private clubs, but they have the intellectual dishonesty to rely on public funding for their existence. Their job is to campaign and to stay in power. Why? Because they will profit from being power. Those of you who have seen the Movie Chicago will remember Mama Morton singing “reciprocity“.

If you have the money you can get the ear of a Congressman. If you don’t you can’t. If you are the mutual fund industry you can lobby to get the PFIC laws passed. If you are the Romney’s of the world (and I still believe Romney would have been a better president) you can lobby to get your “carried interest” laws passed. As Fareed Zakaria has noted, the system is corrupt at it’s core. A large part of the problem is the way the political system works in the United States. There is nobody who represents the voters. The elected representatives (and they are not really elections because of a lack of choice on the ballot) are in business for themselves. Their business is in passing laws that benefit themselves or their clients. This is the only reason that the IRC and regs grew to 17,000 pages. To put it simply: elected representatives are in the business of making laws.

It’s laws, laws and more laws!

The United States of today is burdened by so many laws that:

– everybody is in violation of some law (show me the man and I will show you the crime);

– the complexity of the laws means that people cannot even understand what they are required to do (the FBAR rules are a weird combination of the enabling statute, the regs and the form itself);

there are fewer and fewer laws where “mens rea” (the intent to commit the crime) is necessary for a conviction;

– people are forced to pay lawyers for an opinion on what they may be required to do (lawyers have become the modern day “priests”);

– the sheer volume of laws means that enforcement is largely discretionary (will the IRS enforce FBAR penalties or not?);

– the focus on laws leads to a presumption of criminality (the fact that US citizens abroad are subject to so many laws means they must be guilty of something);

– the moral foundation (if any) of the law becomes irrelevant. The original purpose of the law becomes irrelevant. All that matters is the mechanical application of the law. Nobody ever imagined that PFIC rules, Foreign Trust rules or the FBAR rules would be used to unleash a “reign of terror” on US citizens abroad. On the “Homelander Front”, do you really believe that Martha Stewart deserved incarceration? Of course, the good old USA has the highest rate of incarceration in the world.

Laws have become a replacement for morality. Laws are the only standard for morality.

If you are not in violation of the law, you are not immoral.

If you are in violation of the law you are immoral.

(If the U.S. is really concerned about the “crime rate” then maybe it should reduce the number of laws.)

Conclusion: The US does not have laws that are fair.

“Form Nation” – A country governed by those who decide when to apply the laws and in relation to whom! (A government of tyrants)

In the context of the laws, the laws are not applied equally

President Obama commented that Mr. Geithner should not be punished for a mistake commonly made. It was okay for Timothy Geithner, a man with the money to get accurate tax advice, to file inaccurate tax returns. It is NOT okay for US citizens abroad to fail to file or to file inaccurate tax returns.

Conclusion: The US does NOT have fair application of the law.

1. The United States of today is country where laws are passed by members of private clubs, which have no incentive to benefit the common good and every incentive to benefit themselves at the expense of the common good.

2. The laws are so numerous that every person in the United States is in violation of something.

3. The laws that passed carry no presumption of morality and simply have no moral force.

4. The laws (regardless of content) are enforced in an unpredictable and unfair way.

The result is that people live in terror of the government.

As Jefferson said:

When people fear the government there is tyranny. When government fears the people there is liberty.

So, what’s all this got to do with #FATCA and the Mopsick post?

FATCA is the “gift that keeps on giving” (well to the compliance industry that is). As Mr. Mopsick confirms, the concern of the industry in on the fact of the law. What does it say? What does it require? As Mr. Mopsick reports:

Many readers of this blog will be disappointed to hear this report. The people around the world who stand to profit from FATCA are not thinking much about government intrusions into the private lives of the world citizens. That is the furthest thing from their minds. These folks were all good students, in effect, knowing full-well that there was a new body of rules and regulations on the table which they needed to learn and master.

