FATCA and Australia – Part 1 of 2

1,187 thoughts on “FATCA and Australia – Part 1 of 2”

1. @All

   Hopefully we can educate as many people as possible about FATCA and the OECD model and the potential problems.

2. @au

   The Usa has not signed on go the mutual collection at all and concedes to do so requires Senate ok

3. Just got this Interesting

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4. Canadian – Australian connection, Harper turns to a wizard from Oz:

   Macleans, “Australian campaign whiz Lynton Crosby is coming to Canada to help the Conservatives”

5. @All While I have not posted my draft letter to MPs, I certainly am thinking about it. Perhaps it may be best if we may in words depict what is illustrated in weight loss schemes and how they advertise: the before, and the after. Except in our case the after or contrast is Australian with US personhood, and the better view the Australian without US personhood. Could it be a table with two columns, on left (one of several examples) Australians (without US personhood) may fully enjoy Australian government policy in regards to superannuation. On right super treated as “unqualified pension fund” attracting US double taxation. ?

   I like seeking an Australian Parliamentary Inquiry into injustices yet the thinking leads to sparking a US Congress Investigation. One might think an investigation might be more palatable then actually changing any legislation. Those Congressional Committees are very busy. That is a challenge to get their attention. Yet perhaps, we may get one to help fund an outside investigation (hopefully not farmed out to the Democratic Party). Perhaps this route may appeal to Republicans Overseas who as part of their plan of assistance, and as carry through with their inserting into the Republican Party Platform the repeal of FATCA and repeal of extraterritorial aspects of CBT; they need to educate legislators better to help get it all passed should they in future be in position to do so. A study on the injustices may help.

   In Congress we have the Democrat dominated Americans Abroad Caucus. They are “pushing” this:
   Commission on Americans Living Abroad Act (H.R.597) to ensure review of issues specific to Americans living outside the US. The terms of reference are what I would call “within the beltway” and fairly much oblivious to the policy discrimination and unfair aspects of double taxation. Part of that H.R. 597 is to fund a study. How then to take over terms of reference to include – open study of discriminatory aspects of US policy on US persons living overseas – and get it passed. Unfortunately, I think as the Republicans only have 4 of some 22 odd members on that caucus, that because of its current incarnation that the caucus will be useless to us. I’ll try to get some feedback from Solomon Yue in the next week.

6. In terms of an Inquiry in Australia. An advantage is that no party is so oriented against US persons overseas (as the Democrats are). So if we may get it going, then it could include some real “impartiality.” Of course there is always the resistance to change anything which is perhaps the greatest hurdle.

7. Here’s a bit o’ hypocrisy for you:

   Schumer-Portman corporate tax giveaway!

   Fresh off of advocating for war with Iran, Democratic Sen. Chuck Schumer is teaming up with Republican Rob Portman to give a massive handout to multinational corporations.

   Multinational corporations owe nearly $770 billion in taxes on nearly $2.2 trillion that they have been hiding offshore. Sens. Schumer and Portman have a proposal to let companies bring back that money at a much lower tax rate – and then, going even further by lowering the tax rate on all future income earned overseas.2

   http://act.credoaction.com/sign/Schumer_Portman_corporate_tax?nosig=1&t=1&akid=15572.8396399.2dKAl8

8. Care to join

   https://www.facebook.com/AmbassadorBerry

   Please address online US/ AU dual forum concerns http://isaacbrocksociety.ca/fatca-and-australia/comment-page-1/

9. AND https://twitter.com/USAembassyinOZ?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor

10. Expatriates choosing to leave the U.S. rather than pay taxes

    http://www.cnbc.com/2015/09/11/expatriates-choosing-to-leave-the-us-rather-than-pay-taxes.html

11. Just watched a programmer “The Italian Americans” showing how the Italians ( I am one) were discriminated against during the war because they had links to that foreign country.
    They were loyal to America (as many grave sites with last names spotted with vowels would attest)
    The US Attorney later apologized.
    Just saying

12. Might be useful to review earlier discussions of what Australian banks said about FATCA and the fact that for a number of reasons, the likelihood of FATCA in Australia turning up actual UStax evaders is very small:
    http://fatca.thomsonreuters.com/wp-content/uploads/2012/09/APAC-The-future-is-FATCA-Australian-banks-get-ready-for-U.S.-regulatory-burden1.pdf

    Potentially useful quote:
    “……… Burke [ Tony Burke, policy director at the ABA in Sydney ] said that there were far simpler ways of providing the required information required by FATCA to the IRS — for instance, by using existing
    information channels. Burke said: “Australian banks already provide the bulk of information on resident and non-resident customers that is required by FATCA to the Australian Tax Office (ATO) in
    their Annual Investment Income Reports. At the same time, there are extensive tax
    treaties and information exchange mechanisms in place between the ATO and the IRS.
    What we are saying is rather than inventing something new, why don’t we just use those
    existing channels?”

