337 thoughts on “Federal Register undercounts people giving up U.S. citizenship again: 1,158 published expatriates for Q1 2016”

1. @Ginny, just some ramblings…….

   I can see the thinking of Arvey in the description of desired witnesses, he is focusing like a laser and its clear he is looking for people that “do not consent to any imposed foreign citizenship.”

   A sad part of this is that permanent residents “appear” to be thrown along the side of the road. I can only hope that they can see the logic in going after the greatest and easiest to break weakness in order to toss the whole thing out.

   On these boards there have been some grumblings about both Bopp and Arvey. I did not financially support the Bopp lawsuit instead focusing on ADCS, regardless Bopp or any lawyer that wins a supreme court case is a superb and unique craftsmen.

   Early on, I made it known that I did not care for Arveys political leanings but supported ADCS because they found a great lawyer. So it rips me when I hear folks complain about Bopp because he supports this or he did that. Do you remember “All in the Family” from the 1970s? I remember one episode where Archie needed surgery and the surgeon was a black man. That episode stuck with me for the rest of my life. When you NEED a certain doctor or lawyer or______, you want the best you can get irregardless of any other characteristic. Arvey is superb and so is Bopp, they have both proven this in Court.

   I know here at IBS we say between “is this a tax problem or is it a citizenship problem.” I am back to, its a citizenship problem and the right of a nation to define who in its borders are its own. I think Trudeau Sr, Ronald Reagan and Margaret Thatcher would have all agreed with that.

   Many moons ago in another life, the USG warned me that if I went to a certain soviet sphere place, said country would claim me as its own. I was OK with that and made sure I never went there or flew over/near it.

   Cheers,

2. @Ami, your Boris and Obama description are spot on. Rightly I was always repulsed when Obama was referred to as Kenyan. Your phrase on Boris is powerful.

   Let me give you something from our Citizens Advice in the UK. They give examples of indirect discrimination which is unlawful;
   —
   https://www.citizensadvice.org.uk/discrimination/what-are-the-different-types-of-discrimination/indirect-discrimination/

   Example

   A health club only accepts customers who are on the electoral register. This applies to all customers in the same way. But Gypsies and Travellers are less likely to be on the electoral register and therefore they’ll find it more difficult to join.

   This could be indirect discrimination against Gypsies and Travellers because of the protected characteristic of race. The rule seems fair, but it has a worse effect on this particular group of people.
   ____

   How is having to fill out a slew of extra paper work that your peers do not have to fill out being equal under the law? Ergo, I have taken the stand that if FATCA IGA stands then any discrimination that someone wants to apply is OK.

   I find it “amusing” that our politicians were all hung up on if a bakery in Northern Ireland could discriminate against providing a same sex wedding cake at the same time FATCA IGA is OK.

   Oh you may have missed a note to Haydon…….

   I very recently did the following which I will be giving to my MP.

   I got a copy of a high street bank employment application. The application does not ask for place of birth BECAUSE that is unlawful!!

   But I paired that up with a current acocunt application which requires place of birth.

   So it is forbidden to ask place of birth to work in a bank but to deposit your pay packet, you must disclose the place of birth.

   Is that not hypocricy?

3. “Rightly I was always repulsed when Obama was referred to as Kenyan.”

   Kenya made it so, for a while.

   http://isaacbrocksociety.ca/2012/06/06/the-accidental-kenyan-what-would-happen-if-the-african-nation-copied-u-s-tax-policy/

4. @Haydon requoting @Ami “People working on FATCA and CRS don’t think of this as a “hunt”, we don’t, for the most part, aim to harm Americans in any way, just to get a W-9 and report to the US as the regulation demands.”

   Some here may disagree but I think you have learned a few things and for that I/we are thankful.

   First, many of those that are targeted are NOT “Americans with Leave to Remain” abiding in the UK, they are actually British Citizens that look like you, have the same accent, lived their entire life in the UK, pay taxes in the UK and have only the most tenuous connection to the USA.

   Second, the UK/US FATCA IGA based on the day to day definition of discrimination in 21st century British Society, has a very bad smell to it and you smell the stench.

   Third, when that account information is “turned over” that your very countrymen are facing the most extreme form of punishment from a foreign power. You did not know that in 2010 but today you do….