The implication is that the “good students”, those “hard-working, serious, responsible business men and women who were on their way up in their companies”, the “best and the brightest” (are they really that bright?) should be concerned with embracing the new morality, getting in tune with the “new world” caring about the implications of their conduct. That’s exactly what happens when law becomes a substitute for morality. Just Me compares this mentality to another time in history when he notes that:

I can think of other examples of so called free enterprise ~70 years ago, where other“hard-working, serious, responsible business men and women who were on their way up in their companies” were probably attending conferences on how to ramp up manufacturing and supply of cattle cars for another freight train in another era that he would not be so willing to celebrate. He would not like that comparison, and maybe it is a bit hyperbolic, but the same human nature principle is at work.

Interesting analogy. What is the purpose of FATCA? What are the moral underpinnings of FATCA? Has anybody ever asked the question? Clearly nobody in the world of the FATCA compliance industry. They would be afraid of the answer!

But, that’s what happens when law becomes a substitute for morality. Many of you are concerned about what reason to give for renouncing your U.S. citizenship.

Why not just say:

I do not wish to be a citizen of a country where law has become a substitute for fairness and morality!
 

TOMORROW : Burning Barns Down is not Wrong Because it is Illegal – It is Illegal Because it is Wrong

A Little More About Treasury’s Disallowment of SCE


Great article
by Helen Burggraf regarding Treasury’s denial of ACA’s SCE program.

Just a couple of thoughts………

US officials reportedly felt that the potential risk of expat Americans using their “same-country” bank accounts to avoid their US tax obligations was ultimately too great to be able to grant them such an exemption – in spite of the inconvenience this would result in, as it already has, for many of the estimated 8.7 million American expats across the globe.

The stupidity of this comment by Treasury officials is beyond belief. Americans abroad do not use “foreign” bank accounts as a way to avoid their U.S. tax obligations. They also are not “foreign” but their local bank down the street whereby they can cash their cheques, pay bills and so on. Obviously, accounts used in this manner are not at all the same as wealthy people living in the U.S. using foreign banks to avoid taxation. This has been stated so many times over the last five years and yet it is STILL not understood. The government continues to use this as a way to keep up several misconceptions as a way to justify FATCA:

Americans who live in the U.S use foreign banks to avoid taxation are wealthy
creates the idea that

Americans who use foreign banks to avoid taxation are wealthy
this does not equal

Americans who live outside the US are wealthy and use foreign banks to avoid taxation.

K.I.S.S., doh, it’s not rocket science to see the difference here!

The key difference, is residence. We all know 99% of all countries on this planet, base taxation upon residence.

” The regulations say nothing about the problem of lock-out. They fix only on the un-quantified and un-weighted risk that what must be a relatively small population of US taxpayers residing in a foreign country and banking at their local bank might evade US tax.
The regulations do not say whether, and, if so, to what extent, Treasury Department took into consideration the widely-admitted fact that FATCA continues to put the community of 8 million Americans overseas at risk of lock-out from access to financial accounts needed for the management of basic living expenses, [including] paying bills, paying rent [and] receiving paychecks.

The Treasury Department has very little statistical information on the diaspora. That is why they have to resort to the fishing expedition that #FATCA is. There have been so many reports, letter-writing campaigns and so on, trying to communicate the problems. So the story has been told. Yet we see no meaningful feedback from the government, indicating what percentage of money they have supposedly collected comes from Homelanders, non-resident citizens, etc. In fact, it is rather amazing that Treasury has not actually said anything different that what they have always implied: Americans living abroad are tax cheats and criminals.

While many of us do not endorse SCE, I think we all respect the efforts of any expat organization that tries to rectify this situation.
And while the future actions of the newly-elected Administration and Congress may offer some hope, we should stay focussed on the fact that many years of concerted effort have failed to solve the situation. Litigation remains a hugely valuable option and may be our best hope.

IRS Claims Statutory Authority for FATCA Agreements Where no Such Authority Exists


 

A lot of discussion has taken place recently as to what (if anything) might happen with FATCA & the IGAs given the election of Donald Trump and the positions regarding RBT etc, in the platform of the Republican Party. The nagging question seems to be that if FATCA were rescinded, the IGAs would remain, with FFI’s still on the hook. A rather bizarre situation where countries agree to something not actually rooted in law? Simply absurd and presumably, Congress would take steps (or be reminded to do so) to put the whole business to rest.