    “Burke also questioned the likelihood of FATCA’s implementation in Australia providing
    material benefits to the US, pointing out that the country’s high marginal tax rate and
    strong tax department made it an unlikely home for tax evaders. “Quite apart from the
    fact that we have a very high marginal tax rate, Australia has a very robust tax regime,
    it has very strong legislation and has a very strong tax department. Our view is if you
    are going to try and hide from your obligations to pay US tax, why would you do it in Australia?” he said.”……..
    from;
    ‘The future is FATCA: Australian banks get ready for U.S. regulatory burden.’
    Aug 16 2011 Wietske Jarvis-Blees

    Those arguments are similar to observations made by Canada – as also being an unlikely place for the US to uncover UStaxevaders.

    There are also various archives of submissions (though not exhaustive) to the IRS re FATCA which might yield evidence that early objections were made by the very same institutions and entities which are now active FATCAenforcers – objections/observations which are as true today as they were when they were made pre-IGAs. The IGAs may purport to override local laws that would otherwise have made FATCA implementation/enforcement illegal in local jurisdictions – but as we see in Canada (Charter of Rights, Constitution, provincial laws and jurisdiction governing credit unions, Privacy rights), it is still an open question whether there are some local laws/rights which the IGAs cannot circumvent or which remain to be proven as overridden.

    For ex. of some archived FATCA submissions see http://www.bsmlegal.com/fatca-comments.asp

    Use the ‘find’ function to search the submissions to the IRS. For example, this one below is very useful in that it highlights several legal issues (privacy, data protection, prohibited discrimination on grounds of nationality) that the ANZ banking group (and others) raised early on;

    ex. “…..terminating or denying to provide banking services on the grounds of nationality (in this case, on the grounds of their US status) could be construed as a breach of various local anti-discrimination laws. Further consultation with relevant anti-discrimination authorities in those countries would be required to understand if this view would be taken in these circumstances..”….
    from;
    [TEXT OF THE FATCA COMMENT LETTER SUBMITTED BY
    AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED]
    7 June 2011
    http://www.bsmlegal.com/PDFs/FATCA_ANZBankGrp.pdf

13. Says ATO responsible for interpretation and application of tax treaties. Thus it appears that the ATO did not do its job identifying and flagging tax treaty gaps to Parliament. And while the Australian – US tax treaty was implemented a number of years ago, tax treaty gaps and changing US taxes and compliance laws mean a changing impact on Australians who also are US persons.

    https://www.law.unimelb.edu.au/files/dmfile/2013IFApresentationtreaties2.pdf

    May we find some new angles with the above?

14. Timing is everything

    Get your opinion heard

    malcolm.turnbull.mp@aph.gov.au

    https://www.facebook.com/malcolmturnbull

    https://twitter.com/search?q=twitter+malcolmturnbull&ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Esearch

15. https://www.facebook.com/AmbassadorBerry/posts/158717907802713?comment_id=158776497796854&offset=0&total_comments=1

    Got through.

    TJ

16. You can’t avoid your filing obligations even if you decide to renounce your U.S. citizenship ????

    http://www.huffingtonpost.ca/cleo-hamel/foreign-account-tax-compliance-act_b_8133274.html

17. Anyone else care to comment

    https://www.facebook.com/AmbassadorBerry/posts/158717907802713?comment_id=158776497796854&offset=0&total_comments=1

18. https://www.change.org/p/change-from-a-citizenship-based-form-of-taxation-to-a-resident-based-form-of-taxation-so-that-american-expatriates-are-not-double-taxed-for-living-abroad?recruiter=31766037&utm_source=share_petition&utm_medium=facebook&utm_campaign=share_page&utm_term=des-lg-share_petition-no_msg&fb_ref=Default

