FATCA and Australia – Part 1 of 2
January 2020: This thread continues at FATCA and Australia – Part 2 of 2.
Let’s Fix the Australia/US Tax Treaty! The Australia/US tax treaty needs urgent revision to prevent double taxation. Get involved at www.FixTheTaxTreaty.org
Posts on The Isaac Brock Society website concerning FATCA and Australia
For articles on other websites, see Media and Blog Articles
For general discussion of FATCA, see FATCA Discussion Thread
For links to some websites and contact info (government, organisations, tax information), see Australia Information Links
25: John Richardson and Karen Alpert Session in Brisbane Australia Oct 25, 2018
August 2018
01: U.S., U.K., Canada, Australia and Netherlands form international tax enforcement group
January 2018
July 2017
March 2017
13: What Lessons Can Be Learned from the Sad Stories of “IRS Compliant” Australians Shaun and Mary?
November 2016
30: “Solving U.S. Citizenship Problems” – Online January 9, 2017 (Australia)
August 2016
25: Let’s Fix the Australia/US Tax Treaty!
May 2016
15: Australia: Dealing with Superannuation
February 2016
19: #Australia funds America’s #FATCA #Ethnic Identification System
September 2012
27: Last Day to make a FATCA submission to the Australian Govt
August 2012
28: Australian Government wants YOU to tell them what to do about FATCA
July 2012
20: Australian Financial Services Council lobbies Washington for FATCA exemption
@JakDac, did you get a reply from the Member for Kennedy?
In short that was the reply from Bob Katter – Federal Member for Kennedy
“your correspondence is important and has been noted.”
Robyn MacFarlane BBus(Mgt)
Office of Hon Bob Katter MP | Member for Kennedy
Innisfail | Phone 07 4061 6066 | Fax 07 4061 6566 |
Canberra | Phone 02 6277 4978 | Fax 02 6277 4978 |
Email: robyn.macfarlane@aph.gov.au | Website: http://www.bobkatter.com.au |
Facebook: http://www.facebook.com/bobkattermp | Twitter: @RealBobKatter |
I think it would be worth MANY people emailing as he seems to speak out on issues
@JC
We feel we have bombarded the MP with a lot of information already, including the 2 x visits and don’t want to jeopardize the relationship. The best strategy is to let them come back to us with their inquiry’s which they indicated they would.
We can then approach them on these points from your letter:
1)Initiate a Parliamentary Inquiry (Was discussed with MP)
2)Request the ATO to report to Parliament on: Australia – US Tax Treaty Gaps impacting Australian tax residents (is stated in submissions the disparity between the 2 treaties)
3)Request the ATO to amend their misleading website information
4)Refer the matter to the Australian Human Rights Commission
We can send consultant / lobbyist your letter and ask them to assist us on how to engage a strategy going forward on the 4 points and also to gauge where all this sits politically if there is any impetus behind what we are doing.
Be good to have some donations coming in (like the Canadians have raised funds) to assist in consultant / lobbyist fees. The awareness isn’t out there in Australia with only 70,000 US compared to 1,000,000 Canadians.
We are only a small bunch here on Brock lurking in the shadows.
Hidden behind a side bar link called Country Specific Posts, and then another link called Australia
Do you ever feel we are in the minority here in our little Australia box and the Canadians dominate this place.
I almost feel discriminated HaHa
@Alby – Maybe we might succeed where the Canadians have not.
There are only a few active in Australia. Most I met are in bliss. One I know in terror to dare not speak out.
from JC on
http://isaacbrocksociety.ca/2014/07/28/human-rights-complaint-on-behalf-of-all-u-s-persons-abroad-has-now-been-submitted/comment-page-11/#comment-6735736
How about a LOT of people emailing in and examine responses
JC says
October 21, 2015 at 4:53 pm
@All In Australia we had a bit of a go with The Australian Human Rights Commission.
I put this letter together here: See assistance request #4 at the end: Refer the matter to the Australian Human Rights Commission http://isaacbrocksociety.ca/fatca-and-australia/comment-page-20/#comment-6726208
@JakDac sent that to the Commission. This is the response received. Their first line of filtering suggests back to us that the human rights abuse outlined does not fit one of their pre identified categories. Any thoughts for a next go? Do we go back to them and say that discrimination/abuse based on nationality is a form of race discrimination? [Or maybe we should try the anti discrimination body in Australia?] Any suggested wording?
RESPONSE:
I refer to your recent contact with the Commission regarding the United State of America – Australian Tax Treaty.
The Australian Human Rights Commission has the power to investigate and conciliate complaints about:
• discrimination because of a person’s race, sex, gender identity, sexual orientation, intersex status, pregnancy, marital or relationship status, age or disability as well as sexual harassment in specific areas of public life, such as, employment, education and the provision of goods and services;
• racial hatred that takes place in public;
• discrimination in employment because of a person’s criminal record, trade union activity, religion, political opinion or social origin; or
• breaches of human rights by the Commonwealth of Australia.