Then there is general discussion that includes the reversal of President Obama’s executive agreements. With this we would still have FATCA but no implementing IGAs. Should FFI’s pass private banking information directly to the IRS sans the IGAs, they would be in violation of the privacy laws of many countries. With (more) lawsuits certain to follow.

All of this brings to mind another nagging question, and that is, just exactly what are the IGA’s? The Canadian government claimed ithe IGA was a Treaty, and accepted it as such. The U.S. did not have it ratified by 2/3 of the Senate which is normal procedure there. Professor Allison Christians has long indicated they are actually sole executive agreements with “dubious legal status.” Other interesting perspectives are offered here.

Of course, the original overall objection to the IGA’s is that they are hardly agreements; they are documents where the U.S. inflicts its will on all 192 countries of the world; incurs no cost for doing so and while mitigated, the 30% withholding remains.

It may be very useful to review all that is involved in Professor Christians’ viewpoint so that any future action ensures complete finality to these abominable and odious “agreements.”

*******

This appeared at the Isaac Brock Society on July 4, 2014 and was cross-posted with permission from Prof. Christians’ blog

I saw the letter referenced below on Jack Townsend’s site and included Professor Christians in a tweet questioning the validity of the IRS’arguments regarding IGA’s. I am delighted to see she has taken this further and posted the following today on her blog.

 
allison_christians_2012_150x225

Over at federal tax crimes blog Jack Townsend has posted a letter from the IRS to Congressman Bill Posey, in response to an inquiry the Congressman apparently made about the intergovernmental agreements (“IGAs”) to implement FATCA by other governments (instead of directly by foreign financial institutions, per the law Congress enacted in 2010). Treasury says:

“Your letter also asks about statutory authority to enter into and implement the IGAs. The United States relies, among other things, on the following authorities to enter into and implement the IGAs: 22 USC Section 2656; Internal Revenue Code Sections 1471, 1474(f), 6011, and 6103(k)(4) and Subtitle F, Chapter 61, Subchapter A, Part III, Subpart B (Information Concerning Transactions with Other Persons).”

None of these sources of law contain any authorization to enter into or implement the IGAs. It is patently clear that no such authorization has been made by Congress, and that the IGAs are sole executive agreements entered into by the executive branch on its own under its “plenary executive authority”. As such the agreements are constitutionally suspect because they do not accord with the delineated treaty power set forth in Article II. As Michael Ramsey wrote in a 1998 article, the danger is that if the president seeks to reach agreements outside of his plenary constitutional powers, the agreement lacks domestic legal effect.

Just to be clear, the fact that a document signed by an individual might or might not bind the United States as a matter of constitutional law does not mean that the United States will not honor whatever commitments the individual makes under such an agreement. The contrary is likely the case especially given the predicament Treasury found itself in, coupled with the pitiable small promises undertaken by the US in these “agreements.”

But we should be clear that the analytical terrain we should be traversing is whether the scope of the plenary executive authority can suffice to support as a matter of law the promises made in some 80 or so IGAs (many of which are currently agreements in principle only). We should not be wasting anyone’s time pretending that Congress has authorized Treasury or the Secretary of State to enter into the IGAs. It has not.

So let’s take a look at what these sources actually say.

22 USC 2656 is about the power of the secretary of state. It says:

The Secretary of State shall perform such duties as shall from time to time be enjoined on or intrusted to him by the President relative to correspondences, commissions, or instructions to or with public ministers or consuls from the United States, or to negotiations with public ministers from foreign states or princes, or to memorials or other applications from foreign public ministers or other foreigners, or to such other matters respecting foreign affairs as the President of the United States shall assign to the Department, and he shall conduct the business of the Department in such manner as the President shall direct.
If that is an authorization for the IGAs, it is a vague one at best. Does an IGA constitute “correspondences, commissions, or instructions,” “negotiations”, “memorials or other applications,” or “such other matters respecting foreign affairs”? Under what interpretation of such relevant provisions? Also there is nothing here about the content or scope of the treaty power hereby implicitly authorized. Is IRS saying that with this power the Secretary of State can bind the nation at will on any matter, without the need for the President to seek advice and consent from the Senate prior to ratification? If so this is an extraordinary claim that does not scan with either historical practice or constitutional theory.