19. At the recent citizenship meeting we stated that under the protection of full Australian citizenship we should not be subject to the domestic law, including tax law (FATCA legislation) of a foreign country on Australian soil.  
    We learned that MP’s involved in the FATCA implementation including those on Human rights commission that scrutinise bills in parliament don’t accept that there is any discrimination based on citizenship with the implementation of FATCA, but are of the view that the long arm of the IRS would not be able to penetrate Australian jurisdiction for anything other than the information collected through FATCA.  
    So if MPs believe that this is not a citizenship issue, then we are chasing confirmation of an official Australian government position on enforcement and collection on behalf of the IRS. (Of highest priority given the Canadian FATCA Court decision)
    However we must continue the citizenship clarification for protection also as without full citizenship and as second class citizens we are open to continual, ongoing and debilitating ill-treatment for all matters of standing and stature under Australian jurisdiction and in the Australian society.  
    Clarification of full, equal and privileged Australian citizenship would remove without any doubt the ambiguity of the tax treaty under which the US wants to (ambiguously) claim you for tax purposes with total disregard for Australian citizenship.
    FATCA INDCIA is seeking unambiguous evidence of US citizenship so you can be a US person for taxes.   As it stands now your Australian citizenship on Australian soil is nullified by the will and whim of the US tax code.  
    Or to put it another way the only clarification, definition and determinant of your Australian citizenship under Australian jurisdiction is through the US tax code via the tax treaty.  
    That claim on your citizenship – to repeat – is an ambiguous methodology (CITIZENSHIP, IT TURNS OUT IS NOT ABSOLUTE—IT IS RELATIVE TO VARIOUS SITUATIONS AND INTERPRETATIONS) to establish an unambiguous status of nationality. 
    As noted in a previous paper we are Australian Nationals in the first instance by naturalisation and by the Master Nationality Rule in international law.  
    An individual may qualify as a national in two or more different States, but under international law only one of those nationalities can be dominant and effective at a particular point of time.  

    There can be no more profound unambiguous clarification, definition and determinant than international law—certainly not the US tax code

20. Care to also comment

    Chip Rolley as an American REQUIRED ro pay US tax AND File can you help http://isaacbrocksociety.ca/fatca-and-australia/#comments

    https://twitter.com/abcthedrum

    https://www.facebook.com/abcthedrum

21. O’Dwyer, Kelly (MP)
    ,
    Thank you for your enquiries to my office and recent emails regarding Treasury matters.

    I am making enquiries with Treasury and will respond to your concerns as soon as I am in a position to do so.

    Kind regards,

    Kelly

    The Hon Kelly O’Dwyer MP
    Federal Member for Higgins
    Parliamentary Secretary to the Treasurer

    A Suite 1, 1343 Malvern Rd, Malvern VIC 3144
    P 03 9822 4422 F 03 9822 0319
    E kelly.odwyer.mp@aph.gov.au
    W http://www.kellyodwyer.com.au
    ___________________________________________________________

    Thanks Kelly

    Good luck with new Government

    Please have your aides review content on

    http://isaacbrocksociety.ca/fatca-and-australia/#comments

22. @Alby,

    Has the minister who you talked to about FATCA and CBT got back to you yet?

23. O’Dwyer, Kelly (MP)
    Dear

    Thank you for your feedback to my office and email regarding your concerns regarding the issue of Australian resident United States (US) citizens being taxed in the US on their Australian superannuation entitlements. I have noted your concerns.

    I have raised this issue with the Department of Treasury. They have advised that you have corresponded directly with the Department and that they responded formally earlier this year.
    I have attached their correspondence for your records.

    Thank you again for your enquiry

    Kind regards
    Kelly
    The Hon Kelly O’Dwyer MP
    Federal Member for Higgins
    Parliamentary Secretary to the Treasurer
    A Suite 1, 1343 Malvern Rd, Malvern VIC 3144
    P 03 9822 4422 F 03 9822 0319
    E kelly.odwyer.mp@aph.gov.au
    W http://www.kellyodwyer.com.au

    Correspondence added earlier from David Pearl (now not working for treasury)

    Anyone else care to try ?

24. @AU
    We will commence contact this week. MP”s are in Canberra, last day today.

    @Jakdac
    That treasury letter is a piece of useless information. How can an individual take this issue up with the US govt?
    It demonstrates how the govt.will view our issues, by the letter of the law as FATCA has been legislated.
    And refer to the Canadian judges decision. ITS THE LAW.
    To bad we don’t have Charter of Rights like most of the world does.

25. The letter referred to is a pdf put in this section by
    calgary411 on September 8, 2015 at 8:12 pm

    I have referred Kelly to have advisers read this blog thus her response to concerns SHOULD have been evident to her by the many queries us AU/US duals have these do NOT seem to have been addressed. If II ALREADY received a response would it not be evident that the response did not adequately address the issues presented in this blog and many newspaper articles I have forwarded to her and the treasury.

    Anyone else care to email Treasury as a taxpaying citizen and ask SPECIFIC questions (as JC did with with Kim Beasley’s response) and share your responses ??

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