   I think you know the above clearly today but WE have failed because you are one of the few process guys (you are a process guy 🙂 ) that might know this. MPs largely do not know this, we have failed in that as well. But your statement that Ami requotes is true, compliance guys do not know the human side of all this and are likely thinking its a bunch of American Ex-Pats with Limited Leave to Remain who all live in the southeast.

   You have shown us;

   Fish are friends….no that was Finding Nemo…..compliance guys are human too thats what I mean.

   Even though we may not like the process, guys like you are the best we are going to get and we need to be thankful for men like you that listen and do care. You have a heart like an onion (yes thats a compliment).

   Rightfully and thankfully, you have reinforced that there is another bite at the apple in 2016 and that CRS is indeed the enemy of the enemy.

   US FATCA as it exists like all discrimination will not stand the test of time and it too shall fall. When it does fall in its current form you will not be singing its praises and holding the pillar up. I suspect you will be kicking the foundation morter from the base of the pillar.

   Cheers,
   George S.

5. @George. Absolutely!

6. Thanks so much for this conversation, George and Haydon Perryman. Ami Wright, you are indeed right — there needs to be a change in the terminology, our description, as most of us are indeed citizens of other countries with only tenuous ties to the US – like the relatives we have that are sole citizens and resident in the US and, if so, we wish not to be cut off from them because of the consequences to us of US citizenship-based taxation law.

   We are, as our other-country government representatives and our local banks where we conduct our financial business as any other of our countrymen do not make / have not made the important distinction. To not do so is discriminatory by our national origin or the national origin of our parent(s) (or anyone we marry or enter into business partnerships with). Our description IS or should be only …

   ‘US persons for tax purposes’ rather than Americans,

   a distinction that must be made. If there is a problem with me or any member of my family, I want that dealt with by due process, not discriminate criminalization through identification of my US national origin and turn-over of my or my family’s private financial information so we may be contacted by, to my mind, a foreign country, the USA.

   …and most, if like me, resent being described by our own countries’ governments as ‘Americans who abide in Canada’ (or the UK or any other country outside the boundaries of the USA) as we have duly made our choices and taken the steps to become citizens with allegiance who live, work, raise families in, pay taxes to the country from whom we receive our benefits and are contributing members of our societies, which are other countries for us, not the USA. We reject that US CBT makes us chattel for any, now, tenuous US taint.

7. Haydon Perryman said:

   “People working on FATCA and CRS don’t think of this as a “hunt”, we don’t, for the most part, aim to harm Americans in any way, just to get a W-9 and report to the US as the regulation demands.”

   Mr Perryman, I am a UK-only citizen with a US place of birth, and have been following this discussion with great interest.

   I wonder whether you might be able to answer a question for me. I get that the UK IGA is intended to allow UK banks to comply with FATCA regulations without breaking UK law. With regard to data protection, this is accomplished by having the banks send the data to HMRC rather than directly to the IRS.

   But there is another way in which the FATCA regulations as they stand seem to violate the legal rights of a UK citizen. Because I have a US place of birth, I can’t open a bank account without being required to sign a US tax form under penalty of perjury – even though I’m not a US citizen and have the CLN to prove it.

   HMRC have clearly clocked that this is dodgy ground, and have not tried to protect the banks from the possibility that refusing an account to a non-US person who won’t sign an IRS form, could lead to legal action. Do you know (or are you able to comment) on whether your employer has sought legal advice on this point? I would very much appreciate any insight you may be able to offer.

8. Haydon Perryman said:

   “Whilst PoB is not indicia under the CRS, it is asked for and it is reported.”

   The UK Guidance seems to say place of birth is only reportable under DAC under particular circumstances (which don’t, for example, apply in my own case). I hope I haven’t misunderstood?

   AEIM102180 REPORTABLE INFORMATION: PLACE AND DATE OF BIRTH

   Place of Birth

   The place of birth to be reported is the town or city and the country of birth of the Account Holder.

   The requirement to report place of birth is subject to the condition at Annex I Section I Paragraph E of the DAC. This makes place of birth a reportable item only where the Reporting Financial Institution is required to obtain and report it either under UK domestic law or under a European Union legal instrument in effect or that was in effect on 5 January 2015 being the date that the DAC came into force for automatic exchange of financial account information.