26 U.S. Code § 1471 is, of course, part of FATCA. It is entitled “Withholdable payments to foreign financial institutions”. It sets out the reporting obligations imposed on foreign financial institutions and states that the Secretary is authorized to treat a foreign financial institution as “meeting the requirements” of 1471 if the institutions complies with procedures or requirements set forth by the Secretary or is “a member of a class of institutions” identified by the Secretary.

There is explicit authorization in 1471 for the Secretary to engage in agreements with FFIs to implement FATCA. However where is the authorization in 1471 for the Secretary to engage in agreements with other countries to implement FATCA? It is not in the text, certainly.

Therefore to what specific provision of 1471 could IRS possibly refer when it suggests this statute authorizes individuals to sign agreements altering the reach of FATCA on behalf of the United States? There is clearly no explicit authority. Is it implied? If so, by what?

Moreover, many or most of the IGAs have been signed by officers of the Secretary of State, ambassadors, consulates general and others, and not by Treasury. Does s1471 also impliedly delegate its implied treaty power authority to those outside of Treasury who have signed on behalf of the United States? Certainly there is no explicit delegation here.

26 U.S. Code §1474(f), also part of FATCA, is the statutory authorization for the Secretary of the Treasury to
“prescribe such regulations or other guidance as may be necessary or appropriate to carry out the purposes of, and prevent the avoidance of, this chapter.”
There is no authority expressed in this provision for the Secretary to enter into agreements with other governments. Does IRS suggest that an IGA constitutes “regulations” or “other guidance”? Under what interpretation of that characterization does the Treasury interpret the promulgation of either regulations or other guidance as an authorization to negotiate an agreement with a foreign government?

26 U.S. Code § 6011 is entitled “General requirement of return, statement, or list,” and it states the parameters under which a person must make a return “[w]hen required by regulations prescribed by the Secretary.” There is authorization in 6011 for the Secretary to require taxpayers to fulfill various reporting requirements, including electronic reporting. There is no authorization in 6011 for the Secretary to engage in agreements with other countries to implement 6011.

What provision of 6011 is IRS suggesting confers the authority to negotiate agreements with other governments without Senate advice and consent? Does IRS mean to imply that each and every authorization that Congress gives Treasury for the prescription of regulations is an implicit authorization for Treasury (or its implied designees in other departments) to conclude agreements with other governments? If so, this is a surprising claim of executive power that is inconsistent with the treaty power described in Article II of the constitution. I would think Congress would like to know under what interpretation of Congressional direction to the Secretary to issue guidance, IRS or Treasury would conclude that it now holds the power to make treaties on behalf of the United States.

In other words, if IRS stands by this authorization it is suggesting that any tax code section that authorizes Treasury to regulate implicitly contains both a treaty making power as well as the power to delegate authority to departments other than that specifically charged with implementing the statute. That is not a plausible claim.

26 U.S. Code § 6103 is entitled “Confidentiality and disclosure of returns and return information” and it provides that “returns and return information shall be confidential,” with exceptions provided by statute. There is authorization in 6103 for the Secretary to engage in agreements with taxpayers to implement 6103 (for example in the case of advance pricing agreements). There is no authorization in 6103 for the Secretary to engage in agreements with other countries to implement 6103. Therefore, as with 1471 and 6011, to what specific provision of 6103 does IRS refer, and under what interpretation of the authority given by Congress in 6103 to enter into agreements with taxpayers does IRS find the authority for anyone to enter into agreements with other countries?