From the information you have provided it is unclear whether the Commission’s Investigation and Conciliation Section can help you with this matter.
If you have not done so, you may wish to contact your local Federal Member of Parliament.
Should you have any further queries, please advise by return email or call the National Information Service on 1300 656 419.
Kind regards
Bethany Hender
National Information Service
Australian Human Rights Commission
Level 3, 175 Pitt St, Sydney NSW 2000
GPO Box 5218, Sydney NSW 2001
T 1300 656 419 F +61 2 9284 9611
E infoservice@humanrights.gov.au W http://www.humanrights.gov.au
Read page 17 from the Regulation Impact Statement
PDF]Regulation Impact Statement – Parliament of Australia
http://www.aph.gov.au/~/media/Committees/Joint/Treaties/…/fatca_ris.pdf?la=enAustralian anti-discrimination law
Australian Commonwealth law governing discrimination on the grounds of race is broadly
intended to give effect to Australia’s obligations under the International Convention on the
Elimination of All Forms of Racial Discrimination. These obligations are to promote equality
before the law for all persons, regardless of their race, colour or national or ethnic origin, and
to make discrimination against people on the basis of their race, colour, descent or national or
ethnic origin unlawful.
FATCA requires the interrogation or closure of customer accounts based on US citizenship.
A person’s citizenship refers to their nationality. The fact that FATCA specifically targets US
citizens means that it is specifically targeting certain persons, based on their nationality.
It is unlikely that this would be inconsistent with Commonwealth laws governing
discrimination on the grounds of race. For the purposes of the Racial Discrimination Act
1975, and under Australian courts’ jurisprudence in relation to that Act, a distinction made on
the basis of a person’s citizenship is not a distinction based on race, colour, descent or
national or ethnic origin.
A distinction based on nationality may, however, be inconsistent with some Australian State
and Territory laws governing discrimination on the grounds of race, on the basis that, race is
defined in these laws as including nationality (which would refer to citizenship). This means
that, in contrast to Commonwealth laws governing discrimination on the grounds of race, it is
generally unlawful to discriminate on the basis of a person’s nationality in certain Australian
States and Territories.
…which is why US (or any countries’) citizenship-based taxation, based on birthplace or birthplace of their parents and without an individual person’s consent, should not make sense to anyone. That is, indeed, exceptional and discriminatory.
Read Fatca Explanatory Memorandum pg 24 http://www.austlii.edu.au/au/legis/cth/bill_em/tlaotfab2014510/memo_0.html
2.19 However, in its General Recommendation No. 30, the
Committee on the Elimination of Racial Discrimination (ICERD
Committee) stated its view that, differential treatment based on
citizenship or immigration status will constitute discrimination if the
criteria for such differentiation, judged in the light of the objectives and
purposes of the Convention, are not applied pursuant to a legitimate aim
and are not proportional to the achievement of this aim`
2.20 In other words, differential treatment would not amount to
discrimination under international human rights law if the different
treatment meets the proportionate test for legitimate differential treatment.
Then read Treaties—Joint Standing Committee—Reports http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A“publications%2Ftabledpapers%2Fa272926a-f78e-4d50-b642-e34f88bfa935”
3.64 The Committee believes that FATCA represents a disproportionate response, and notes the view expressed by Treasury that:
56 NIA, para 48. 57 Mr Wood, Treasury, Committee Hansard, Canberra, 16 June 2014, p. 6.
24 REPORT 141: TREATIES TABLED ON 19 MARCH AND 13 MAY 2014
…Everybody acknowledges it is a weapon.58
@Alby,
Isn’t there a distinction in British English between nationality and citizenship? For example, Scottish, Welsh, English and Northern Irish are different nationalities, but they are all UK citizens. (Is that right?) American English also has a distinction between nationality and citizenship (cf. American Samoans). I wonder what difference between nationality and citizenship there might be in Australian English.
From the RIS conclusion http://www.austlii.edu.au/au/legis/cth/bill_em/tlaotfab2014510/memo_0.html
3.188 US citizens who reside in Australia are generally opposed to the
conclusion of an IGA on the grounds that it could expose them to IRS
enforcement action. While the IGA would not provide any special
concessions for such US citizens, the US offers an Offshore Voluntary
Disclosure Program (OVDP) for US taxpayers to get their US tax affairs
in order. The OVDP would allow US taxpayers with undisclosed foreign
accounts and unreported income to seek protection from criminal
prosecution. However, US citizens have complained that the OVDP is
only attractive where the individual only has a small amount of US tax
outstanding.
Does the Aust Govt accept that the Bank records of 77000 Aus US duals and Lawful permanent residents are undisclosed foreign accounts to the US. And that we are all criminal tax cheats and hiding money from the US if we don’t enter the OVDP.