   In effect this will only apply where the Reporting Financial Institution is currently reporting place of birth information to HMRC under the EU Savings Directive (EUSD). Any Reporting Financial Institution that has no obligations under the EUSD is not required to report place of birth.
   Where the Reporting Financial Institution is in scope for EUSD reporting there is a further condition that has to be met before the place of birth is reportable under the DAC. Place of birth only needs reporting if it is available in the electronically searchable data maintained by the Reporting Financial Institution.

   The reference to an EU legal instrument ‘that was in effect on 5 January 2015’ is a recognition of the expectation that the EUSD will be repealed as the requirements of that Directive have been overtaken by the DAC. This was settled by the Council of Europe when the DAC was agreed but the process for repeal has yet to be concluded.

   What this means is that where place of birth information has been captured in the electronic data systems of the reporting Financial Institution for EUSD purposes that information must be retained and reported under the DAC even after the EUSD has been repealed. Our interpretation of the DAC is that the provisions in Annex 1 E do not have the effect of placing a continuing requirement, after the repeal of the EUSD, to collect and report place of birth for new accounts, on those Financial Institutions currently required to do so by the EUSD.

   Some Financial Institutions obtain place of birth information as part of their security protocols, for example, as personal information about the Account Holder that can be used for verifying their identity should they contact the Financial Institution by telephone or on-line. As this information has not been obtained for any domestic or EU regulatory purposes the Reporting Financial Institution should not report place of birth from this information.

   As only Reporting Financial Institutions in scope for EUSD are able to report place of birth under the DAC, any processes that they currently apply to separate place of birth information collected for EUSD reporting purpose from that collected for other non-regulatory reasons should be maintained for DAC reporting.

9. If the UK and Canada are going to cede sovereignty, and let a foreign nation – the US, define who of their citizens and residents it claims the right to extraterritorially tax and extraterritorially force to register for the US armed forces, then, congruent with the vein of Obama being very nearly deemed officially a taxable Kenyan residing in the US – merely due to Kenyan parentage or very nearly an Indonesian taxable person ( http://isaacbrocksociety.ca/2012/06/06/the-accidental-kenyan-what-would-happen-if-the-african-nation-copied-u-s-tax-policy/ http://isaacbrocksociety.ca/2012/01/21/what-if/ ) and Boris Johnson being deemed an American residing in the UK rather than a British citizen (solely due to a US birthplace http://www.economist.com/news/united-states/21644160-mayor-london-renounces-his-american-citizenship-englishmans-home );

   Better not have any of the Royals marry any of those pesky US born or of US parentage who could infect the Royal family with the US disease ( https://en.wikipedia.org/wiki/Queen_Noor_of_Jordan https://en.wikipedia.org/wiki/Grace_Kelly https://en.wikipedia.org/wiki/Wallis_Simpson ) for fear of producing little royal UStaxablepersons with lots and lots of ‘foreign’ assets that the US can try to lay claim to. Much safer to marry anyone else – maybe stick to Canadians because we don’t have birthplace/parentage based taxation ( http://www.cbc.ca/news/world/who-s-the-canadian-marrying-into-the-royal-family-1.753526 ).

   If British citizens living in the UK are to be defined by the laws of the countries of their ancestry, perhaps t at some point, the UK and other Commonwealth countries like Canada should consider whether they have actually been swearing fealty to Germans, Spaniards and French individuals when recognizing “British” monarchs.
   https://en.wikipedia.org/wiki/House_of_Windsor
   https://en.wikipedia.org/wiki/British_monarchs'_family_tree#House_of_Windsor_.28formerly_Saxe-Coburg_and_Gotha.29 . The royal families of Europe are very much related to each other:
   https://en.wikipedia.org/wiki/Royal_intermarriage

10. @Ginny re: “@ WhiteKat
    You have written some of the best posts on this issue lately in this particular Heydon thread. At one point he said he hadn’t thought of something ‘ that way’. There may be hope. ”

    Thanks Ginny. I try.

11. @iota. Given that fact pattern, UK law requires a Self Certification so a legal opinion wouldn’t be necessary.

    Legally it is sound. Morally – well, I will leave that to others.

    For good or ill, in the UK, we have accepted the US’s extra territorial reach when it comes to claiming people as American Citizens.

    I don’t think anyone ever questioned it.

    In any event, right or wrong, UK law allows this, more accurately, requires this.

12. @iota. PoB. It depends on the fact pattern. DAC2 is the EU adaptation of the CRS and it also repeals the EUSD.

    So if you FI was collecting PoB under the EUSD, that they will continue.