26 U.S. Code Part III, Subpart B is entitled “Information Concerning Transactions With Other Persons” and it contains 26 US Code §§ 6041 through 6050W—a very broad set of statutes involving information reporting, none of which explicitly grant anyone the power to bind the nation to anything. Certainly nowhere in the subpart appears any express authorization for Treasury to enter into agreements with other governments in respect of s1471 or otherwise. Therefore the same questions I have raised with respect to 1471, 1474, 6011, and 6103 would seem to arise here.

In short I see no express authorization anywhere in any of these authorities for the Treasury to enter into the intergovernmental agreements. Moreover there is no precedent for such agreements, and they are being signed by US officials who are not members of the Treasury. Does it not seem at least noteworthy that an enormous network of bilateral tax agreements has been established, a network that dwarfs the existing tax treaty network in size and scope, all without any explicit Congressional authorization, and without any regard to the Treaty power clearly laid out in Article II of the Constitution?

And why not cite the TIEA power?

I would add that is not at all clear why any list of authorizations for an individual to enter into agreements with other governments on behalf of the United States would not include 26 US Code § 274(h)(6)(C)(f), which has long been relied upon to by Treasury to find the authority to enter into tax information exchange agreements (“TIEAs”) that were not expressly authorized by the statute (because they are not listed in Section 274 as beneficiary Caribbean Basin countries). This statute has clearly been abused by Treasury in extending it way beyond what Congress intended. However, the fact that Congress has not complained suggests that it has acquiesced to the overreach.

That makes the TIEAs good precedent for those who want to defend the IGAs as a matter of law. In omitting this, the only plausible source of support for the authority to bind the nation without the advice and consent of Senate, does IRS suggest that Treasury now backs away from this authority? If so, why would they do that? The answer is of course that IRS believes that if necessary the TIEAs can also be considered sole executive agreements, and as such a TIEA “does not need Senate or other congressional approval.” This is an official claim that the IRS doesn’t think Treasury or anyone needs even s.274 as a cover: the executive can simply act alone to achieve its tax goals through international agreements.

At the end of the day, it is clear that Treasury saw a real and serious need to work with other governments to make FATCA work. There is no disputing that fact, and indeed it is a step toward multilateral cooperation which should be celebrated if only it weren’t so lopsided, and if only it weren’t being accomplished via the threat of economic sanctions for all the world’s tax havens except the United States itself. But no amount of need or want can sidestep the constitutional delegation of powers among the branches, and the treaty power is no exception: nor should it be. At least one Treasury official has already conceded that the explanation for the IGAs is that they are “executive agreements”, not Article II treaties.

IRS and Treasury should therefore just admit that the IGAs are simply “sole” executive agreements—not authorized by Congress but entered into by the executive branch under its sole discretion.

This is a tenuous position and it ought to fail constitutional scrutiny but for the fact that in the past, Congress has acquiesced to this exercise of power by the executive and it is likely to do so again, especially given how little has been undertaken by the United States in these IGAs. As Lee Sheppard pointed out in a Tax Notes article two years ago, “An executive agreement depends on the good will of the parties to enforce it.” And as Susie Morse also pointed out in Tax Notes last year, Treasury is very likely to try to enforce their part of the IGAs.

Since the US side of the IGAs is to deliver very modest undertakings that Treasury also believes can be done without congressional approval (namely, extending the longstanding s. 6049-based information exchange with Canada to other countries), this is probably true; all IGA promises to alter the law in the future should be seen as what they are, unenforceable promises that are beyond Treasury’s control and so won’t be delivered.

Therefore honesty is still the best policy for Treasury. Instead of citing non-existent statutory authority that is easily refuted by simple reading, Treasury should own what it is doing outright. These are sole executive agreements, they lack statutory approval, they undertake very little on the part of the United States, but they are an effective way of pretending to be cooperative so that other countries can save face as they submit to the threat of economic sanctions that is FATCA. There isn’t really any reason why Treasury shouldn’t acknowledge this reality, since it is, strictly speaking, of Congress’ own making.
Posted by Allison Christians at 8:34 PM