@All,
The MP offices I have spoken to have NOT had a very good understanding of FATCA. My question to them is how can you vote on legislation that you do not fully understand the impacts the legislation will have on Australians? They usually do not have an answer that question.
any comments or other experiences
@AU
Start educating them, send to them the Joe Citizen letter
Are others sending their comments ?? Feel free
Bethany Hender
National Information Service
Australian Human Rights Commission
Level 3, 175 Pitt St, Sydney NSW 2000
GPO Box 5218, Sydney NSW 2001
T 1300 656 419 F +61 2 9284 9611
E infoservice@humanrights.gov.au W http://www.humanrights.gov.au
Just talked to Geoff Martz nice guy
http://isaacbrocksociety.ca/2015/10/19/interview-opportunity-abc-news-nightline-would-like-to-interview-an-american-living-abroad-who-is-in-the-process-of-renouncing-his-or-her-us-citizenship/comment-page-2/
He is going to send me some questions regarding why people renounce
He is on a steep learning curve he was not aware of many of the issues at hand / Exit tax / calculations/ Boris / etc.etc
Hopefully on a separate forum I will copy and paste his questions
Please keep to bullet point short and concise
I will cut and paste them to him
Perhaps indications of relevant points brought out may help (like)
Commonwealth Racial Discrimination Act 1975
Section 10
“If, by reason of, or a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent that persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first—mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin”
FATCA does make negative distinctions in relation to information gathering and transmitting of sensitive personal and financial information which does not apply to citizens (race) of non-US countries. The different rules for information gathering and sharing should not apply in respect of citizenship. How the authors of the RIS can draw this biased and erroneous conclusion in 3.72 is demonstration of the unsoundness of the FATCA legislation.
FYI
The first example is citizenship-based taxation, which dates back to the Civil
War income tax in the US. No other major country has adopted this rule, and
for good reason: It is far from clear that even the US can enforce it effectively,especially since US citizenship can be acquired by merely being born there. Most of the problems with FATCA stem from taxing US citizens living permanently overseas
•Reuven Avi-Yonah (Michigan) Constructive Unilateralism : US Leadership and International Taxation
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2622868
Here’s some feedback from an Australian born citizen who”s parent are US born AUS-US duals who got their Aussie born children US citizenship, so in effect they would be considered dual citizens.
“We had a meeting with the Tax Lawyer and he didn’t seem to fussed with the whole thing truth be told I don’t think he read much of what I sent him beforehand.
He didn’t think there was a lot of concern for me and my siblings as we were all born and have lived in Australia our whole lives but after some discussion he did think that my parents could have some issues, especially if they sell assets in the US and bring the proceeds back to Australia
His interpretation of the whole thing is that is it designed to catch out the big multi nationals and corporation’s trying to hide funds from the IRS and ATO oversees but at the same time can be used to catch the little guys and individuals and in most cases the effort of pursuing individuals does not produce a cost benefit to make it a worthwhile exercise
His suggestion for us was to not renounce as that would, as we have said before, probably raise a red flag and start an investigation and if it has been legislated and is law to try and have change and overturned would be highly unlikely and that lobbying is expensive and there is no guaranteed outcome
He also suggested that in our case we should remove my US born parents name from anything associated with our companies, trusts and assets he also suggested a strategy to transfer parents’ house over to one of the trusts that they are not attached to over to one that is under control of my other siblings and I and to make our parents nothing more than employees of the company even going so far as to keep their bank accounts under the 50K.
Some newbies may want to read old happenings and re address again to officials
(we are not forgetting)
http://isaacbrocksociety.ca/fatca-and-australia/comment-page-1/
From good old David / Met with Finance committee previously
https://www.facebook.com/heitordavid.pinto
I contacted the staff of the Senate Finance and Ways and Means committees again but they didn’t respond, so I decided to contact individual congressmen. I got three meetings scheduled so far, all with Republican staff. Two are next week, one the following week. Two are high level staff, one I already met before. I’ll post something on Facebook soon.
@Alby,
I understand what you are saying but this means that the government can simply treat us like second class citizens and we are simply excepting it.
I feel you have made some really good headway with the MP (more than me anyway).
We have right on our side!
@Alby Perhaps not a US Tax Lawyer. Transferring ownership of house – stamp duty AU potential Capital Gains US. Then you transfer into a trust and there gains are taxed by AU. Company – transferring ownership sounds like a sales event. Sounds like a suggestion is become a smaller target and that is a good one. Gifting within US limits also part of this.
Here’s an interesting article RE: FATCA & China & what the future may yet hold:
http://www.internationalman.com/articles/schadenfreude-how-the-us-is-helping-china-create-a-new-financial-order
That is indeed a very interesting look at what the future might hold, Jane. Thanks for finding and providing here that commentary that includes the FATCA factor.
@calgary41 Thanks. The other, internal links in that article, point to another great set of FATCA-specific articles, too.
http://www.foxnews.com/opinion/2015/10/27/pro-family-pro-growth-tax-reform-for-21st-century.html
I will also shift to a territorial tax system, thus ending the double-taxation of profits earned abroad for both businesses and individuals