    This depends on your FI.

    You have not misunderstood and I salute you for your reading.

    Though it is unlikely that PoB will be required.

    Whether you bank will appreciate this distinction is also a consideration.

    For the wider audience – this answer is only for FIs that are in the EU 28 member states.

13. @Haydon Perryman – the UK IGA does not require a self-certification to include the signing of an IRS form by a person who’s not a US citizen.

    “In any event, right or wrong, UK law allows this, more accurately, requires this.”

    Citation?

14. @iota. You are 100% correct. The UK Inter Governmental Agreement, more accurately the associated legal instrument absolutely does not REQUIRE an American W series form.

    It does ALLOW it.

    Again, I salute your reading.

    No one can force a W series form on you in the UK. If that happens please let me know.

15. @iota you are required to fill out A self Cert though. You also are NOT required to sign under penalties of perjury.

16. @Haydon – Thanks for the confirmation.

17. @iota Let me know how it goes. Many “experts” who don’t know FATCA from DOGMA will tell you I’m wrong, it can be intimidating. Again, let me know. Also I can get direct you to non US self Certs that are industry standard and free.

18. Does it look something like this, Haydon?

    https://www.td.com/document/PDF/SCI-W8%20Self%20Certification%20of%20Non-US%20Status%20-%20Individuals%20English.pdf

19. @Bubblebustin @iota

    They are here:
    https://www.oecd.org/tax/automatic-exchange/crs-implementation-and-assistance/

    Under – SAMPLE SELF-CERTIFICATION FORMS

    These can be and are being used for IGA FATCA, UK CDOT and the CRS.

20. @Haydon – thanks but in my view it’s the FIs’ problem, not mine. In this situation, they’re the ones who are being intimidated by America, not me.

21. @iota Quite right – so long as you fill in *a* self cert.

22. The US gets a pass from the OECD (or gives itself one since it dominates the OECD) and gets to stand alone with special status in a helpful footnote (1) from the OECD, and doesn’t get listed with those who have or haven’t agreed to implement the CRS;
    https://www.oecd.org/tax/transparency/AEOI-commitments.pdf

    As at 14 April 2016
    AEOI: STATUS OF COMMITMENTS
    (98 jurisdictions have committed)
    The table below summarises the intended implementation timelines of the new standard.1
    ……….

    footnote (1)

    As at 14 April 2016
    ‘AEOI: STATUS OF COMMITMENTS’
    “(98 jurisdictions have committed)”

    “The table below summarises the intended implementation timelines of the new standard.1”

    ……………….
    ……………….

    1
    “The United States has indicated that it is undertaking automatic information exchanges pursuant to FATCA from 2015 and has entered into intergovernmental agreements (IGAs) with other jurisdictions to do so. The Model 1A IGAs entered into by the United States acknowledge the need for the United States to achieve equivalent levels of reciprocal automatic information exchange with partner jurisdictions. They also include a political commitment to pursue the adoption of regulations and to advocate and support relevant legislation to achieve such equivalent levels of reciprocal automatic exchange.”

23. @badger https://haydonperryman.com/?s=Elephant&submit=Search

24. @Haydon…let me step away from the philosophical side of things and since you are still hanging around, I have a technical question.

    It has bothered me to no end that there is a wide path where some UK FI’s ask place of birth and others do not. There is no rhyme or reason as I have seen a lowly credit union demand place of birth and a very large billion plus assets FI not ask.

    Form the UK guidance referenced by @IOTA; “Our interpretation of the DAC is that the provisions in Annex 1 E do not have the effect of placing a continuing requirement, after the repeal of the EUSD, to collect and report place of birth for new accounts, on those Financial Institutions currently required to do so by the EUSD.”

    So if I am reading this correctly, there is no obligation of any FI in the UK to collect place of birth..yes?

    And to the extent that place of birth is being asked, it is solely based on an internal FI policy for “security” per the UK guidance?

    Part of my inquiry is that you may remember Lloyds was sued by some “Iranians” who had accounts closed and a Lloyds spokesperson came out and stated that they do NOT collect information relating to place of origin.

    Thanks,

25. @Haydon,
    Further to the obvious lack of real ‘reciprocity’ by the US re the Model 1 IGAs:
    As you said;
    http://isaacbrocksociety.ca/2016/05/04/federal-register-undercounts-people-giving-up-us-citizenship-again/comment-page-6/#comment-7533931
    “One thing that can be done about the IGAs:
    They only last until the end of this year and then good faith negotiations begin. A key consideration, explicit in the agreements, is the degree to which the US has reciprocated.

    You could act now to make sure your politicians look into this before extending the Inter Governmental Agreement. If this is rushed the US will win an extension because they do yield some data but nothing like the level of data they receive.

    It’s asymmetric reciprocity at best.

    If we all go silent on this the Inter Governmental Agreements will get extended. That may happen anyway but there are things that can be done to get our political leaders to open their eyes.”

    Now we have some new questions arising in our Parliament, raised by NDP MP Dusseault;

    Q-1072 — April 18, 2016 — Mr. Dusseault (Sherbrooke)
    See particularly from (n) on:
    ……………”(n) how many records did Canada receive from the US, in total and broken down by (i) individuals who live in Canada, (ii) individuals who live in the US, (iii) individuals who live in other countries, broken down by country; (o) how many accounts did Canada receive information about; (p) what type of information was in the records Canada received; (q) did Canada receive information regarding (i) income from the accounts, (ii) total assets in accounts, (iii) account balances, (iv) transactions, deposits and withdrawals, (v) account numbers, (vi) names of account holders, (vii) Social Insurance Numbers, (viii) other related information; (r) what type of information did Canada receive that was not provided by the US prior to the FATCA Intergovernmental Agreement; and (s) when did Canada receive the information?”

    from:
    Publications – May 10, 2016 (Previous)
    Order Paper and Notice Paper | Projected Order of Business

    Tuesday, May 10, 2016 (No. 52)
    Questions
    http://www.parl.gc.ca/HousePublications/Publication.aspx?Pub=NoticeOrder&File=9
    Q-1072 — April 18, 2016 — Mr. Dusseault (Sherbrooke) — With regard to the exchange of information between Canada and the United States (US) under the Foreign Account Tax Compliance Act (FATCA): (a) how many individuals were reported, in total and broken down by (i) Canadian citizens, (ii) permanent residents of Canada, (iii) temporary residents of Canada; (b) how many individuals were reported, broken down by (i) individuals with Canadian addresses, (ii) individuals with US addresses, (iii) individuals with addresses in other countries; (c) how many accounts were reported, in total and broken down by (i) bank accounts, (ii) credit union accounts, (iii) investment accounts, (iv) insurance accounts, (v) other types of accounts; (d) with respect to (c)(iii), what types of insurance accounts were reported; (e) with respect to (c)(v), what other types of accounts were reported; (f) of the accounts reported, how many were (i) under $50,000 US, (ii) between $50,000 and $1,000,000 US, (iii) over $1,000,000 US; (g) of the accounts reported, how many were (i) Registered Retirement Savings Account accounts, (ii) Registered Education Savings Account accounts, (iii) Registered Disability Savings Account accounts, (iv) Tax Free Savings Account accounts; (h) of the accounts reported, how many were held jointly with one or more non US persons, broken down by type of account and indicating the type of relationship between the joint account holder and the US person, if it is known; (i) how many accounts of organizations were reported to the IRS because a US person had signing authority, interest in, or other connection to the organization; (j) of the accounts that were reported, how many were (i) business accounts, (ii) professional accounts, (iii) charitable or non-profit organization accounts, (iv) connected to other organizations, broken down by type of organization; (k) what agency, organization, and individuals was the information provided to; (l) what measures were taken to ensure this information will not be provided to any other agency, organization, and individuals; (m) what measures were taken to ensure that information transmitted will not be subject to identity theft, fraud, other criminal activities, or breach of privacy; (n) how many records did Canada receive from the US, in total and broken down by (i) individuals who live in Canada, (ii) individuals who live in the US, (iii) individuals who live in other countries, broken down by country; (o) how many accounts did Canada receive information about; (p) what type of information was in the records Canada received; (q) did Canada receive information regarding (i) income from the accounts, (ii) total assets in accounts, (iii) account balances, (iv) transactions, deposits and withdrawals, (v) account numbers, (vi) names of account holders, (vii) Social Insurance Numbers, (viii) other related information; (r) what type of information did Canada receive that was not provided by the US prior to the FATCA Intergovernmental Agreement; and (s) when did Canada receive the information?
    http://www.parl.gc.ca/HousePublications/Publication.aspx?Pub=NoticeOrder&File=9